Opinion

SHELBY COUNTY ALA. v. Holder

811 F. Supp. 2d 424
2011 U.S. Dist. LEXIS 107305
2011 WL 4375001

Court: District Court, District of Columbia
Filed: Sep 21, 2011
Status: Published
Author: Bates
On the bench: John D. Bates
Cited by: 13 cases
Authority: More cited than 74.0%

explaining that Congress did not renew the coverage formula to punish past sins, but rather because it found “substantial evidence of contemporary voting discrimination by the very same jurisdictions that had histories of unconstitutional conduct”

How later courts described this case

explaining that Congress did not renew the coverage formula to punish past sins, but rather because it found “substantial evidence of contemporary voting discrimination by the very same jurisdictions that had histories of unconstitutional conduct”
describing "several plausible explanations for th[e] failure to seek bailout," including "the minimal administrative cost associated with preclearance, and the fact that covered jurisdictions see no need to avoid the preclearance requirement"
describing section 5 actions against Mississippi and Waller County, Texas, "in which the unprecleared voting changes appeared to have been motivated by discriminatory animus"

Written by the judges who cited it.

The opinion

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MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Section 5 of the Voting Rights Act of 1965 (“the Act”) prevents certain “covered” jurisdictions from implementing any change to voting practices or procedures unless and until the jurisdiction demonstrates to federal authorities that the change “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.” 42 U.S.C. § 1973c. Praised by some as the centerpiece of the most effective civil rights legislation ever enacted, Section 5 has been condemned by others as an impermissible federal encroachment on state sovereignty. In 2009, the Supreme Court addressed Congress’s 2006 extension of Section 5 and, although avoiding the merits of a facial constitutional challenge to Section 5’s “preclearance” obligation, nonetheless expressed concern about the provision’s continued vitality, noting that “[t]he Act’s preclearance requirements and its coverage formula raise serious constitutional questions.”

Nw. Austin Mun. Util. Dist. No. One v. Holder,

557 U.S. 193 , 129 S.Ct. 2504, 2513 , 174 L.Ed.2d 140 (2009)

(“Nw. Austin II”).

Today, those serious constitutional questions can no longer be avoided. Shelby County, Alabama (“Shelby County” or “plaintiff’), a jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), has brought this suit against the Attorney General (“defendant”) seeking a declaratory judgment that Section 5 and Section 4(b) are facially unconstitutional, and a permanent injunction prohibiting defendant from enforcing these provisions. Compl. ¶¶ 1, 44(a)(b). Specifically, Shelby County alleges that Section 4(b)’s coverage formula and Section 5’s preclearance obligation for covered jurisdictions exceed Congress’s enforcement authority under the Fourteenth and Fifteenth Amendments, and violate the principle of “equal sovereignty” embodied in the Tenth Amendment and Article IV of the U.S. Constitution.

Id.

¶¶ 36-43.

This Court is mindful that “judging the constitutionality of an Act of Congress is ‘the gravest and most delicate duty that [it] is called on to perform.’ ”

Nw. Austin II,

129 S.Ct. at 2513 (quoting

Blodgett v. Holden,

275 U.S. 142, 147-48 , 48 S.Ct. 105 , 72 L.Ed. 206 (1927) (Holmes, J., concurring)). That duty is all the more sensitive where, as here, the challenged statute seeks to enforce the core Fifteenth Amendment prohibition against denial of the franchise on the basis of race. The Fifteenth Amendment provides that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” U.S. Const. amend. XV, § 1. Yet 95 years after the Amendment’s ratification, the struggle for the realization of this constitutional guarantee was far from complete.

See

H.R.Rep. No. 89-439 (1965), 1965 U.S.C.C.A.N. 2437, 2439. In 1965, literacy tests, poll taxes, and other devices were still being “widely used” in certain regions of the country as part of “a calculated plan to deprive Negroes of their right to vote.”

Id.

at 2443. When traditional litigation proved ineffective to counter “those determined to circumvent the guarantees of the 15th amendment,”

id.

at 2441, Congress decided that “the wrong to our citizens is too serious — the damage to our national conscience is too great not to adopt more effective measures than exist today,”

id.

at 2442. Hence, almost a century after the Fifteenth Amendment was ratified, Congress passed the Voting Rights Act of 1965 — with Section 5 at its core — in order “to make the guarantees of the Fifteenth Amendment finally a reality for all citizens.”

Allen v. State Bd. of Elections,

393 U.S. 544, 556 , 89 S.Ct. 817 , 22 L.Ed.2d 1 (1969). Congress reauthor

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ized the Act three times (in 1970, 1975 and 1982), and the Supreme Court upheld each reauthorization against constitutional challenges.

See Nw. Austin II,

129 S.Ct. at 2510 .

Certainly, today Section 5’s continued constitutionality “must be judged with reference to the historical experience which it reflects.”

South Carolina v. Katzenbach,

383 U.S. 301, 308 , 86 S.Ct. 803 , 15 L.Ed.2d 769 (1966). But the Supreme Court has also made clear that history alone cannot provide a valid basis for upholding Section 5 indefinitely; rather, “the Act imposes current burdens and must be justified by current needs.”

Nw. Austin II,

129 S.Ct. at 2512 . This Court has now carefully reviewed the extensive 15,000-page legislative record that Congress amassed in support of its 2006 reauthorization of Section 5 and Section 4(b). It is, of course, Congress that is charged in the first instance under the Fifteenth Amendment with formulating the legislation needed to enforce it.

Id.

at 2513. Bearing in mind both the historical context and the extensive evidence of recent voting discrimination reflected in that virtually unprecedented legislative record, the Court concludes that “current needs” — the modern existence of intentional racial discrimination in voting — do, in fact, justify Congress’s 2006 reauthorization of the preclearance requirement imposed on covered jurisdictions by Section 5, as well as the preservation of the traditional coverage formula embodied in Section 4(b). Applying the standard of review articulated by the Supreme Court in

City of Boerne v. Flores,

521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997), this Court finds that Section 5 remains a “congruent and proportional remedy” to the 21st century problem of voting discrimination in covered jurisdictions.

BACKGROUND

I. The History of the Voting Rights Act of 1965

The Voting Rights Act of 1965 “was designed by Congress to banish the blight of racial discrimination in voting.”

Katzenbach,

383 U.S. at 308 , 86 S.Ct. 803 . Although the Fifteenth Amendment guaranteed African-American citizens the right to vote as early as 1870, southern states quickly responded by creating a series of voting qualifications and devices to perpetuate black disenfranchisement.

See id.

at 310-311 , 86 S.Ct. 803 ;

see also

H.R.Rep. No. 89-439, at 2439-40. None of this new voting legislation mentioned race on its face, but it was nonetheless “motivated entirely and exclusively by a desire to exclude the Negro from voting.” H.R.Rep. No. 89-439, at 2443, 2451. Southern states imposed poll taxes, which disproportionately burdened African-Americans as a result of their comparatively lower incomes.

See id.

at 2451-53. They enacted literacy requirements as a precondition to voting “based on the fact that as of 1890 ... more than two-thirds of the adult Negroes [in southern states] were illiterate while less than one-quarter of the adult whites were unable to read or write.”

Katzenbach,

383 U.S. at 311 , 86 S.Ct. 803 . And they adopted alternate tests, such as grandfather clauses and property qualifications, in order to “assure that white illiterates would not be deprived of the franchise.”

Id.

Not only were these tests intentionally discriminatory in their design, but southern voting officials were given unfettered discretion to administer them in a discriminatory fashion. Officials would refuse to accept poll taxes from blacks seeking to pay them, or would withhold poll tax exemption certificates from otherwise-qualified black applicants.

See

H.R.Rep. No. 89-439, at 2452. They would provide

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whites with “easy versions” of literacy tests or excuse them altogether, but demand that blacks pass “difficult versions ... without the slightest error.”

Katzenbach,

383 U.S. at 312-13 , 86 S.Ct. 803 . Other voting qualifications — including the infamous “good-morals requirement” and “constitutional interpretation” tests — were so inherently “vague and subjective” that they “constituted an open invitation to abuse at the hands of voting officials.”

Id.

In addition to these methods of direct disenfranchisement, southern officials before 1965 also enacted laws designed to dilute black voting strength, if and when blacks were able to register and cast ballots. Specifically, southern officials “gerrymandered election districts, instituted at-large elections, annexed or deannexed land as it fit their racial and partisan interests, and required huge bonds of officeholders.” J. Morgan Kousser,

The Strange, Ironic Career of Section 5 of the Voting Rights Act, 1965-2007,

86 Tex. L. Rev. 667 , 678-79 (2008);

see also

Examine the Impact and Effectiveness of the Voting Rights Act, Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary,

109th Cong. 1138 (Oct. 18, 2005)

(“Impact and Effectiveness”)

(Chandler Davidson and Bernard Grofman, eds.,

Quiet Revolution in the South: The Impact of the Voting Rights Act 1965-1990

(Princeton University Press 1994)). These tactics aimed at reducing the ability of blacks to elect candidates of their choice — sometimes referred to as “[disenfranchisement by indirection”— were widely employed throughout the South in the late nineteenth century, and they reemerged during the “Second Reconstruction” of the mid-twentieth century as well.

See

Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary,

109th Cong. 142 (Mar. 8, 2006) (hereinafter, “1

Evidence of Continued Need

”) (National Commission on the Voting Rights Act,

Protecting Minority Voters: The Voting Rights Act at Work

1982-2005 (Feb. 2006) (hereinafter, “Nat’l Comm’n Report”));

see also An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Hearing Before the S. Comm. on the Judiciary,

109th Cong. 206 (May 9, 2006)

(“Introduction to Expiring Provisions ”)

(prepared statement of Chandler Davidson).

The Supreme Court eventually responded to these attempts to evade the requirements of the Reconstruction Amendments by striking down some of the most egregious practices used to impede blacks from effectively exercising their right to vote.

