Opinion

Northwest Austin Municipal Utility District Number One v. Mukasey

573 F. Supp. 2d 221
2008 WL 4097645

Court: District Court, District of Columbia
Filed: Sep 4, 2008
Status: Published
Author: Tatel
On the bench: Friedman, Sullivan, Tatel
Cited by: 8 cases
Authority: More cited than 74.4%

Reversed on other grounds by Northwest Austin Municipal Utility District Number One v. Holder, 557 U.S. 193 (2009)

explaining that under Arlington Heights, "[t]he historical background of the jurisdiction's decision" must be considered in determining whether "discriminatory intent was in fact a motivating factor in a jurisdiction's enactment of legislation"

How later courts described this case

explaining that under Arlington Heights, "[t]he historical background of the jurisdiction's decision" must be considered in determining whether "discriminatory intent was in fact a motivating factor in a jurisdiction's enactment of legislation"
recognizing that "no one can know for sure what would happen if section 5 were allowed to expire"
appendix providing examples of objections based on discriminatory intent
upholding the constitutionality of Congress’s 2006 reauthorization of section 5

Written by the judges who cited it.

The opinion

OPINION

DAVID S. TATEL, Circuit Judge:

Section 5 of the Voting Rights Act of 1965 prohibits “covered jurisdictions”— those states and political subdivisions with histories of racial discrimination in voting — from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge panel of this court 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. Plaintiff, a municipal utility district in Texas, a covered jurisdiction, seeks a declaratory judgment exempting it from section 5’s “preclearance” obligation. In the alternative, plaintiff challenges section 5’s constitutionality, arguing that when Congress extended the provision in 2006 it lacked sufficient evidence of racial discrimination in voting to justify the provision’s intrusion upon state sovereignty. We reject both claims. First, plaintiff is ineligible to seek a declaratory judgment exempting it from section 5 because it does not qualify as a “political subdivision” as defined in the Voting Rights Act. Second, applying the standard set forth by the Supreme Court in

South Carolina v. Katzenbach,

383 U.S. 301 , 86 S.Ct. 803 , 15 L.Ed.2d 769 (1966), we conclude that given

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the extensive legislative record documenting contemporary racial discrimination in voting in covered jurisdictions, Congress’s decision to extend section 5 for another twenty-five years was rational and therefore constitutional. Alternatively, we conclude that section 5’s extension was constitutional even if, as plaintiff argues, its challenge is controlled by the stricter standard set forth in

City of Boerne v. Flores,

521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997). Given section 5’s tailored remedial scheme, the extension qualifies as a congruent and proportional response to the continuing problem of racial discrimination in voting.

This opinion is organized as follows. Part I describes the background of this ease, including the Voting Rights Act’s passage and key provisions; the two decisions in which the Supreme Court sustained section 5’s constitutionality,

Katzenbach

and

City of Rome v. United States,

446 U.S. 156 , 100 S.Ct. 1548 , 64 L.Ed.2d 119 (1980); the 2006 extension of section 5, which plaintiff challenges here; and the convening of this three-judge panel.

See infra

pp. 224-30. In Part II we explain why plaintiff is ineligible to seek a declaratory judgment exempting it from section 5.

See infra

pp. 230-35. In Part III we explain why we believe plaintiffs constitutional challenge is facial and why that challenge is governed by the standard set forth in

Katzenbach. See infra

pp. 235-46. Applying the

Katzenbach

standard in Part IV, we explain why Congress’s decision to extend section 5 for another twenty-five years was constitutional.

See infra

pp. 246-79. In Part V we explain why section 5’s extension survives even

City of Boeme’s

more demanding test.

See infra

pp. 279-82. And finally, in Part VI we consider and reject two arguments plaintiff makes that could be construed as an as-applied challenge to section 5.

See infra

pp. 283-84.

Ratified in 1870 after the Civil War, the Fifteenth Amendment guarantees 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 following Reconstruction, “[t]he blight of racial discrimination in voting ... infected the electoral process in parts of our country for nearly a century.”

Katzenbach,

383 U.S. at 308 , 86 S.Ct. 803 . “Beginning in 1890,” southern states “enacted tests ... specifically designed to prevent Negroes from voting,” making “the ability to read and write a registration qualification.”

Id.

at 310-11 , 86 S.Ct. 803 . Black citizens faced many other obstacles, including property qualifications, good character tests, and “[discriminatory administration of voting qualifications.”

Id.

at 311-12 , 86 S.Ct. 803 . Congress eventually responded with the Civil Rights Acts of 1957, 1960, and 1964, each of which “tried to cope with the problem by facilitating case-by-case litigation against voting discrimination.”

Id.

at 313 , 86 S.Ct. 803 . This case-by-case approach, however, did “little to cure the problem.”

Id.