See Katzenbach,

383 U.S. at 311-12 , 86 S.Ct. 803 (internal citations omitted). The Court invalidated grandfather clauses in 1915,

see Guinn v. United States,

238 U.S. 347 , 35 S.Ct. 926 , 59 L.Ed. 1340 (1915);

Myers v. Anderson,

238 U.S. 368 , 35 S.Ct. 932 , 59 L.Ed. 1349 (1915); outlawed the so-called “white primary” in 1944,

see Smith v. Allwright,

321 U.S. 649 , 64 S.Ct. 757 , 88 L.Ed. 987 (1944); and condemned racial gerrymandering in 1960, when the city of Tuskegee, Alabama, attempted to transform its square-shape into “a strangely irregular twenty-eight-sided figure,” which had the effect of removing “from the city all save four or five of its 400 Negro voters while not removing a single white voter or resident,”

Gomillion v. Lightfoot,

364 U.S. 339, 341 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960).

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Congress also responded to southern states’ sophisticated disenfranchisement strategies by enacting civil rights legislation in 1957, 1960, and 1964, which sought to “facilitat[e] case-by-case litigation against voting discrimination.”

Katzenbach,

383 U.S. at 313 , 86 S.Ct. 803 . But it soon became apparent that “case-by-case” litigation would not be sufficient to protect African-Americans’ access to the ballot.

See

H.R.Rep. No. 89-439, at 2440-41. Not only was litigation expensive and slow, but even where it proved successful, southern officials would often ignore court orders, “close[ ] their registration offices to freeze the voting rolls,” or “merely switch[] to discriminatory devices not covered by the federal decrees.”

Katzenbach,

383 U.S. at 314 , 86 S.Ct. 803 . As Congress explained, “[b]arring one contrivance too often has caused no change in result, only in methods.” H.R.Rep. No. 89-439, at 2441. Hence, in 1965 Congress decided that “sterner and more elaborate measures” were needed to combat the “insidious and pervasive evil which had been perpetrated in certain parts of our country through unremitting and ingenious defiance of the Constitution.”

Katzenbach,

383 U.S. at 309 , 86 S.Ct. 803 .

To craft these measures effectively, the Senate and House Committees on the Judiciary held hearings for nine days, during which they discussed 122 proposed voting rights bills and heard testimony from 67 witnesses.

See id.; see also

H.R.Rep. No. 89-439, at 2438. The House debated the legislation for three full days, while the Senate discussed the Act for almost a month.

See Katzenbach,

383 U.S. at 308 , 86 S.Ct. 803 . Ultimately, when it came time to vote, “the verdict of both chambers was overwhelming”: the Voting Rights Act of 1965 passed by a margin of 328-74 in the House, and 79-18 in the Senate.

Id.; see also

Voting Rights Act of 1965 (“1965 Act”), Pub. L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973

et seq.).

The Act’s basic prohibition against racial discrimination in voting is contained in Section 2, which provides that “[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973 . Although Section 2 echoes the language of the Fifteenth Amendment, at least since 1982 it has been interpreted to prohibit a broader category of conduct than that which the Amendment itself proscribes, as it forbids all electoral practices with discriminatory “results,” not just those enacted with a discriminatory purpose.

Compare City of Mobile v. Bolden,

446 U.S. 55, 62 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980) (holding that Section 2 merely restates “the prohibitions already contained in the Fifteenth Amendment” and that “racially discriminatory motivation is a necessary ingredient of a Fifteenth Amendment violation”)

with

S.Rep. No. 97-417, at 28 (1982), 1982 U.S.C.C.A.N. 177, 206 (explaining Congress’s intent to amend Section 2 in response to

City of Mobile

to make clear that a plaintiff can establish a Section 2 violation “without proving any kind of discriminatory purpose”). Other provisions of the Voting Rights Act ban poll taxes, 42 U.S.C. § 1973h, prohibit voter intimidation and coercion, 42 U.S.C. § 1973i(b), and establish civil and criminal sanctions for the deprivation of rights secured by the Act, 42 U.S.C. § 1973j.

In addition to these permanent provisions — which apply nationwide — the Act sets forth “a complex scheme of stringent remedies aimed at areas where voting discrimination has been the most flagrant.”

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Katzenbach,

383 U.S. at 315 , 86 S.Ct. 803 . These targeted provisions are temporary, and only apply to jurisdictions that are “covered” under Section 4(b). For example, Section 4(a) of the Act bans the use of voting tests in all covered jurisdictions,

see

42 U.S.C. § 1973b(a), while Section 8 authorizes the Attorney General to send federal observers to enter polling places and monitor elections in covered jurisdictions when “necessary to enforce the guarantees of the 14th or 15th amendment,” 42 U.S.C. § 1973f(a)(2);

see also

H.R.Rep. No. 109-478, at 91 (2006).

Section 5, however, remains the most innovative — and the most controversial — of the Act’s targeted, temporary provisions. Under Section 5, a covered jurisdiction cannot make any changes to its voting qualifications, standards, practices, or procedures unless those changes are first “submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.”

See Nw. Austin II,

129 S.Ct. at 2509 ; 42 U.S.C. § 1973c. Preclearance under Section 5 will only be granted if a jurisdiction can show that its proposed voting change “neither ‘has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.’ ”

Nw. Austin II,

129 S.Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)).

Section 5 constituted a direct response to the “common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.”

Beer v. United States,

425 U.S. 130, 140 , 96 S.Ct. 1357 , 47 L.Ed.2d 629 (1976). Prior to 1965, such novel methods of minority disenfranchisement would continue to operate “until the Justice Department or private plaintiffs were able to sustain the burden of proving that the new law, too, was discriminatory.”

Id.

But with the passage of Section 5, Congress “shift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim,”

Katzenbach,

383 U.S. at 328 , 86 S.Ct. 803 . Rather than requiring minority voters to sue to challenge discriminatory voting practices after their implementation, Section 5 places the burden on covered jurisdictions to show their voting changes are nondiscriminatory

before

those changes can be put into effect.

See id.

If a jurisdiction covered by Section 5 chooses to submit its proposed electoral change to the Attorney General for preclearance, and the Attorney General does not interpose an objection to the change within 60 days, the change may be implemented as proposed.

See

42 U.S.C. § 1973c(a);

see also

James Thomas Tucker, The

Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006,

33 J. legis. 205, 254-55 (2007) (describing the debate over the Norwood Amendment). Under that formula, which remains in existence today, a jurisdiction is subject to preclearance if it maintained a voting test or device in 1964, 1968, or 1972, and had voter turnout or registration below 50% in that year’s presidential election.

See

42 U.S.C. § 1973b(b). Currently, there are 16 states covered in whole or in part by Section 4(b), and therefore subject to preclearance under Section 5.

See 28

C.F.R. pt. 51, app. Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered in their entirety, while portions of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota are also covered.

Id.

III.

Northwest Austin

Shortly after the 2006 Amendments became effective, a Texas municipal utility district brought suit, seeking to bail out of the Act’s requirements or, in the alternative, to challenge Section 5 on its face as “an unconstitutional overextension of Congress’s enforcement power to remedy past violations of the Fifteenth Amendment.”

See Nw. Austin I,

573 F.Supp.2d at 230 (internal quotation marks and citation omitted). Because the plaintiff-district sought a declaratory judgment that it was eligible for bailout, a three-judge panel of this Court was convened to hear the case.

See id.

(citing 42 U.S.C. § 1973b(a)(5)). The court first concluded that the district was not a “political subdivision” under Section 14(c)(2) of the Act, and thus could not petition for bailout pursuant to Section 4(a), which only authorizes states and “political subdivisions” to seek bailout.

See id.

at 230-35;

see also

§ 1973b(a)(1).

The court then proceeded to address the merits of the plaintiffs facial constitutional challenge to the 2006 reauthorization of Section 5.

Nw. Austin I,

573 F.Supp.2d at

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235-79. The court began by identifying the types of evidence of voting discrimination upon which Congress had relied in deciding to reauthorize Section 5 in 2006, which included evidence of (1) racial disparities in voter registration and turnout; (2) the number of minority elected officials; (3) objections to proposed voting changes under Section 5; (4) “more information requests” by the Attorney General in response to Section 5 preclearance submissions; (5) judicial preclearance suits brought by covered jurisdictions; (6) Section 5 enforcement actions brought by the Attorney General; (7) Section 2 litigation; (8) the dispatch of federal election observers; (9) racially polarized voting; and (10) Section 5’s deterrent effect.

Id.

at 247. In a lengthy opinion replete with citations to the legislative record, the court analyzed each of these categories of evidence to determine whether there was sufficient proof of “contemporary discrimination in voting to justify Congress’s decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years.”

Id.

at 265. Concluding that the legislative record did, in fact, contain “extensive contemporary evidence of intentional discrimination,”

id.

at 266, the court decided there was “no basis for overturning Congress’s judgment that preclearance — ‘a vital prophylactic tool[ ]’ — remains necessary,”

id.

at 279 (quoting H.R.Rep. No. 109-478, at 21).

On appeal, however, the Supreme Court reversed and remanded. In a decision that has since been criticized by some as “a questionable application of the doctrine of ‘constitutional avoidance,’ ”

see

Richard L. Hasen,

Constitutional Avoidance and Anti-Avoidance by the Roberts

Court, 2009 Sup. Ct. Rev. 181 (2009);

see also

Ellen Katz,

From Bush v. Gore to NAMUDNO: A Response to Professor Amar,

61 Fla. L. Rev. 991 , 992-93 (2009) (describing the Court’s “statutory construction” of the bailout provision in

Nw. Austin II

as “contrived”), Justice Roberts, writing for an eight-justice majority, sidestepped the “big question” of Section 5’s constitutionality by instead resolving the case on narrower, statutory grounds,

see Nw. Austin II,

129 S.Ct. at 2508 . Specifically, the Court found that the plaintiff-district qualified as a “political subdivision” eligible to petition for bailout — even though it did not register voters and was therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act.

See

42 U.S.C. § 1973l (c)(2) (defining “political subdivision” to include “any county or parish” or “any other subdivision of a State which conducts registration for voting”).

According to the Court, “the statutory definition of ‘political subdivision’ in § 14(c)(2) does not apply to every use of the term ‘political subdivision’ in the Act.”

Nw. Austin II,

129 S.Ct. at 2515 . Rather, the Court explained, the phrase “political subdivision” in Section 4(a) has a “broader” meaning than that set forth in Section 14(e)(2), and hence

“all

political subdivisions — not only those described in § 14(c)(2) — are eligible to file a bailout suit” under Section 4(a).

Id.

at 2515-17 (emphasis added). As a political subdivision of Texas “in the ordinary sense of the term,” the plaintiff-district was thus eligible to seek bailout.

Id.

at 2513. And because the district had framed its constitutional challenge to the 2006 reauthorization of Section 5 “as being ‘in the alternative’ to its statutory argument” for bailout, the majority saw no need to resolve the merits of the district’s constitutional challenge.

Id.

But the majority did take the opportunity to voice some concerns about the constitutionality of Section 5 and Section 4(b), and thereby presaged future challenges to Section 5 like that raised here by Shelby County. The Court in

Nw. Austin II

emphasized the substantial “federalism costs”

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imposed by Section 5, as well as the “dramatic improvements” in minority voter turnout and registration since the Act’s passage.

Id.

at 2511. “Things have changed in the South,” the Court wrote, explaining that minorities now register and vote at rates that “approach parity” with those of non-minorities, and that minority candidates “hold office at unprecedented levels.”

Id.

The Court conceded that these “improvements are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success,” but made clear that “[p]ast success alone ... is not adequate justification to retain the preclearance requirements.”

Id.

The Court also raised concern about the continued constitutionality of the Act’s coverage formula, noting that it is “based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions.”

Id.

at 2512. The Court cited the fact that the “racial gap in voter registration and turnout is lower in the States originally covered by § 5 than it is nationwide.”

Id.

Although the Court did not specify the precise nature of the differences between covered and non-covered jurisdictions that would be constitutionally necessary to justify Section 5’s continued selective application, it did state that “a departure from the fundamental principle of equal sovereignty requires a showing that a statute’s disparate geographic coverage is sufficiently related to the problem that it targets.”

Id.

at 2512.

After identifying “serious constitutional questions” raised by the Act’s coverage formula and preclearance requirement, however, the majority refrained from answering them.

Id.

at 2513. But Justice Thomas did not. Writing separately as the lone dissenter, he explained that he would have “decided the constitutional issue presented” and concluded “that the lack of current evidence of intentional discrimination with respect to voting renders § 5 unconstitutional.”

Id.

at 2517, 2519 (Thomas, J., concurring in judgment in part, dissenting in part). According to Justice Thomas, “the constitutionality of § 5 has always depended on the proven existence of intentional discrimination so extensive that elimination of it through case-by-case enforcement would be impossible.”

Id.

at 2524. He went on to explain that this kind of extensive intentional discrimination in voting — which led the Court to uphold the constitutionality of Section 5 on prior occasions — “no longer exists,” citing the high minority voter registration rates in states such as Alabama, Louisiana, and Mississippi.

Id.

at 2525. Justice Thomas dismissed evidence of the so-called “second generation barriers” to voting upon which Congress had relied, noting that evidence of Section 5 enforcement actions, Section 2 suits, and federal observer coverage “bears no resemblance to the record initially supporting § 5, and is plainly insufficient to sustain such an extraordinary remedy.”

Id.

at 2526. With respect to evidence of intentional voting discrimination contained in the 2006 legislative record and cited by the three-judge court, Justice Thomas found that these “discrete and isolated incidents” fell short of a “coordinated and unrelenting campaign to deny an entire race access to the ballot.”

Id.

“Perfect compliance with the Fifteenth Amendment’s substantive command is not now — nor has it ever been— the yardstick for determining whether Congress has the power to employ broad prophylactic legislation to enforce that Amendment,” he explained.

Id.

IV. Shelby County, Alabama

Echoing the arguments of Justice Thomas, Shelby County brought this suit on April 27, 2010, asserting that “it is no longer constitutionally justifiable for Con

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gress to arbitrarily impose on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify all voting changes to federal officials in Washington, D.C. for another twenty five years.”

See

Compl. ¶ 85. Shelby County’s history under the Voting Rights Act is extensive and forms a relevant backdrop to this case. As a political subdivision of Alabama, Shelby County has been subject to preclearance since 1965, based on the Attorney General’s determination that Alabama used a prohibited voting test or device on November 1, 1964, and had voter turnout of less than 50% in the 1964 presidential election.

See

28 C.F.R. pt. 51 app.; 30 Fed.Reg. 9897 (Aug. 7, 1965);

see also

42 U.S.C. § 1973b, § 1973c, § 1973l (c)(2); Compl. ¶¶ 28-29. From 1965 to the filing of this suit, the Department of Justice has received at least 682 preclearance submissions from Shelby County and jurisdictions located wholly or partially within Shelby County.

See

Def.’s Mot. for Summ. J. (“Def.’s Mot.”) [Docket Entry 54], Ex. 4, Decl. of Robert S. Berman (“Berman Decl.”) ¶ 4. Shelby County itself has submitted at least 69 proposed voting changes to the Attorney General for preclearance.

Id.

¶ 5.

Since 1965, the Department has lodged objections to five proposed voting changes submitted by jurisdictions located wholly or partially within Shelby County.

Id.

¶ 8. Shelby County was also a defendant in the so-called

Dillard

litigation in the 1980s, in which black residents of Alabama challenged the at-large system used to elect Alabama county commissioners as a violation of Section 2 of the Voting Rights Act.

See Dillard v. Crenshaw Cnty.,

640 F.Supp. 1347, 1352-54 (M.D.Ala.1986);

see also Dillard v. Baldwin Cnty. Bd. of Educ.,

686 F.Supp. 1459, 1461 (M.D.Ala.1988) (reviewing history of

Dillard

litigation);

Dillard v. Crenshaw Cnty.,

748 F.Supp. 819, 821-23 (M.D.Ala.1990) (describing Shelby County’s involvement in

Dillard).

Although Shelby County was not one of the original nine defendants in

Dillard, see Dillard,

640 F.Supp. at 1352 , the plaintiffs in

Dillard

eventually raised claims against a total of 183 Alabama cities, counties, and school boards that employed at-large methods of election, including Shelby County,

see Dillard,

686 F.Supp. at 1461 .

In the original

Dillard

lawsuit, the court concluded that the Alabama legislature had “engaged in a pattern and practice of using at-large election systems as an instrument for race discrimination.” 640 F.Supp. at 1361 . The court explained that the challenged at-large electoral systems had been created against the backdrop of Alabama’s “unrelenting historical agenda, spanning from the late 1800’s to the 1980’s, to keep its black citizens economically, socially, and politically downtrodden, from the cradle to the grave.”

Id.

at 1357 . Moreover, the court noted, the Alabama legislature had “consistently enacted at-large systems for local governments during periods when there was a substantial threat of black participation in the political process.”

Id.

at 1361 . When viewed in light of the state’s “undisputed history of racial discrimination,” it became clear that the creation of at-large methods of election — which did, in fact, have an “adverse racial impact” — “was not adventitious but rather racially inspired.”

Id.

Hence, the court found that preliminary injunctive relief with respect to the counties then defending their at-large election systems was warranted.

Id.

at 1373 .

Despite the adverse judgment against the other Alabama counties with at-large electoral systems in place, Shelby County continued to deny that its at-large method for electing county commissioners violated Section 2, and the related case against it proceeded to trial.

See Dillard,

748 F.Supp. at 822 . While the case was under

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submission, however, Shelby County entered into a consent decree with the plaintiffs, under which it agreed to change its at-large electoral system to a “single-member district scheme” with one majority-black district.

Id.

Most recently, on August 25, 2008, the Attorney General objected to a redistricting plan and 177 annexations submitted by the city of Calera, located within Shelby County.

See

Berman Decl. ¶¶ 9-10;

id.,

Att. A. Calera’s redistricting plan and annexations would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in

Dillard,

and which had elected an African-American councilman for the past 20 years.

See

Berman Decl., Att. A. In its preclearance submission to the Attorney General, Calera conceded that it had, in fact, already adopted the 177 annexations without receiving advance preclearance for them.

See id.; see also

Berman Decl. ¶ 9. After the Attorney General lodged an objection to the annexations and the city’s 2008 redistricting plan, Calera nonetheless proceeded to conduct elections based on these unprecleared voting changes.

See

Berman Decl. ¶ 11;

id.,

Att. B (“Calera Compl.”) ¶ 18.;

id.,

Att. C (“Calera Consent Decree”) at 3. The elections held under the objeeted-to plan and annexations resulted in the defeat of the African-American incumbent councilman.

See id.,

Att. D.

The Attorney General responded by bringing a Section 5 enforcement action, seeking to prohibit Calera from certifying the results of its elections “based on the district boundaries and electorate to which the Attorney General ha[d] interposed a timely objection unless and until preclearance under Section 5 ... is obtained.” Calera Compl. at 7. The case was temporarily resolved through a consent decree, and the Attorney General subsequently withdrew his objection to the 177 annexations.

See

Calera Consent Decree;

see also

Berman Decl. ¶ 15;

id.,

Att. F. The Attorney General did not, however, withdraw his objection to the 2008 redistricting plan.

See

Berman Decl. ¶ 15;

id.,

Att. F.

Because of the Attorney General’s objection to Calera’s proposed voting changes, Shelby County argues that it is not eligible for bailout. Compk ¶ 34(b) (citing 42 U.S.C. § 1973b(a)(1)(E)).

As a result of its alleged ineligibility for bailout and the 2006 reauthorization of Section 5, Shelby County claims that it now “will have to regularly seek preclearance in the near future” — a process that, historically, has required the expenditure of “significant taxpayer dollars, time, and energy.”

See id.

¶¶ 32-33; Pb’s Mot. for Summ. J. (“Ph’s Mot.”) [Docket Entry 5], Decl. of Frank C. Ellis, Jr. (“Ellis Decl.”) ¶¶ 7-8.

Shelby County does not challenge any specific application of Section 5 to one of its proposed voting changes; rather, it seeks a declaration that Section 5 and Section 4(b) are facially unconstitutional, as well as a permanent injunction prohibiting the Attorney General from enforcing these provisions.

See

Compl. ¶¶ 1, 44(a)-

*444

(b). In Count I, Shelby County alleges that in reauthorizing Section 5 “for another twenty-five years in 2006, Congress lacked the evidence of intentional discrimination that warranted the enactment of the VRA in 1965 and its extensions in 1970, 1975, and 1982.”

Id.

¶ 38(c). Hence, Shelby County argues, because there is neither “ ‘congruence and proportionality’ ... nor even a ‘rational relationship’ between the evidence compiled in support of the latest extension of Section 5 and the burdens imposed by that provision ... Section 5 ... exceeds Congress’s authority under the Fourteenth and Fifteenth Amendments,”

id.

¶ 38(d) (internal citations omitted), “and, therefore, violates the Tenth Amendment and Article IV of the Constitution,”

id.