Convinced that it confronted “an insidious and pervasive evil ... perpetrated ... through unremitting and ingenious defiance of the Constitution,” Congress decided to adopt “sterner and more elaborate measures,”

id.

at 309 , 86 S.Ct. 803 , by enacting a “complex scheme of stringent remedies aimed at areas where voting discrimination ha[d] been most flagrant,”

id.

at 315 , 86 S.Ct. 803 . As a result, after building a “voluminous legislative history” during eighteen days of committee hearings and twenty-nine days of floor debate, Congress, acting pursuant to section 2 of the Fifteenth Amendment — “Congress shall have power to enforce this article by appropriate legislation,” U.S. CONST.

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amend. XV, § 2 — approved the Voting Rights Act of 1965 by wide margins in both chambers.

Katzenbach,

383 U.S. at 308-09 , 86 S.Ct. 803 ; Voting Rights Act of 1965, Pub.L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. §§ 1971 , 1973 to 1973bb-1) (“1965 Act”).

Section 2 of the Voting Rights Act contains the statute’s basic prohibition: “No 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 . Other provisions of the statute strengthen the equitable powers of federal courts, authorize civil and criminal penalties, and outlaw poll taxes.

See

42 U.S.C. §§ 1973a(c), 1973h, 1973i(d), 1973j.

Unlike those provisions, which apply nationwide and are permanent, certain sections of the Act are temporary and apply only to states and political subdivisions with particularly egregious histories of racial discrimination in voting. In such “covered” jurisdictions, section 4(a) bans the use of any test or device to deny the right to vote. As originally enacted, the statute defined “test or device” as any requirement that a prospective voter “(1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” 1965 Act § 4(c), 79 Stat. at 438-39 (codified at 42 U.S.C. § 1973b(c)).

In addition to section 4(a), covered jurisdictions are subject to section 5-the provision challenged in this case. Section 5 prohibits any and all changes in voting regulations pending review and approval by the federal government in a process known as preclearance. 42 U.S.C. §§ 1973b, 1973c. To obtain preclearance of a proposed change under section 5, covered jurisdictions may either submit the proposed change to the United States Attorney General or seek a declaratory judgment from a three-judge panel of this court. 42 U.S.C. § 1973c. Under section 5, the Attorney General or the district court may preclear the change only if it “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.”

Id.

If the Attorney General interposes no objection after sixty days or if the district court grants a declaratory judgment, the jurisdiction may implement the change. Absent preclearance, covered jurisdictions may not modify any existing voting qualifications, standards, practices, or procedures. Another provision applicable only in covered jurisdictions authorizes the Attorney General to appoint federal election observers. 42 U.S.C. § 1973f.

To determine which jurisdictions would be covered, Congress adopted a formula that utilized two proxies for discrimination. Specifically, section 4(b) originally provided that the requirements of sections 4(a) and 5 would apply to any state or political subdivision that both: (1) according to the Attorney General maintained a test or device on November 1, 1964; and (2) according to the Director of the Census had registration or turnout rates below fifty percent of the voting age population in November 1964. 1965 Act § 4(b), 79 Stat. at 438 (codified as amended at 42 U.S.C. § 1973b(b)). This two-part coverage formula resulted in most southern states becoming covered jurisdictions. Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia were covered statewide.

See

28 C.F.R. pt. 51 app. Thirty-nine of North Carolina’s one hundred counties and one Arizona county also qualified for cov

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erage as separately designated political subdivisions.

See id.

Recognizing that section 4(b)’s formula could prove either over- or under-inclusive, Congress incorporated two procedures for adjusting coverage over time. First, as originally enacted, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge panel of this court a declaratory judgment that in the previous five years they had not used a test or device “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” 1965 Act § 4(a), 79 Stat. at 438 (codified as amended at 42 U.S.C. § 1973b(a)). This “bailout” provision, as subsequently amended, addresses potential statutory over-inclusiveness, allowing jurisdictions with clean records to terminate their section 5 preclearance obligation. Second, section 3(c) authorizes courts to require preclearance by any noncovered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendment. 42 U.S.C. § 1973a(c). Specifically, courts presiding over voting discrimination suits may “retain jurisdiction for such period as [they] may deem appropriate” and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General.

Id.

This judicial “bail-in’’ provision, known as a pocket trigger, addresses the formula’s potential under-inclusiveness.

Less than two months after Congress passed the Voting Rights Act, South Carolina, invoking the Supreme Court’s original jurisdiction, challenged the statute’s constitutionality. The Court granted South Carolina leave to file a complaint, expedited the case, and invited other states to participate as

amici curiae.

South Carolina argued that certain provisions of the Voting Rights Act, including the coverage formula, the test or device ban, and section 5’s preclearance requirement, “exceedfed] the powers of Congress and encroach[ed] on an area reserved to the States by the Constitution.”

Katzenbach,

383 U.S. at 323 , 86 S.Ct. 803 . Rejecting these arguments, the Court held that Congress had properly exercised its enforcement power under section 2 of the Fifteenth Amendment.

See id.

at 327 , 86 S.Ct. 803 . The “fundamental principle” guiding the Court was this: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”

Id.

at 324 , 86 S.Ct. 803 .