¶ 37. In Count II, Shelby County similarly challenges the constitutionality of the 2006 reauthorization of Section 4(b)’s coverage formula, arguing that “Congress’s reliance ... on voting practices, voter registration data, and presidential election data from 1964, 1968, and 1972 as the trigger for the preclearance obligation of Section 5 is not an ‘appropriate’ means of enforcing the Fifteenth Amendment.”

Id.

¶ 42(a). Because “Section 4(b)’s coverage formula is not ‘sufficiently related to the problem that it targets,’ ” Shelby County maintains that Section 4(b), like Section 5, exceeds Congress’s Fourteenth and Fifteenth Amendment enforcement authority, and violates the principle of equal sovereignty embodied in the Tenth Amendment and Article IV.

Id.

¶ 43(c).

Shortly after filing its complaint, Shelby County filed a motion for summary judgment. Several civil rights groups and Shelby County residents responded by filing motions seeking to intervene as defendants, which the Court granted.

See

8/25/10 Order [Docket Entry 29]. Defendant and defendant-intervenors then asked the Court to deny Shelby County’s summary judgment motion as premature, or, in the alternative, to grant limited discovery pursuant to Fed.R.Civ.P. 56(f). Denying the request, this Court found that there was no need for discovery on any of the three issues upon which discovery was sought. With respect to the first issue— Shelby County’s standing to sue — the Court explained that no discovery was warranted since defendant “was unable to articulate any reason why a covered jurisdiction subject to Section 5’s preclearance requirement — such as Shelby County— would lack standing to bring this type of action.”

Shelby Cnty. v. Holder,

270 F.R.D. 16, 18 (D.D.C.2010). The Court next rejected defendant’s contention that discovery was needed to determine whether Shelby County was, in fact, eligible for bailout, since Shelby County did not seek bailout.

Id.

at 19 . Finally, the Court held that there was no need for discovery on Shelby County’s constitutional challenge because it was purely facial — not “as applied” — and it therefore must “rise or fall on the record that Congress created when it extended [the Voting Rights Act’s temporary provisions] in 2006.”

Id.

at 21 . Accordingly, the Court set a schedule for the filing of dispositive motions, which generated over 1,000 pages of briefs and exhibits and culminated in a lengthy motions hearing on February 2, 2011.

* * *

# *

This Court does not write on a clean slate in assessing plaintiffs facial constitutional challenge to the 2006 reauthorization of Section 5 and Section 4(b). To date, one Supreme Court Justice has declared that he would strike down Section 5 as an unconstitutional exercise of Congress’s Fifteenth Amendment enforcement power,

see Nw. Austin II,

129 S.Ct. at 2517-27 (Thomas, J., concurring in judgment in part, dissenting in part), while several other Justices have voiced concerns about the continued vitality of

*445

the Act’s coverage formula,

see, e.g., Nw. Austin II

Oral Arg. Tr. at 36, 2009 WL 1146055 (Apr. 29, 2009) (Alito, J., asking, “[wjouldn’t you agree that there is [sic] some oddities in this coverage formula”);

id.

at 22 (Kennedy, J., inquiring whether there is “anything in the record” addressing whether “these States that are now covered ... are markedly different from the noncovered jurisdictions”), and about the apparent never-ending nature of the preclearance obligation, which was originally intended to last only through 1970, but which is now scheduled to last through 2032,

id.

at 32 (Roberts, C.J., stating with respect to Section 5, “at some point it begins to look like the idea is that this is going to go on forever”). At the same time, a three-judge panel of this Court, after undertaking an exhaustive review of the legislative record, concluded that there was sufficient evidence of modern-day, intentional discrimination in voting to justify Congress’s 2006 reauthorization of the preclearance obligation on covered jurisdictions for another 25 years.

See Nw. Austin I,

573 F.Supp.2d at 221-83 . Keeping all these views in mind, the Court will undertake its own assessment of the legislative record in order to determine whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.

DISCUSSION

I. Threshold Issues

Three threshold issues are presented by this suit: (1) plaintiffs Article III standing; (2) plaintiffs eligibility for bailout; and (3) the facial rather than as-applied nature of plaintiffs claims. These three issues were, to some extent, already addressed in the prior Memorandum Opinion in this case.

See Shelby Cnty.,

270 F.R.D. at 18-21 . Nevertheless, given the “ ‘well-established principle ... that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case,’ ”

Nw. Austin II,

129 S.Ct. at 2513 (quoting

Escambia Cnty. v. McMillan,

466 U.S. 48, 51 , 104 S.Ct. 1577 , 80 L.Ed.2d 36 (1984)), the Court will briefly revisit each of these issues to explain why none provides a valid basis for avoiding the merits of the facial constitutional challenge raised here.

Standing

To establish the “irreducible constitutional minimum of standing,” a plaintiff must allege (1) an “injury in fact” that is “(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical”; (2) “a causal connection between the injury and the conduct complained of’; and (3) a likelihood “that the injury will be redressed by a favorable decision.”

Lujan v. Defenders of Wildlife,

504 U.S. 555, 560-61 , 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). As a jurisdiction covered by Section 4(b), Shelby County maintains that it must expend “significant taxpayer dollars, time, and energy to meet its obligations under Section 5 of the VRA.” Ellis Decl. ¶ 7. Shelby County’s expenditure of time and money to ensure compliance with Section 5 constitutes a “concrete and particularized” injury that is caused by the continued operation of the statute, and that would be redressed by a decision declaring Section 5 facially unconstitutional and permanently enjoining its enforcement.

The mere fact that Shelby County does not challenge any specific objection to one of its proposed electoral changes does not serve to render its claims “conjectural or hypothetical” for purposes of Article III.

See LaRoque v. Holder,

650 F.3d 777, 789-91 (D.C.Cir.2011) (noting that a plaintiff need only demonstrate a “ ‘substantial probability’ of imminent injury” to estab

*446

lish Article III standing to bring a facial constitutional challenge to Section 5). Because Shelby County is a jurisdiction subject to Section 5, it will be forced to expend resources obtaining preclearance for all of its future electoral changes, absent a decision from this Court granting its requested relief.

Shelby County therefore has alleged an injury that is both “credible and immediate, and not merely abstract or speculative.”

See Navegar, Inc. v. United States,

103 F.3d 994, 998 (D.C.Cir.1997);

see also

Pl.’s Reply in Supp. of Pl.’s Mot. for Summ. J. (“Pl.’s Reply”) at 2 (explaining that “[t]he Supreme Court has made clear that all enforcement legislation is subject to congruence and proportionality review, and it has specifically relied on the voting rights cases in adopting and applying this test”).

The parties in

Nw. Austin

engaged in the same dispute regarding the proper standard of review to apply in assessing the constitutionality of Section 5.

See Nw. Austin II,

129 S.Ct. at 2512 . Although the Supreme Court ultimately declined to resolve the issue,

see

id.;

but see id.

at 2524-25 (Thomas, J., concurring in judgment in part, dissenting in part) (suggesting that

Boeme

provides the framework for reviewing the constitutionality of Section 5), the three-judge court below held that

“Katzenbach’s

rationality standard governs this case,”

Nw. Austin I,

573 F.Supp.2d at 241 .

That court described

Katzenbach’s

“rationality standard” and

Boeme’s

“congruence and proportionality test” as “two distinct standards for evaluating the constitutionality of laws enforcing the Civil War Amendments.” 573 F.Supp.2d at 235-36 . After summarizing what it characterized as “these two lines of cases,” the court said that “the time has come to choose between them.” 573 F.Supp.2d at 241 . The court ultimately “chose”

Katzenbach

for two reasons (although it went on to find that Section 5 passed muster under both

Katzenbach

and the congruence and proportionality framework outlined in Boerne). First, the court noted that

City of Rome,

which had “applied

Katzenbach’s

rationality test,” constituted controlling precedent directly on point.

Id.

Although

City of Rome

pre-dates

Boerne,

the

Nw. Austin I

panel reasoned that because neither

Boerne

nor any case since had questioned the standard of review utilized in

City of Rome,

that standard had not been overruled.

See id.

at 242. Hence, the court concluded that the type of review enunciated in

Katzenbach

and employed in

City of Rome

still governed the plaintiffs challenge to the 2006 extension of Section 5, even assuming that

Boerne

had “cast some doubt” on

Katzenbach

and

City of Rome. Id.

at 246. Second, the court pointed to the fact that

Boeme

involved a challenge to Congress’s enforcement authority under § 5 of the Fourteenth Amendment,

id.

at 517, 117 S.Ct. 2157 , whereas

Katzenbach

and

City of Rome

involved challenges to Section 5, which, “at its core,” constitutes legislation enacted under § 2 of the Fifteenth Amendment,

id.

at 243^4. “Even if the

City of Boeme

cases changed the test for

all

statutes enacted pursuant to

*449

the Fourteenth Amendment,” the court explained, “those cases leave the Fifteenth Amendment standard untouched.”

Id.

at 243.

This Court respectfully disagrees. A close analysis of the Voting Rights Act cases,

Boerne,

and cases following

Boerne

reveals that the Supreme Court has not left the standard of review for Fifteenth Amendment enforcement legislation “untouched”; moreover, it has not established a “distinct standard” for evaluating Fourteenth Amendment enforcement legislation different from that traditionally employed in the Fifteenth Amendment context. Rather,

Boeme

merely explicated and refined the one standard of review that has always been employed to assess legislation enacted pursuant to

both

the Fourteenth and Fifteenth Amendments.

See

Appellant’s Br.,

Nw. Austin II,

2009 WL 453246 , at *33 (Feb. 19, 2009) (explaining that

“Boerne

and the cases following it do no more than elaborate and clarify the standard for reviewing Congress’s efforts to enforce the Reconstruction Amendments”). The question is not, then, whether this Court, as “a district court bound by Supreme Court precedent,” should follow

“Katzenbach

and

City of Rome

even if ... the

City of Boerne

cases cast some doubt on those cases,”

Nw. Austin I,

573 F.Supp.2d at 246 . If this Court viewed

Boeme

and its enunciation of the congruence and proportionality test as merely “casting doubt” on

Katzenbach

and

City of Rome,

it would, indeed, still be obligated to follow those earlier cases, and leave to the Supreme Court “the prerogative of overruling its own decisions,”

Rodriguez de Qidjas v. Shearson/Am. Express, Inc.,

490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989). Rather, the question is whether, given the

elaboration

of the

Katzenbach

standard that was undertaken by the Supreme Court in

Boeme,

this Court should nonetheless adhere to the standard as first articulated in

Katzenbach ,

simply because the

Boeme

elaboration occurred in the Fourteenth Amendment context, not the Fifteenth. Such a course would, in this Court’s view, constitute a misunderstanding of

Boerne.

This Court will therefore review the Supreme Court’s evolving descriptions of the nature of Congress’s enforcement powers under the Reconstruction Amendments, as explicated in

Katzenbach, Boerne

and later cases, to show that

Boeme’s

congruence and proportionality framework reflects a refined version of the same method of analysis utilized in

Katzenbach ,

and hence provides the appropriate standard of review to assess Shelby County’s facial constitutional challenge to Section 5 and Section 4(b).

The “Virtually Identical” Enforcement Clauses of the Fourteenth and Fifteenth Amendments

Section 5 of the Fourteenth Amendment provides that “Congress shall have the power to enforce, by appropriate legislation, the provisions of this article,” U.S. Const. amend. XIV, § 5, while § 2 of the Fifteenth Amendment states that “Congress shall have power to enforce this article by appropriate legislation,” U.S. Const. amend. XV, § 2.

Given the nearly identical language and similar origin of these two Reconstruction Amendments, there would seem to be “no reason to treat the enforcement provision of the Fifteenth Amendment differently than the identical provision of the Fourteenth Amendment, and the Supreme Court has not held to the

*450

contrary.”

Mixon v. State of Ohio,

193 F.3d 389, 399 (6th Cir.1999);

see also

Evan Caminker,

“Appropriate

”

Means-Ends Constraints on Section 5 Powers,

53 Stan. L.Rev. 1127, 1191 (2001) (stating that

Boeme

“strongly suggests that Section 2 measures designed to enforce the Fifteenth Amendment are subject to stringent congruence and proportionality analysis as well”); Mark A. Posner,

Time is Still On its Side: Why Congressional Reauthorization of Section 5 of the Voting Rights Act Represents a Congruent and Proportional Response to Our Nation’s History of Discrimination in Voting,

10 N.Y.U. J. Legis. & Pub. Pol’y 51, 89 (2006) (noting that

Boeme

“strongly intimated that the same analysis applies when assessing Congress’s authority under the two amendments to enact prophylactic legislation”).

Boeme’s

characterization of

Katzenbach

as a case that “revolve[d] around the question whether

§ 5 legislation

can be considered remedial,”

see Boerne,

521 U.S. at 525 , 117 S.Ct. 2157 (emphasis added), also cannot be reconciled with the contention that different modes of analysis govern judicial review of § 5 and § 2 enforcement legislation. Again, this is because the Court in

Katzenbach

upheld the challenged provisions of the Voting Rights Act not as a valid exercise of Congress’s power under § 5 of the Fourteenth Amendment, but as “a valid means of carrying out the commands of the Fifteenth Amendment.”

Katzenbach,

383 U.S. at 337 , 86 S.Ct. 803 . Indeed, the Supreme Court in

Katzenbach

never even mentioned § 5 of the Fourteenth Amendment. To the extent that

Katzenbach

“revolve[d] around” the issue of what constitutes appropriate § 5 legislation, then, it could only be because the test for determining the validity of § 5 legislation is the same as that for determining the validity of § 2 legislation.

It is also significant that the Supreme Court in

Boerne

did not purport to overrule

Katzenbach v. Morgan,

or the half-century of precedent that has treated the nature of the enforcement power conferred by the Fourteenth and Fifteenth Amendments as coextensive.

See Katzenbach v. Morgan,

384 U.S. at 651 , 86 S.Ct. 1717

*459

(explaining that

McCulloch v. Maryland

and

Ex Parte Virginia

provide the definition of what constitutes “appropriate” enforcement legislation in both the Fifteenth and Fourteenth Amendment contexts). The Supreme Court in

Boeme

began its analysis by quoting

Katzenbach v. Morgan’s

acknowledgment that “§ 5 is ‘a positive grant of legislative power.’ ”

Boerne,

521 U.S. at 517 , 117 S.Ct. 2157 (quoting

Katzenbach v. Morgan,

384 U.S. at 651 , 86 S.Ct. 1717 ). And it then recited the traditional articulation of “the scope of Congress’ § 5 power” as laid out in

Ex Parte Virginia,

thereby suggesting that the congruence and proportionality framework was a mere elaboration of those “broad terms.”

See Boeme,

521 U.S. at 517-18 , 117 S.Ct. 2157 .

Under

Katzenbach

and

City of Rome, Ex Parte Virginia’s

definition of “appropriate” legislation under the Thirteenth and Fourteenth Amendments also governs what constitutes “appropriate” legislation under the Fifteenth Amendment.

See Katzenbach,

383 U.S. at 326 , 86 S.Ct. 803 ;

City of Rome,

446 U.S. at 174-75 , 100 S.Ct. 1548 . Hence, the Supreme Court’s elaboration of

Ex Parte Virginia

Boeme

would seem to apply just the same in the Fifteenth Amendment context, at least in the absence of any indication that

Katzenbach

and

City of Rome

were incorrect to rely on a § 5 case in delineating the scope of Congress’s § 2 power. But the Supreme Court in

Boerne

gave no such indication. In fact, it suggested just the opposite, by itself relying almost exclusively on § 2 cases in delineating the scope of Congress’s § 5 power.

See

Karlan, 39 Wm. & Mary L. Rev. at 725 n. 5 (noting that “most of the cases Justice Kennedy cited relied on Congress’s use of its enforcement power under Section 2 of the Fifteenth Amendment”).

The Supreme Court’s failure in

Boeme

to announce any departure from

Katzenbach

and

City of Rome

can be explained by the fact that the congruence and proportionality test does not constitute a novel alternative to the standard of review employed in those earlier cases; rather, it reflects a more detailed articulation of the same standard that the Court has always applied to assess Congress’s exercise of its Fifteenth Amendment enforcement power. In

Katzenbach,

the Court began with the first step of the

Boerne

framework, determining “what injury Congress sought to prevent or remedy” when it enacted the challenged provisions of the Voting Rights Act.

Fla. Prepaid,

527 U.S. at 652 , 119 S.Ct. 2199 ;

see Katzenbach,

383 U.S. at 308 , 86 S.Ct. 803 (explaining that the Act was designed “to banish the blight of racial discrimination in voting”). The Court then proceeded to the second step of

Boerne ,

looking to whether Congress had “identified a history and pattern of unconstitutional [conduct] by the States,”

Garrett,

531 U.S. at 368 , 121 S.Ct. 955 . In so doing, the Supreme Court made clear that the “constitutional propriety” of the Act “must be judged with reference to the historical experience it reflects,”

Katzenbach,

383 U.S. at 308 , 86 S.Ct. 803 , and it pointed to historical evidence of state-sponsored voting discrimination in the legislative record to justify the need for the Act,

id.

at 310 , 86 S.Ct. 803 (describing states’ use of tests and devices that were “specifically designed to prevent Negroes from voting”). Although the Court in

Katzenbach

did not use the words “congruent” and “proportional” when assessing the challenged provisions of the Act, it did closely analyze whether Section 5 and Section 4(b) constituted “an appropriate response” to the “history and pattern” of unconstitutional voting discrimination that Congress had identified,

see Lane,

541 U.S. at 530 , 124 S.Ct. 1978 . So, too, did the Court in

City of Rome

engage in a Boeme-like analysis, upholding the 1975

*460

reauthorization of Section 5 only after describing the evidence of voting discrimination upon which Congress had relied in reauthorizing the Act’s temporary provisions.

See City of Rome,

446 U.S. at 182 , 100 S.Ct. 1548 (finding that “at least another 7 years of statutory remedies” was “necessary to counter the perpetuation of 95 years of pervasive voting discrimination”).

To the extent that the analysis undertaken in

Katzenbach

and

City of Rome

was somewhat less rigorous than that applied in cases since

Boeme ,

that may only be a reflection of the fact that where a remedial statute is designed to protect a fundamental right or to prevent discrimination based on a suspect classification, it is “easier for Congress to show a pattern of state constitutional violations,” as required at the second step of

Boerne. See Hibbs,

538 U.S. at 736 , 123 S.Ct. 1972 ;

Lane,

541 U.S. at 529 , 124 S.Ct. 1978 . Because Section 5 seeks to protect the right to vote — a “fundamental political right,”

Yick Wo v. Hopkins,

118 U.S. 356, 370 , 6 S.Ct. 1064 , 30 L.Ed. 220 (1886) — and to prohibit discrimination based on race — an “immediately suspect” classification,

see Johnson v. California,

543 U.S. 499, 509 , 125 S.Ct. 1141 , 160 L.Ed.2d 949 (2005) — the showing needed to substantiate Section 5 was easier to make in

Katzenbach

and

City of Rome

than in

Kimel

Garrett ,

which involved classifications subject to less stringent levels of constitutional scrutiny.

See Nw. Austin I,

573 F.Supp.2d at 241 .

The Attorney General relies heavily on

Lopez,

a Section 5 case decided shortly after

Boeme ,

in arguing that congruence and proportionality review does not govern Shelby County’s challenge to the constitutionality of Section 5.

See

Def.’s Reply in Supp. of Def.’s Mot. for Summ. J. [Docket Entry 67] at 6. But such reliance is unwarranted. In

Lopez,

the Supreme Court examined an as-applied challenge to Section 5 brought by Monterey County, California, a political subdivision covered by Section 4(b).

See Lopez,

525 U.S. at 282 , 119 S.Ct. 693 . Monterey County alleged that Section 5 did not apply to its implementation of a voting change required by state law, since enactment of the change was non-discretionary and California — the source of the change-was not itself a covered jurisdiction subject to Section 5.

Id.

Rejecting this argument, the Court held that “the Act’s preclearance requirements apply to measures mandated by a noncovered State to the extent that these measures will effect a voting change in a covered county.”

Id.

at 269, 119 S.Ct. 693 . The Court then briefly addressed the plaintiffs contention that Section 5 was unconstitutional to the extent that it was interpreted to apply “to voting measures enacted by States that have not been designated as historical wrongdoers in the voting rights sphere.”