Four years after

Katzenbach ,

and just before sections 4 and 5 were set to expire, Congress reauthorized and extended them for five years. Pub.L. No. 91-285, § 3 , 84 Stat. 314 , 315 (“1970 Amendments”). It extended them again in 1975, this time for seven years, Pub.L. No. 94-73, § 101 , 89 Stat. 400 , 400 (“1975 Amendments”), and then again in 1982, this time for twenty-five years, Pub.L. No. 97-205, § 2 (b)(8), 96 Stat. 131 , 133 (“1982 Amendments”). Pri- or to each extension, Congress held numerous hearings and heard extensive testimony documenting the continued existence of racial discrimination in voting.

These reauthorizations amended the Voting Rights Act in several important ways. Most relevant to this case, the 1975 Amendments added section 4(f), which bars voting discrimination against certain language minorities — specifically, persons of American Indian, Asian American, Native Alaskan, and Spanish heritage. 1975 Amendments §§ 203, 207, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. §§ 1973b(f), 19737(c)(3)). Acting pursuant to the Fourteenth Amendment, as well as the Fifteenth, Congress expanded the definition of “test or device” to include the provision of English-only voting materials

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in jurisdictions where more than five percent of voting-age citizens belonged to a single language minority.

Id.

§ 203, 89 Stat at 401-02 (codified at 42 U.S.C. § 1973b(f)(3)). As in the case of the 1970 Amendments, which added references to the 1968 election, 1970 Amendments § 4, 84 Stat. at 315 (codified as amended at 42 U.S.C. § 1973b(b)), the 1975 Amendments expanded coverage to jurisdictions that met section 4(b)’s two-part test in 1972, at that time the most recent presidential election, 1975 Amendments § 202, 89 Stat. at 401 (codified at 42 U.S.C. § 1973b(b)). The statute thus covered any jurisdiction that in 1972 used a test or device (including the provision of English-only voting materials to specified language minorities) and had registration or turnout rates below fifty percent.

See id.

§§ 203-204, 89 Stat. at 401-02 (codified at 42 U.S.C. § 1973b(b), ©).

As a result of the 1975 language minority amendments, Texas, Alaska, and Arizona became covered, as did several counties in California, Colorado, Florida, New York, North Carolina, and South Dakota, plus two townships in Michigan.

See

28 C.F.R. pt. 51 app. Section 4(f) requires these jurisdictions to provide all materials and information relating to the electoral process in the language of the applicable minority group as well as in English. 1975 Amendments § 203, 89 Stat. at 402 (codified as amended at 42 U.S.C. § 1973b(f)(4)). The Act’s other requirements, including section 5, also apply to these most recently covered jurisdictions.

Id.

§ 206, 89 Stat. at 402 (codified as amended at 42 U.S.C. §§ 1973 -1973d, 1973k).

The 1975 Amendments, including their language minority provisions, were in effect in 1980 when the Supreme Court again upheld the constitutionality of section 5’s preclearanee requirement in

City of Rome v. United States,

446 U.S. at 177-82 , 100 S.Ct. 1548 . Rome, a municipality within the covered state of Georgia, argued that it was eligible for bailout and that section 5 was unconstitutional. The Court denied both claims, finding Rome ineligible to apply for bailout and “declining] th[e] invitation to overrule Congress’ judgment that the 1975 extension was warranted.”

Id.

at 180 , 100 S.Ct. 1548 . Emphasizing Congress’s finding that “minority political progress under the Act, though undeniable, had been modest and spotty,”

id.

at 181 , 100 S.Ct. 1548 (internal quotation marks omitted), the Court concluded that Congress’s “considered determination that at least another 7 years of statutory remedies were necessary to counter the perpetuation of 95 years of pervasive voting discrimination is both unsurprising and unassailable,”

id.

at 182 , 100 S.Ct. 1548 .

The 1982 reauthorization amended the bailout mechanism in two respects. First, it sharply increased the number of jurisdictions eligible to pursue bailout. Previously, only states or separately designated political subdivisions (such as covered counties in noncovered states) could seek bailout. In the 1982 Amendments, however, Congress allowed political subdivisions

within

covered states to apply for bailout, even if such subdivisions had never been separately designated for coverage. 1982 Amendments § 2(b)(2), 96 Stat. at 131 (codified as amended at 42 U.S.C. § 1973b(a)(l)). Second, the 1982 Amendments altered the substantive requirements for bailout. To qualify for bailout under earlier versions of the Act, covered jurisdictions had to show that during some period of time — the previous five, ten, or seventeen years, depending upon the version of the Act then in effect — they had maintained no test or device and no court had found they had denied or abridged the right to vote.

See

1965 Act § 4(a), 79 Stat. at 438; 1970 Amendments § 3, 84 Stat. at

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315; 1975 Amendments §§ 101, 201, 206, 89 Stat. at 400-02. Because this approach “offered no bailout opportunity for jurisdictions that eliminated discriminatory voting tests and practices that [had been] used at the time of initial coverage,” Congress liberalized the standard to give even those jurisdictions with post-1965 histories of discrimination an incentive to improve their voting rights records. Paul F. Hancock

Lora L. Tredway,

The Bailout Standard of the Voting Rights Act: An Incentive to End Discrimination,

17 URB. Law. 379, 381 (1985). To accomplish this, the 1982 Amendments require covered jurisdictions seeking bailout to demonstrate (among other things) that during the past ten years they used no test or device, were the subject of no judicial findings of racial discrimination in voting, successfully pre-cleared all voting changes, and engaged in constructive efforts to eliminate intimidation and harassment of voters.