Id.

at 283, 119 S.Ct. 693 . Citing

Katzenbach

and

City of Rome,

the Court explained that it had previously upheld Section 5 as a valid exercise of Congress’s Fifteenth Amendment enforcement authority — despite its “intrusion into areas traditionally reserved to the States” — and that no different result was required just because Section 5 “is held to cover acts initiated by non-covered States.”

Id.

The Court then referenced

Boerne

as having held that Congress may, under the Fourteenth Amendment, “ ‘intrude[ ] into legislative spheres of autonomy previously reserved to the States.’ ”

Id.

(quoting

Boeme,

521 U.S. at 518 , 117 S.Ct. 2157 ). Nowhere in

Lopez

did the Supreme Court mention either “congruence and proportionality” or “rational basis” review, or purport to apply either standard to Section 5. To the extent that

Lopez

cuts in either direction, then, the Court regards it as reaffirming that

Katzenbach, City of Rome,

and

Boerne

are consistent in their evolving descriptions of Congress’s en

*461

foreement power under the Fourteenth and Fifteenth Amendments.

Because the Court finds no basis upon which to differentiate between the standards of review to be applied in the Fourteenth and Fifteenth Amendment enforcement contexts, it need not decide whether the 2006 reauthorization of Section 5 and Section 4(b) constituted an exercise of Congress’s Fourteenth or Fifteenth Amendment enforcement authority, or a kind of hybrid legislation enacted pursuant to both amendments. Shelby County correctly points out that to date “[t]he Fifteenth Amendment has been the exclusive basis for upholding Section 5.”

See

Pl.’s Reply at 47, 49 n. 15;

see also

S.Rep. No. 94-295 (1975), 1975 U.S.C.C.A.N. 774, 814-15 (explaining that “[t]he Fourteenth Amendment is added as a constitutional basis for these voting rights amendments” in order to “doubly insure the constitutional basis for the Act,” even though the Department of Justice has taken the position that “ ‘language minorities’ are members of a ‘race or color’ group protected under the Fifteenth Amendment”); 42 U.S.C. § 1973aa-1a (finding that, because “citizens of language minorities have been effectively excluded from participation in the electoral process,” it is necessary to prescribe remedial measures “to enforce the guarantees of the fourteenth and fifteenth amendments”).

Some have argued that this reliance on the Fourteenth Amendment was unnecessary, and that Congress “could have relied solely on its Fifteenth Amendment authority” in extending the Act’s protections to language minorities, since the Supreme Court has “strongly suggested” that language minorities “qualify as racial groups” within the meaning of the Fifteenth Amendment.

See, e.g., Nw. Austin I,

573 F.Supp.2d at 243-44 . Regardless, there are additional reasons to question whether Section 5 can still be viewed as pure Fifteenth Amendment enforcement legislation. Section 5 is designed to combat not only outright denials of the right to vote, but also vote dilution — “defined as a regime that denies to minority voters the same opportunity to participate in the political process and to elect representatives of their choice that majority voters enjoy.”

Bossier II,

528 U.S. at 359, 120 S.Ct. 866 (Souter, J., concurring in part, dissenting in part). Although there is an argument that measures that dilute minorities’ voting strength violate the Fifteenth Amendment’s guarantee against “abridgment” of the right to vote,

see id.,

the Supreme Court thus far has “dealt with vote dilution only under the Fourteenth Amendment,”

id.,

and has “never held that vote dilution violates the Fifteenth Amendment,”

Bossier II,

528 U.S. at 334 n. 3, 120 S.Ct. 866 . To the extent that the Attorney General seeks to rely on evidence of vote dilution to justify the 2006 reauthorization of Section 5, then, it might be necessary to find that Section 5 constitutes valid Fourteenth Amendment — as opposed to Fifteenth Amendment — enforcement legislation. But again, this issue need not be decided, in light of the Court’s conclusion that

Boerne

provides the proper mode of analysis to assess challenges to Congress’s enforcement power under both § 5 of the

*462

Fourteenth Amendment and § 2 of the Fifteenth Amendment. Hence, irrespective of whether Section 5 is considered § 2 enforcement legislation, § 5 enforcement legislation,

or a kind of hybrid legislation enacted pursuant to both amendments, it can only be upheld if it is “congruent and proportional” to the problem of unconstitutional racial discrimination in voting.

III. Application of

Boerne

to the 2006 Extension of Section 5

The Scope of the Constitutional Right At Issue

The first step in determining whether the 2006 extension of Section 5 passes muster under

Boerne

is “to identify with some precision the scope of the constitutional right at issue.”

See Garrett,

531 U.S. at 365 , 121 S.Ct. 955 ;

see also

Nathaniel Persily,

The Promise and Pitfalls of the New Vot

*463

ing Rights Act,

117 Yale L.J. 174 , 176 (2007) (explaining that Congress “acted at the apex of its power to enforce the guarantees of the post-Civil War Amendments” when it enacted the Voting Rights Act). Just as in

Hibbs

and

Lane ,

then, it is “easier for Congress to show a pattern of state constitutional violations” justifying the need for Section 5 than when Congress seeks to enforce rights subject to lesser levels of constitutional review, since “racial classifications and restrictions on the right to vote-like gender discrimination

(Hibbs)

and access to the courts

(Lane)

— are ‘presumptively invalid.’”

Nw. Austin I,

573 F.Supp.2d at 270 (quoting

Hibbs,

538 U.S. at 736 , 123 S.Ct. 1972 ).

Evidence of Unconstitutional Voting Discrimination in the Legislative Record

Having determined “the metes and bounds of the constitutional right[s] in question,” the core issue is whether Congress succeeded in identifying “a history and pattern” of unconstitutional, state-sponsored voting discrimination to justify the 2006 reauthorization of Section 5.

See Garrett,

531 U.S. at 368 , 121 S.Ct. 955 . Shelby County argues that the evidence of so-called “second generation barriers” to voting upon which Congress relied in 2006 when it re-authorized Section 5 — -including evidence of racially polarized voting, preclearance statistics, the continued filing of Section 2 cases, and the dispatch of federal observers — cannot justify the extension of Section 5, since “none of this evidence comes close to proving the existence of pervasive, intentional discrimination.”

See

Pl.’s Mot. at 32. Instead, Shelby County contends, there are only two types of evidence that can be used to establish the constitutional necessity of Section 5: “(1)

direct

evidence of widespread, intentional voting discrimination and gamesmanship; and (2) registration data, turnout statistics, and the election of minorities to public office.” Pl.’s Reply at 37 (emphasis added). This argument is flawed in several respects.

To begin with, “[i]n identifying past evils, Congress obviously may avail itself of information from any probative source.”

Katzenbach,

383 U.S. at 330 , 86 S.Ct. 803 . To be sure, there must be an established “pattern of constitutional violations” in order to justify remedial, prophylactic legislation like Section 5,

see Fla. Prepaid,

527 U.S. at 640 , 119 S.Ct. 2199 , and discriminatory intent is a necessary element of a Fourteenth or Fifteenth Amendment violation,

see, e.g., City of Mobile,

446 U.S. at 62, 67 , 100 S.Ct. 1490 . Shelby County is therefore correct that some evidence of purposeful state-sponsored voting discrimination is needed to sustain Section 5. But Shelby County is incorrect to suggest that such evidence must be “direct.”

See

Pl.’s Reply at 37. To the contrary, the Supreme Court has repeatedly recognized that unconstitutional “discriminatory intent need

not

be proved by direct evidence.”

See Rogers v. Lodge,

458 U.S. 613, 618 , 102 S.Ct. 3272 , 73 L.Ed.2d 1012 (1982) (emphasis added) (citing

Arlington Heights v. Metro. Housing Dev. Corp.,

429 U.S. 252, 265 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977);

Washington v. Davis,

426 U.S. 229, 242 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976)). Rather, “an invidious discriminatory purpose may often be inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily on one race than another.”

Washington v. Davis,

426 U.S. at 242 , 96 S.Ct. 2040 . Moreover, as the Supreme Court in

Katzenbach

made clear, Congress is not bound by the standards of proof, applicable in judicial proceedings “when it prescribes civil remedies against other organs of government under s[ection] 2 of the Fifteenth Amendment.”

See Katzenbach,

383 U.S. at 330 , 86 S.Ct. 803 . Because the discriminatory effects of a challenged practice can

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constitute “powerful evidence of the intent with which it was adopted or maintained,”

Continuing Need

186 (prepared statement of Pamela S. Karlan), this Court would be remiss if it were to limit its examination of the legislative record to judicially proven instances of discriminatory intent.

Shelby County’s suggestion that circumstantial evidence of voting discrimination cannot justify the 2006 reauthorization of Section 5 is also belied by

City of Rome.

There, in upholding the 1975 extension of Section 5, the Supreme Court pointed to no recent “direct” evidence of intentional voting discrimination by covered jurisdictions. Instead, it found that Section 5’s reauthorization was justified based on the country’s history of intentional discrimination in voting, together with more recent circumstantial evidence of continued voting discrimination, which included evidence of racial disparities in voter registration and turnout, the number of minority elected officials, and the nature and number of Section 5 objections.

See City of Rome,

446 U.S. at 181 , 100 S.Ct. 1548 . Clearly, then, such evidence is — at the very least— relevant in assessing whether Section 5 remains “justified by current needs.”

Nw. Austin II,

129 S.Ct. at 2512 .

Not only is Shelby County incorrect to suggest that Section 5 can only be sustained on the basis of recent “direct” evidence of intentional voting discrimination, but it is also wrong to suggest that Congress lacked such evidence when it reauthorized Section 5 in 2006. Having examined the 2006 legislative record, this Court — like the three-judge court in

Nw. Austin

I — has found ample evidence of purposeful voting discrimination by covered jurisdictions. The record describes one instance in which Mississippi state legislators opposed a redistricting plan that would have given African-Americans an increased opportunity to elect representatives of their choice, referring to the plan “on the House floor as the ‘black plan’ and privately as ‘the n-plan.’” S.Rep. No. 109-295, at 14. On another occasion, Georgia’s Chair of its House Reapportionment Committee told his colleagues in the Georgia legislature that he was uncertain as to the outcome of the state’s redistricting process, “because the Justice Department is trying to make us draw nigger districts and I don’t want to draw nigger districts.”