See

1982 Amendments § 2(b)(4), 96 Stat. at 131-32 (codified at 42 U.S.C. § 1973b(a)(l)(A)-(F));

see also id.

at 2663 (Roberts, C.J., dissenting) (“It is a sordid business, this divvying us up by race.”);

id.

at 2667 (Scalia, J., dissenting) (“[W]hen a legislature intentionally creates a majority-minority district, race is necessarily its predominant motivation.”). Because the Fifteenth Amendment, like the Fourteenth, prohibits discrimination on the basis of race, these cases, which treat persons of Spanish heritage as a distinct racial group, support the conclusion that the Fifteenth Amendment gave Congress all the authority it needed

*245

to extend section 5 to protect language minorities.

Indeed, the Justice Department advised Congress that it had no need to invoke the Fourteenth Amendment in order to expand section 5 protection to language minorities. “[I]t is clear,” the Justice Department explained in a 1975 memorandum to the Senate Judiciary Committee, “that [the Fifteenth Amendment’s] protection is not limited to blacks.”

Extension of the Voting Rights Act of 1965, Hearing Before the Subcomm. on Constitutional Rights of the S. Comm, on the Judiciary,

94th Cong. 698 (Apr. 29, 1975) (exhibit to testimony of J. Stanley Pottinger). The Department pointed out that when drafting the Fifteenth Amendment, the Senate “twice rejected ... a provision which stated that: ‘Citizens ... of African descent shall have the same right to vote and hold office ... as other citizens,’ ” and that some opposition to this proposal “was based on the belief that the amendment’s protection should not be limited to one race.”

Id.

(second and third omissions in original). Moreover, California and Oregon refused to ratify the amendment in part because of “fear that it would lead to enfranchisement of Chinese persons.”

Id.

Given that “there was general agreement in Congress in 1869 that the 15th Amendment would protect the voting rights of Indians,”

id.

at 699, and given that the “vast majority of the population of Mexico is at least in part of Indian ancestry,” the Justice Department concluded by “staffing] firmly ... that Congress has the power under [section] 2 of the 15th Amendment to enact legislation protecting the voting rights of [Mexican-Americans] or Puerto Ricans,”

id.

at 700. The Department explained that this view was consistent with its implementation of the Voting Rights Act: in reviewing section 5 submissions, the Attorney General had consistently “treat[ed] Indians, Puerto Ri-cans and Mexican-Americans as racial groups.”

Id.

at 698.

Having heard the Justice Department’s advice, Congress cited the Fourteenth Amendment only out of an abundance of caution. The Senate Report explains:

The Department of Justice and the United States Commission on Civil Rights have both expressed the position that all persons defined in this title as “language minorities” are members of a “race or color” group protected under the Fifteenth Amendment. However, the enactment of the expansion amendments under the authority of the Fourteenth as well as the Fifteenth Amendment, would

doubly insure

the constitutional basis for the Act. S.Rep. No. 94-295, at 47-48 (1975) (emphasis added). Thus, although Congress cited the Fourteenth Amendment when it extended section 5 in 1975, 1982, and 2006, it had no need to do so, as it could have relied solely on the Fifteenth Amendment.

To sum up, given relevant Supreme Court precedent, we must treat this case either as a sequel to

City of Rome

or as a straightforward Fifteenth Amendment case. Either way we must apply

Katzen-bach’s

and

City of Rome’s

rationality test. With its greater degree of deference to Congress, this test is proper here because, put simply, this case implicates Congress’s express constitutional authority to remedy

racial

discrimination in

voting.

None of the

City of Boeme

cases involved two such essential rights, much less any rights so close to the core objectives of the Civil War Amendments. We thus have no basis for reading those cases as overturning the Court’s longstanding rule, set forth in

Kat-zenbach

and followed in

Morgan, Mitchell, Georgia,

and

City of Rome ,

that “against the reserved powers of the states, Congress may use any rational means to effec

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tuate the constitutional prohibition of racial discrimination in voting.”

Katzenbach,

383 U.S. at 324 , 86 S.Ct. 803 .

Indeed, as a district court bound by Supreme Court precedent, we would follow

Katzenbach

and

City of Rome

even if we thought the

City ofBoeme

cases cast some doubt on those cases. As the Supreme Court has warned, “[i]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, [district courts] should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

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

490 U.S. 477, 484 , 109 S.Ct. 1917 , 104 L.Ed.2d 526 (1989). Here, the decisions that “directly control[ ]” are

Kat-zenbach

and

City of Rome ,

for only they resolve constitutional challenges to section 5 of the Voting Rights Act.

IV.

Before applying

Katzenbach’s

rationality standard to the record before us, we can easily dispose of three of the District’s broader attacks on the Act’s constitutionality, for each was squarely considered and rejected in

City of Rome .