See Busbee v. Smith,

549 F.Supp. 494, 501 (D.D.C.1982);

see also

H.R.Rep. No. 109-478, at 67;

Voting Rights Act: The Judicial Evolution of the Retrogression Standard, Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary,

109th Cong. 54 (Nov. 9, 2005) (prepared statement of Laughlin McDonald). In Shelby County’s home state of Alabama, there were reports of voting officials “closing the doors on African-American voters before the ... voting hours were over,”

see

Evidence of Continued Need

182 (Nat’l Comm’n Report), and of white voting officials using racial epithets to describe African-American voters in the presence of federal observers,

see

S.Rep. No. 109-295, at 130, 132. In both Texas and South Carolina, witnesses described various kinds of intimidation and harassment being directed at blacks at the polls,

see

Evidence of Continued Need

138 (Nat’l Comm’n Report); S.Rep. No. 109-295, at 307, 311, while one witness from Virginia testified that “hate literature” had been distributed in his neighborhood, threatening to “lynch” African-Americans who voted in particular ways,

see

S.Rep. No. 109-295, at 355. All these examples of intentional voting discrimination took place not in the 1950s or 1960s, but in the 1980s, 1990s, and 2000s.

Yet Shelby County argues that even this kind of evidence carries little weight, as it is merely “anecdotal” and such “anecdotal examples of intentional discrimination” cannot justify the continued operation of

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Section 5.

See

Pl.’s Reply 39. Again, this Court disagrees. As Professor Theodore Arrington explained in his 2006 testimony before the Senate Judiciary Committee, “[t]he examination of specific cases cannot be dismissed as mere anecdotes,” because “anecdote is the singular of data.”

Continuing Need

26 (responses of Theodore S. Arrington to questions submitted by Senators Cornyn, Coburn, Leahy, Kennedy, and Kohl) (“Arrington Responses”);

see also Understanding the Benefits and Costs of Section 5 Pre-Clearance, Hearing Before the S. Comm, on the Judiciary,

109th Cong. 19 (May 17, 2006)

(“Benefits and Costs

”) (testimony of Drew S. Days III) (explaining that to characterize “examples that are quite concrete ... violations of the Voting Rights Act ... as anecdotes, I think, is really to miss the point” since these “so-called anecdotes go right to the very heart of the matter”). Taken together, the large collection of anecdotes in the legislative record constitutes a valid form of data that must be assessed and weighed — not dismissed as “isolated examples” of voting discrimination,

see

Pl.’s Reply at 39.

Anecdotes are by no means the only form of data in the legislative record that shows the continued existence of unconstitutional voting discrimination by covered jurisdictions. One study relied on by Congress found that 89% of the 209 objections to redistricting plans in the 1990s were based, at least in part, on discriminatory intent.

See Preclearance Standards

181 (Peyton McCrary et al., “The End of Preclearance As We Knew It: How the Supreme Court Transformed Section 5 of the Voting Rights Act”) (hereinafter, “McCrary Study”). In other words, the Justice Department determined that discriminatory purpose was a motivating factor in no less than 186 of the redistricting plans proposed by covered jurisdictions during the 1990s.

Id.

at 177, 181. Another study in the legislative record identified 24 lawsuits involving more than one hundred instances of intentionally discriminatory conduct in voting since 1982.

See Impact and Effectiveness

986 (Katz Study). Such evidence can hardly be dismissed as “anecdotal.”

Ultimately, an assessment of all the evidence in the legislative record confirms that Congress was, in fact, responding to what it reasonably perceived to be a continuing history and pattern of unconstitutional conduct by covered jurisdictions when it reauthorized Section 5 in 2006. Although some scholars voiced concern during the 2006 reauthorization hearings that “the Act has been so effective it will be hard to produce enough evidence of

intentional discrimination by the states

so as to justify the extraordinary preclearanee remedy for another 25 years,”

see, e.g., Introduction to Expiring Provisions

216 (prepared statement of Richard L. Hasen) (“Hasen Prepared Statement”);

id.

at 221 (prepared statement of Samuel Issacharoff) (“Issacharoff Prepared Statement”), Congress succeeded in doing just that. Despite the marked improvements in minority political participation over the last several decades — due, in large part, to the effectiveness of the Voting Rights Act — the 2006 legislative record reveals that, just as in 1975, “ ‘a bleaker side of the picture yet exists.’ ”

City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 (internal citations omitted).

This Court will begin, as did the three-judge court in

Nw. Austin I,

by examining the three types of evidence relied on by the Supreme Court in

City of Rome

when it upheld the 1975 reauthorization of Section 5 — evidence of (1) racial disparities in voter registration (and turnout); (2) the number of minority elected officials; and (3) the nature and number of Section 5 objections. The Court will then assess the other types of evidence cited by Congress

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when it reauthorized Section 5 in 2006, including evidence of (4) more information requests; (5) Section 5 preclearance suits; (6) Section 5 enforcement actions; (7) Section 2 litigation; (8) the dispatch of federal observers; (9) racially polarized voting; and (10) Section 5’s deterrent effect. In the course of its review, the Court will call particular attention to the evidence of intentional, state-sponsored voting discrimination contained in the legislative record, keeping in mind that there must be “a history and pattern of unconstitutional [conduct] by the States” to justify a remedial, prophylactic measure like Section 5.

See Garrett,

531 U.S. at 368 , 121 S.Ct. 955 .

Minority Voter Registration and Turnout

Shelby County points to the “dramatic rise in African-American voter registration and turnout rates” since 1965 as evidence that Section 5’s protections are no longer constitutionally justified.

See

Pl.’s Reply at 44;

see also

Pl.’s Mot. at 25-26. It is true that there has been a substantial increase in black voter registration and turnout in the South since the Voting Rights Act was first enacted.

See

Evidence of Continued Need

156-57 (Nat’l Comm’n Report). In 1964, the year before the Act’s passage, the black voter registration rate was only 32% in Louisiana, 23% in Alabama, and a meager 6.7% in Mississippi.

Id.

In each of these states, the white voter registration rate was at least 50 percentage points higher than the corresponding rate for blacks.

See Katzenbach,

383 U.S. at 313 , 86 S.Ct. 803 . Only ten years later, however, black voter registration rates in the South had already increased substantially — no doubt as a result of the Act’s prohibition of those tests and devices that had previously been employed to deny blacks access to the ballot.

See

S.Rep. No. 94-295, at 779. In Mississippi, for example, the percentage of blacks who were registered to vote multiplied almost tenfold in the seven years following the Act’s passage, jumping from 6.7% in 1964 to 63.2% in 1971-1972.

Id.

But in spite of these significant improvements, the Supreme Court in

City of Rome

remained troubled by the “[significant disparity” that “persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions.” 446 U.S. at 180, 100 S.Ct. 1548 . In 1975, black voter registration rates in Alabama, Louisiana, and North Carolina continued to lag behind those of whites by as much as 23.6, 16, and 17.8 percentage points, respectively.

See

S.Rep. No. 94-295, at 779. Hence, while “the

City of Rome

Court acknowledged the dramatic progress the South had made since 1965,” it still “found the evidence of continued discrimination sufficient to justify the 1975 extension” of the Act’s temporary provisions.

See Nw. Austin I,

573 F.Supp.2d at 247 . After

City of Rome,

then, the question is not whether there has been substantial improvement in minority voter registration and turnout since the Act’s passage in 1965 (or even since the Act’s reauthorization in 1975 or 1982), but whether, in spite of this substantial improvement, there remained significant racial disparities in voter registration and turnout when Congress reauthorized Section 5 in 2006.

See id.

Just as in 1975, Congress in 2006 did find that significant disparities persisted between minority and non-minority voter registration and turnout in several jurisdictions subject to preclearance under Section 5. In Virginia, for example, Congress reported that the black voter registration rate in 2004 was almost 11 percentage points behind the corresponding rate for whites, while the racial disparity in voter turnout was even greater, with only 49% of blacks turning out to vote, as compared to 63% of whites.

See

H.R.Rep. No. 109-478, at 25. Similarly, in Texas, Congress found

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a 20 percentage point gap in voter registration between whites and Hispanics,

id.

at 29, with an even greater gap in voter turnout,

see

S.Rep. No. 109-295, at 11. Nationwide, the 2004 voter registration and turnout rates for Hispanics were approximately half the corresponding rates for whites, with only 34.3% of Hispanics registering and 28% turning out to vote, as compared to 67.9% and 60.3% for whites.

Id.

Although the difference between black and white voter registration and turnout rates was less significant, blacks nationwide still registered and turned out to vote at rates below those of whites in 2004, with only 64.3% of blacks registering, and 56.1% of blacks turning out to vote.

Id.

Moreover, as the three-judge court in

Nw. Austin I

pointed out, these statistics understate the true disparities between minority and non-minority voter registration and turnout. That is because in computing the voter registration and turnout rates for whites, Congress included Hispanics.

See Nw. Austin I,

573 F.Supp.2d at 248 . Given the low registration and turnout rates of Hispanic voters, the inclusion of these voters in the “white” category served to lower the overall white voter registration and turnout rates reported by Congress, thereby reducing the true disparity between black and white voter registration and turnout (as well as the disparity between Hispanic and white voter registration and turnout).

See id.; see also

Persily, 117 Yale L.J. at 197 (explaining that “once Hispanics are taken out of the white category the picture changes considerably”). For instance, Congress reported that in five of the 16 states covered in whole or in part by Section 4(b) (California, Georgia, Mississippi, North Carolina, and Texas), voter registration and turnout in 2004 was

higher

among blacks than whites.

See

S.Rep. No. 109-295, at 11. But when black voter registration and turnout rates are compared to the rates for

non-Hispanic

whites, only one of these states (Mississippi) had higher black than white voter registration and turnout in 2004.

See Nw. Austin I,

573 F.Supp.2d at 248 . In each of the other states covered in whole or in part by Section 4(b) for which comparative data was available, voter registration was lower for blacks than for non-Hispanic whites.

See

U.S. Census Bureau, Voting and Registration in the Election of November 2004 tbl. 4a., Reported Voting and Registration of the Total Voting-Age Population, by Sex, Race and Hispanic Origin, for States,

available at

http://www.census.gov/population/www/ socdemo/voting/cps2004.html (hereinafter, “2004 U.S. Census Bureau Report”) (last visited September 19, 2011);

see also

S.Rep. No. 109-295, at 11 (relying on 2004 U.S. Census Bureau Report).