First, the District challenges section 5 as an extraordinarily intrusive federal mandate that “interfere[s] with and reorders] state government,” violating rights reserved to the states under the Tenth Amendment. Pl.’s Mem. at 26. In

City of Rome ,

however, the Court made clear that the Fifteenth Amendment was “specifically designed as an expansion of federal power and an intrusion on state sovereignty.” 446 U.S. at 179 , 100 S.Ct. 1548 . Second, the District argues that because the Fifteenth Amendment prohibits only “measures implemented with the intent and effect of denying racial minorities access to the ballot,” section 5 “cuts too broad a swath” given that it covers a “vast amount of clearly constitutional government activity.” PL’s Mem. at 45, 56. Rejecting the identical argument in

City of Rome ,

the Court held that “the Act’s ban on electoral changes that are discriminatory in effect is an appropriate method of promoting the purposes of the Fifteenth Amendment, even if it is assumed that § 1 of the Amendment prohibits only intentional discrimination in voting.”

City of Rome,

446 U.S. at 177 , 100 S.Ct. 1548 ;

cf. Lopez,

525 U.S. at 282 , 119 S.Ct. 693 (“[Section] 5’s preclearance requirement applies to a covered county’s nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction.”). Finally, pointing to congressional findings of “significant progress” under the Act, the District insists that “Congress could not permissibly [extend section 5] with no showing that [the] extraordinary conditions [of 1965] persist in modern times.” PL’s Mem. at 46-47. Yet in

City of Rome ,

while acknowledging minority political progress since 1965, the Court still accepted Congress’s judgment that extension of section 5’s preclearance requirement was “necessary ... to promote

further amelioration of

voting discrimination.”

City of Rome,

446 U.S. at 182 , 100 S.Ct. 1548 (emphasis added).

With the District’s resurrected arguments out of the way, we turn to the primary task before us. Under

Katzen-bach

and

City of Rome ,

we ask whether Congress could rationally have concluded that unless it extended section 5, “racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or wül have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” 2006 Amendments § 2(b)(9), 120 Stat. at 578. Given that the Court in

City of Rome

found the 1975 legislative record sufficient

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to demonstrate that Congress had rationally extended section 5, the more precise questions before us are these: how do the nature and magnitude of the racial discrimination in voting revealed in the 2006 legislative record compare to the conditions documented by Congress in 1975, and is the 2006 record sufficiently comparable to the 1975 record for us to conclude that Congress again acted rationally when it extended section 5 for another twenty-five years?

Keeping

Katzenbach’s

deferential standard firmly in mind and using the 1975 legislative record as a guidepost, we begin our review of the 2006 legislative record with Congress’s consideration of the three categories of evidence the Court examined in

City of Rome :

racial disparities in registration (as well as turnout), the number of minority elected officials, and objections by the Attorney General. We then examine additional evidence Congress relied upon in 2006: “more information request” letters from the Attorney General, judicial preclearance suits, section 5 enforcement actions, section 2 litigation, appointment of federal election observers, and racially polarized voting. This summary concludes with evidence of section 5’s deterrent effect. All citations are to evidence contained in the legislative record. A few studies presented to Congress in draft form later underwent minor revisions before being published, but given that our review is limited to the actual evidence Congress considered, we refer only to the original versions.

Registration and Turnout

Massive disparities between black and white registration rates in many southern states, together with other evidence of discrimination, prompted the original enactment of the Voting Rights Act in 1965. For example, black registration was 32% in Louisiana, 19% in Alabama, and only 6% in Mississippi — more than 50 percentage points below the rate for white citizens in each of those states. S.Rep. No. 109-295, at 11 (2006);

Katzenbach,

383 U.S. at 313 , 86 S.Ct. 803 . In its challenge to the 1975 reauthorization, Rome pointed out that by 1976 black registration rates in four southern states exceeded the national average for blacks and argued that the “emergency with respect to which Congress acted in 1964 ha[d] passed.” Brief for the Appellants at 106-07,

City of Rome,

446 U.S. 156 , 100 S.Ct. 1548 (No. 78-1840). Although the Supreme Court acknowledged this dramatic progress, it upheld the constitutionality of the 1975 extension because Congress had found that “[significant disparity persisted between the percentages of whites and Negroes registered in at least several of the covered jurisdictions.”

City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 . In particular, 16- to 24-point gaps in registration rates persisted in Alabama, Louisiana, and North Carolina. H.R.Rep. No. 94-196, at 7 (1975); S.Rep. No. 94-295, at 13 (1975).

Echoing Rome’s arguments, the District claims that increasing black registration and turnout rates, as documented by Congress in 2006,

“negate

the existence of extraordinary circumstances like those existing in 1965.” Pl.’s Mem. at 47-48 (discussing findings in S.Rep. No. 109-295, at 8 (2006), and H.R.Rep. No. 109-478, at 12 (2006)). But this is the wrong comparison. As noted above, the

City of Rome

Court acknowledged the dramatic progress the South had made since 1965, yet found the evidence of continued discrimination sufficient to justify the 1975 extension. The correct comparison, then, is between the evidence the Court found sufficient in

City of Rome

and the evidence Congress compiled in 2006. Viewed from that perspective, the racial disparities revealed in the 2006 legislative record differ little from what Congress found in 1975. Alabama,

*248

Louisiana, and North Carolina had racial disparities in registration of 16 to 24 points at the time of

City of Rome ;

the 2006 House Report identifies comparable gaps in three other states: Virginia, Texas, and Florida. In Virginia the racial disparity between whites and blacks in registration was 11 points; the disparity in turnout was 14 points. H.R.Rep. No. 109-478, at 25 (2006). In Texas the registration gap between whites and Hispanics was 20 points.

Id.

at 29. And in Florida the House committee found even larger gaps between whites and Hispanics: 31 points in registration and 24 points in turnout.

Id.

In other words, despite significant progress— attributable in large part to the Voting Rights Act itself — Congress, having surveyed evidence from covered jurisdictions, determined that more remained to be done.

In fact, as NAACP intervenors point out, racial disparities in electoral participation were actually greater than even Congress believed. Both the House and Senate Reports rely on a 2004 census table, but each focuses on the wrong row of numbers, i.e., on a row entitled “White alone” rather than the row immediately below entitled “White non-Hispanic alone.” This mistake effectively reduced the registration and turnout rates of non-Hispanic whites. NAACP Mem. at 60-61 (citing Senate testimony of Nathaniel Persily). Data in the correct row reveal that black registration and turnout rates were higher than those of non-Hispanic whites not in five covered states, as Congress thought, but in only one — Mississippi.

Compare

U.S. Census Bureau, Current Population Survey tbl. 4a (Nov.2004) (“Census Bureau Survey”),

available at

http://www.census. gov/population/soedemoAoting/cps2004/tab 04a.xls,

with

S.Rep. No. 109-295, at 11 (2006). The impact of this error in Texas was dramatic: although both the House and Senate committees reported that black registration and turnout rates

exceeded

those for whites by 7 and 5 points respectively, those rates were actually 5 and 8 points

lower

than for non-Hispanic whites alone.

Compare

H.R.Rep. No. 109-478, at 12 (2006),

and

S.Rep. No. 109-295, at 11 (2006),

with

Census Bureau Survey tbl. 4a.

At oral argument counsel for the District pointed to a second error, namely that “with respect to Hispanic registration rates in Texas, if you equalize for citizenship, that gap [of 20 points between whites and Hispanics] largely disappears.” Mots. Hr’g Tr. at 43 (Sept. 17, 2007). True, Congress failed to acknowledge that only 71% of Hispanic adults in Texas were U.S. citizens eligible to register,

see

Census Bureau Survey tbl. 4a. But taking citizenship into account hardly makes the registration gap “largely disappear! ].” In fact, a substantial 16-point gap remains,

id.

— a gap comparable to the disparity the

City of Rome

Court called “significant.”

City of Rome,

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

Minority Elected Officials

In 1965, when Congress originally enacted the Voting Rights Act, only seventy-two blacks were serving as elected officials in eleven southern states. S.Rep. No. 94-295, at 14 (1975). Ten years later, when Congress extended section 5 for a second time, 995 black elected officials, including sixty-eight state legislators and one member of Congress, were serving in seven covered states.

Id.

Acknowledging this progress in

City of Rome ,

the Court took note of Congress’s finding that “ ‘a bleaker side of the picture yet exists,’ ” observing that black elected officials “held only relatively minor positions, none held statewide office, and their number in the state legislatures fell far short” of proportional representation.

City of Rome,

446 U.S. at 180-81 , 100 S.Ct. 1548 (quoting H.R.Rep. No. 94-196, at 7 (1975)). In Mississippi, then 37% black, African Americans held less than 1% of state legislative seats. S.Rep. No.

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94-295, at 14 (1975). And in South Carolina, then 31% black, they held less than 8% of legislative seats.

Id.

Highlighting the South’s progress, the District cites Congress’s finding that the number of African American elected officials in the six southern states originally covered by the Act “increased by approximately 1000 percent

since 1965.”

H.R.Rep. No. 109-478, at 18 (2006) (emphasis added). Again, this is the wrong comparison. Although the House committee found that minorities have made significant gains in winning elected office in covered jurisdictions,

id.,

progress on this front, as the Court recognized in

City of Rome ,

was well underway by 1975, 446 U.S. at 180 , 100 S.Ct. 1548 . And like the “bleaker side” Congress emphasized in 1975, the 2006 legislative record reveals that gains by minority candidates remain uneven, both geographically and by level of office. In three of the six originally covered states — Mississippi, Louisiana, and South Carolina — the House committee found that not one African American had ever been elected to statewide office. H.R.Rep. No. 109-478, at 33 (2006). The committee also reported that African Americans accounted for only 21 % of state legislators in six southern states where the black population averaged 35% — Alabama, Georgia, Louisiana, Mississippi, South Carolina, and North Carolina.

Id.