In many covered states, the disparities between black and non-Hispanic white voter registration and turnout were stark: in both Arizona and Florida, for example, voter turnout rates among non-Hispanic whites were more than 20 percentage points higher than voter turnout rates among blacks, while in Louisiana and Texas, voter registration rates among non-Hispanic whites were more than five percentage points higher than voter registration rates among blacks.

See

2004 U.S. Census Bureau Report. When the data for non-Hispanic whites are used, the disparities between black and white voter registration and turnout rates in Virginia

*468

become even more pronounced than those reported by Congress. Whereas Congress found that Virginia had a 10.8 percentage point racial disparity in voter registration and a 14 percentage point racial disparity in voter turnout,

see

H.R.Rep. No. 109-478, at 25, the racial disparities become 14.2 and 16.6 percentage points, respectively, when black voter registration and turnout rates are compared to the rates for non-Hispanic whites.

See

2004 U.S. Census Report.

The 2004 disparities between Hispanic and white voter registration also become more severe when Hispanics are taken out of the “white” category. Although Congress reported a 20 percentage point gap in voter registration between Hispanics and whites in Texas in 2004,

see

H.R. Rep. 109-478, at 29, the gap increases to 32.1 percentage points when the rate for Hispanics is compared to the rate for non-Hispanic whites,

see

2004 U.S. Census Report. Even greater gaps between Hispanics and non-Hispanic whites existed in other covered jurisdictions, with Hispanics in Arizona, California and Virginia registering in 2004 at rates more than 40 percentage points lower than the corresponding rates for non-Hispanic whites.

See id.

In Georgia and North Carolina, the racial disparities in registration rates between Hispanics and non-Hispanic whites were the highest of any covered jurisdictions, with only 9.6% of Hispanics registering to vote in Georgia and 13.4% of Hispanics registering to vote in North Carolina, as compared to 68% and 73.2% of non-Hispanic whites, respectively — in other words, there was almost a 60 percentage point gap in voter registration between Hispanics and non-Hispanic whites in both Georgia and North Carolina.

See id.

As the three-judge court in

Nw. Austin I

explained, these disparities in voter registration and turnout are “comparable to the disparity the

City of Rome

Court called ‘significant.’ ” 573 F.Supp.2d at 248 (quoting

City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 ). In

City of Rome,

the Court deemed as “significant” the 16, 17.8, and 23.6 percentage point disparities in voter registration rates then-existing between blacks and whites in Louisiana, North Carolina, and Alabama.

See

S.Rep. No. 94-295, at 779;

City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 . In 2004, there were 14.2, 17.8, and 19.2 percentage point disparities between black and white voter registration rates in Virginia, Arizona, and Florida, respectively (using the data for non-Hispanic whites).

See

2004 U.S. Census Report. Moreover, there were far greater gaps between Hispanic and non-Hispanic white voter registration rates than even those held “significant” in

City of Rome,

with disparities nearing 60 percentage points in two covered jurisdictions.

See id.

2. Minority Elected Officials

Shelby County next points to the dramatic increase in the number of African-American elected officials since 1965 as proof that Section 5 has outlived its usefulness.

See

Pl.’s Mot. at 27-28; Pl.’s Reply at 46-47. Again, however, the number of African-American elected officials had already risen substantially by the time that Section 5 was reauthorized in 1975. Whereas there were only 72 black elected officials in the 11 southern states when the Voting Rights Act was first passed in 1965, there were 963 black elected officials in the seven southern states subject to preclearance by 1974, including 68 black state legislators.

See

S.Rep. No. 94-295, at 780. Yet the Supreme Court in

City of Rome

did not regard this progress as fatal to the 1975 reauthorization of the Act’s temporary provisions. Although the Court recognized that “the number of Negro elected officials had increased since 1965,”

see City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 , the Court nonetheless heeded Congress’s

*469

advice “not to be misled by sheer numbers.”

See

S.Rep. No. 94-295, at 780. Instead, it examined the

nature

of the positions to which African-Americans had been elected, and found that “most held only minor positions, none held statewide office, and their number in the state legislatures fell far short of being representative of the number of Negroes residing in the covered jurisdictions.”

See City of Rome,

446 U.S. at 181 , 100 S.Ct. 1548 .

As of 2000, 35 African-Americans held statewide office — certainly an improvement from 1975 — but the percentage of statewide elected officials who were African-American (5%) was still significantly below the African-American proportion of the voting-age population (11.9%).

See

Evidence of Continued Need

156-58 (Nat’l Comm’n Report); H.R.Rep. No. 109-478, at 33. The House Committee on the Judiciary found that in Mississippi, Louisiana, and South Carolina — all of which have been subject to preclearance since 1965— no African-American had ever been elected to statewide office.

See

H.R.Rep. No. 109-478, at 33. And in Alabama, only two African-Americans had ever been elected to statewide office as of 2006.

See

S.Rep. No. 109-295, at 133 (citing

Benefits and Costs

97 (responses of Fred D. Gray to questions submitted by Senators Cornyn, Leahy, Coburn, and Kennedy) (“Gray Responses”)).

Congress also heard evidence in 2006 that blacks were under-represented in state legislatures in the South based on their percentage of the population. Specifically, the House Committee on the Judiciary reported that in Alabama, Georgia, Louisiana, Mississippi, South Carolina, and North Carolina, blacks comprised 35% of the population, but only 20.7% of the state legislators.

See

H.R. Rep. 109-478, at 33. The House Committee on the Judiciary similarly found that the number of Latino elected officials had “failed to keep pace with [their] population growth.”

See id.

at 33-34. Shelby County objects to the Court’s reliance on such evidence in assessing the continued need for Section 5, arguing that “proportional representation is not a constitutional aim.”

See

Pl.’s Reply at 46. That may be true. But in upholding the constitutionality of the 1975 reauthorization of Section 5 in

City of Rome,

the Supreme Court noted that the percentage of black elected officials in covered jurisdictions still fell short of their total percentage of the population.

See City of Rome,

446 U.S. at 181 , 100 S.Ct. 1548 . Following

City of Rome,

then, it is at least relevant that the percentage of minority elected officials continued to lag behind the minority percentage of the population when Congress reauthorized Section 5 in 2006.

Section 5 Objections

The Supreme Court in

City of Rome

cited “ ‘[t]he recent objections entered by the Attorney General ... to Section 5 submissions’ ” as a clear indication of the ‘“continuing need for this preclearance mechanism.’” 446 U.S. at 181, 100 S.Ct. 1548 (quoting H.R.Rep. No. 94-196, at 10-11). So, too, did Congress in 2006 point to the “hundreds of objections interposed” by the Attorney General in recent years as “[e]vidence of continued discrimination in voting” that warranted the reauthorization of Section 5.

See

2006 Amendments § 2(b)(4)(A), 120 Stat. at 577. Shelby County, however, argues that objection-related data cannot sustain the constitutionality of Section 5 for two reasons. First, Shelby County points to the fact that the number of Section 5 objections “has become exceedingly small” over the past several decades, as the Attorney General objected to less than 1% of all preclearance submissions between 1982 and 2004.

See

Pl.’s Reply at 56 (internal citations omitted). Second, Shelby County

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contends that objections are not “legitimate proxies for the type of purposeful discrimination needed to reauthorize Section 5.” Pl.’s Mot. at 32. Both of these contentions are somewhat misleading.

With respect to Shelby County’s first argument, it is undeniable that the percentage of preclearance submissions resulting in an objection — which has always been low — has continued to decline steadily over time.

See

Evidence of Continued Need

197 (Nat’l Comm’n Report). Whereas the Justice Department objected to 4.06% of all preclearance submissions from 1968 to 1972, the objection rate dropped in each successive five-year interval between 1972 and 2002, reaching a low of .05% during the 1998 to 2002 time-frame.

See Introduction to Expiring Provisions

219 (attachment to Hasen Prepared Statement). Since 2002, the objection rate has remained below 1%, with the Justice Department issuing only eight objection letters in response to 4,628 preclearance submissions in 2003, three objection letters in response to 5,211 preclearance submissions in 2004, and one objection letter in response to 4,734 preclearance submissions in 2005.

See

S.Rep. No. 109-295, at 13-14.

The decline in objection rates does not tell the full story, however. Notwithstanding the low rates of objections in recent years, the Justice Department still objected to more than 700 proposed voting changes between 1982 and 2006.

See

H.R.Rep. No. 109-478, at 21; S.Rep. No. 109-295, at 13. Moreover, the National Commission on the Voting Rights Act reported that more objections were interposed by the Attorney General between 1982 and 2004 than between 1965 and 1982, with nine of the 16 states covered by Section 4(b) receiving more objections after 1982 than before.

See

Evidence of Continued Need

172-73 (Nat’l Comm’n Report);

see also

H.R.Rep. No. 109-478, at 21. To be sure, the two time-periods (1965 to 1982 and 1982 to 2004) are not equal in length, but it remains true that a substantial number of objections have been lodged since the 1982 reauthorization of Section 5. According to the National Commission on the Voting Rights Act, the Justice Department objected to an average of more than four preclearance submissions

per month

from August 1982 through December 2004.

Id.

at 172.

It is also significant to recall that a single objection can often affect thousands of voters, as objections are lodged not only in response to small-scale electoral changes such as the moving of a polling place, but also in response to large-scale changes such as state-wide redistricting plans.

See Continuing Need

58 (Earls Responses). For example, in Alabama, the Justice Department objected to 39 preclearance submissions from 1982 through 2004,

see

Evidence of Continued Need

(Nat’l Comm’n Report) 259 (Map 5C), but these 39 objections included an objection to a congressional redistricting plan and several objections to county-wide redistricting plans,

see

History, Scope, & Purpose

109-17 (appendix to statement of Bradley J. Sehlozman, Complete Listing of Objections Pursuant to Sections 3(c) and 5 of the Voting Rights Act of 1965). In Louisiana, the Justice Department objected to 88 voting changes between 1982 and 2004,

see

Evidence of Continued Need

(Nat’l Comm’n Report) 264 (Map 5F), including

every

Louisiana House of Representatives redistricting plan that was submitted for preelearance. Indeed, from the passage of the Voting Rights Act in 1965 through its reauthorization in 2006, “[n]o Louisiana House of Representatives redistricting plan ... has been precleared as initially submitted.”

Introduction to Expiring Provisions

152 (responses of Theodore M. Shaw to questions submitted by Senators Specter, Cornyn, Leahy, Kennedy, and Schumer) (“Shaw Responses”).

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Alabama and Louisiana are by no means unique among covered

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