Finally, the committee found that the number of Latinos and Asian Americans elected to office nationwide “has failed to keep pace with [the] population growth” of those two communities.

Id.

Attorney General Objections

Recall that section 5 requires covered jurisdictions to submit all proposed voting changes for review to either the Attorney General or a three-judge panel of this court.

See supra

p. 225. During the Act’s first five years, from 1965 to 1970, the Attorney General reviewed 578 proposed changes, objecting to only 4%. H.R.Rep. No. 94-196, at 9-10 (1975). Around the time of the 1970 Amendments, the Justice Department adopted regulations for screening submissions, and two Supreme Court rulings “gave broad interpretations to the scope of Section 5.”

Id.

at 9 (discussing

Allen v. State Bd. of Elections,

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

Perkins v. Matthews,

400 U.S. 379 , 91 S.Ct. 431 , 27 L.Ed.2d 476 (1971)). These two events produced a spike in section 5 submissions, from 255 in 1970 to an annual average of 975 from 1971 to 1974, during which time the rate of Attorney General objections remained steady at 3 to 4%.

Id.

In its challenge to the 1975 reauthorization, Rome informed the Court that by 1978 the objection rate had fallen sharply to 0.8%. Jurisdictional Statement of Appellants at 42 n. 16,

City of Rome,

446 U.S. 156 , 100 S.Ct. 1548 (No. 78-1840). Given this, Rome argued that section 5 had become obsolete and that administrative preclearance, “having become a mere ‘inventory of voting procedures,’ ha[d] paradoxically become a ‘dead letter.’ ”

Id.

(quoting

Georgia,

411 U.S. at 531, 538 , 93 S.Ct. 1702 ). The Supreme Court rejected this argument, emphasizing Congress’s “ringing endorsement” of section 5 and quoting at length from the 1975 House Report:

The recent objections entered by the Attorney General ... clearly bespeak the continuing need for this preclearance mechanism. As registration and voting of minority citizens increases [sic], other measures may be resorted to which would dilute increasing minority voting strength....

The Committee is convinced that it is largely Section 5 which has contributed to the gains thus far achieved in minority political participation, and it is like

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wise Sect[i]on 5 which serves to insure that that progress not be destroyed through new procedures and techniques.

City of Rome,

446 U.S. at 181 , 100 S.Ct. 1548 (quoting H.R.Rep. No. 94-196, at 10-11 (1975)).

Again echoing Rome’s challenge, the District argues that the objection rate has been “negligible in recent years.” Pl.’s Mem. of P. & A. in Opp’n to Defs.’ Mots, for Summ. J. at 63 (“PL’s Opp’n”). According to the District, the rate has become “so vanishingly small” as to refute all claims that section 5 “acts as anything other than a symbolic assertion of federal supremacy intended to perpetuate the fiction that states and localities cannot be trusted to enact fair and nondiscriminatory voting practices and procedures.”

Id.

at 64. For support the District cites statistics revealing a steady drop in objection rates over 5-year intervals beginning in 1968: from 4.06% (1968-72) to 1.31% (1973-77) to .44% (1978-82) to .21% (1983-87) and ultimately to .05% (1998-2002).

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. 219 (May 9, 2006)

(“Introduction to Expiring Provisions

”) (statement of Richard L. Hasen),

available at

http:// www.access.gpo.gov/congress/senate/pdf/ 109hrg/28213.pdf.

Objection rates have indeed declined, but that hardly means section 5 has outlived its usefulness. For one thing, Congress heard testimony that the Attorney General interposed more objections between August 1982 and 2004(626) than between 1965 and the 1982 reauthorization (490). 1

Evidence of Continued Need

172 (report of Nat’l Comm’n on the Voting Rights Act). Map 5A, at end of opinion, displays the number of objections in each covered jurisdiction, revealing that nine states received more objections after 1982 than before.

Id.

at 259 (showing that in nine of fourteen covered states receiving objections, the post-1982 total (the lower, bolded number) is greater than half the cumulative 1966-2004 total (the upper, italicized number)). Congress found that “[t]his increased activity shows that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.” H.R.Rep. No. 109-478, at 21 (2006);

see also id.

at 21-24, 36^10 (discussing section 5 objections). Moreover, as the legislative record reveals, the objection rate has always been low, and the sharpest declines occurred before

City of Rome. Introduction to Expiring Provisions

219 (statement of Richard L. Hasen). Finally, as the intervenors point out, the number and rate of objections reveal little about the true impact of a proposed change. For example, an objection to a minor procedural change by a small utility district affects far fewer voters than an objection to a statewide redistricting, yet each counts as one objection. And the frequency of objections depends on a variety of factors unrelated to actual levels of discrimination, such as shifting Supreme Court and statutory standards as well as how aggressively different Attorneys General interpret and enforce the law.

See, e.g., Miller v. Johnson,

515 U.S. 900, 923-27 , 115 S.Ct. 2475 , 132 L.Ed.2d 762 (1995) (rejecting Attorney General’s view that section 5 requires covered jurisdictions to maximize the number of majority-minority districts in ameliorative redistricting plans);

Reno v. Bossier Parish Sch. Bd.,

520 U.S. 471, 477 , 117 S.Ct. 1491 , 137 L.Ed.2d 730 (1997)

(“Bossier Parish I

”) (rejecting Attorney General’s view that violations of section 2 provide an independent basis for section 5 objections);

Reno v. Bossier Parish Sch. Bd.,

528 U.S. 320, 335-36 , 120 S.Ct. 866 , 145 L.Ed.2d 845 (2000)

(“Bossier Parish II”)

(rejecting Attorney General’s view

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that section 5 authorizes objections based on a finding of discriminatory but nonre-trogressive purpose); 2006 Amendments § 5, 120 Stat. at 580-81 (overruling

Bossier Parish II

by defining “purpose” to include “any discriminatory purpose”).

Significantly for our purposes, Congress’s evaluation of the evidence extended beyond bare numbers of submission counts and objection rates. Like the Congress that extended the Act in 1975, the 2006 Congress delved into the

“types

of submissions made by covered jurisdictions and the ...

nature

of objections interposed by the Attorney General.”

City of Rome,

446 U.S. at 181 , 100 S.Ct. 1548 (emphasis added). As in 1975, the legislative record reveals that the Attorney General interposed objections to a wide variety of electoral changes proposed by governments at all levels.

See

Voting Rights Act: Section 5 of the Act-History, Scope, and Purpose, Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary,

109th Cong. 225-1684 (Oct. 25, 2005) (“1

Section 5 History

”) (displaying by state all objection letters since 1982),

available at

http://judiciary.house.gov/media/pdfs/ printers/109th/24120_vol.l.pdf; 2

Section 5 History

1686-2595 (same). Since 1982, the Attorney General has objected to at least one statewide election change in every fully covered state and in most partially covered states; indeed, Map 5B, at end of opinion, reveals that six covered states received more such objections after 1982 than before. 1

Evidence of Continued Need

260 (report of Nat’l Comm’n on the Voting Rights Act). In one particularly stark example, Congress heard testimony that not one redistricting plan for the Louisiana House of Representatives had ever been precleared as originally submitted.

To 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. 16 (Oct. 18, 2005) (“Impact and Effectiveness”) (testimony of Marc Morial),

available at

http:// judiciary.house.gov/media/pdfs/printers/109 th/24033.pdf. Within states, at the local government level, objections were more numerous in areas with higher percentages of minority residents, as Maps 5F and 5G (at end of opinion) show for Louisiana and Mississippi. 1

Evidence of Continued Need

264-65 (report of Nat’l Comm’n on the Voting Rights Act). Even the smallest political subunits, including several water districts in Texas, received objections. For example, in a 1994 letter concerning the Gonzales County Underground Water Conservation District, the Attorney General objected to a redistricting plan with “grossly malappor-tioned” districts that were developed through a process in which “the minority community appeared] effectively to have been frozen out.” 2

Section 5 History

2458 (Letter from Deval L. Patrick, Assistant Attorney Gen., DOJ Civil Rights Div., to Mary Anne Wyatt (Oct. 31, 1994)). In 1993 the Edwards Underground Water District drew an objection when, having recently elected its first Hispanic directors, it sought to replace its system of single-member districts with an appointed board.

Id.

at 2424 (Letter from James P. Turner, Acting Assistant Attorney Gen., DOJ Civil Rights Div., to John Hannah, Jr., Tex. Sec’y of State (Nov. 19, 1993)). And in 1991 the Attorney General blocked Lubbock County Water Control and Improvement District No. 1 from reassigning polling places serving minority voters to “more remote and inaccessible rural communities.”

Id.

at 2301 (Letter from John R. Dunne, Assistant Attorney Gen., DOJ Civil Rights Div., to Don Graf, Esq. (Mar. 19, 1991)).

Equally significant, Congress heard testimony regarding many objection letters in which the Attorney General summarized

*252

evidence of possible intentional discrimination and concluded that the jurisdiction had failed to satisfy its burden of demonstrating that the proposed change was not motivated by a discriminatory or retrogressive purpose.

See, e.g., Voting Rights Act: Section 5

— Preclearance

Standards, Hearing Before the Subcomm. on the Constitution of the H. Comm, on the Judiciary,

109th Cong. 7-8, 13-18 (Nov. 1, 2005)

(“Section 5

— Preclearance

Standards

”) (testimony of Mark A. Posner) (discussing objections based on discriminatory intent in the 1990s),

available at

http://judiciary. house.gov/media/pdfs/printers/109th/24283. pdf;

id.

at 20 (testimony of Brenda Wright) (observing that during the 1980s and 1990s, “over 200 section 5 objections were based solely on racially discriminatory intent”). Objection letters based on intent provide particularly salient evidence of potentially unconstitutional state action.

See Bossier Parish I,

520 U.S. at 481 , 117 S.Ct. 1491 (“Since 1980, a plaintiff bringing a constitutional vote dilution challenge, whether under the Fourteenth or Fifteenth Amendment, has been required to establish that the State or political subdivision acted with a discriminatory purpose.”). Using the analytic framework set forth in

Village of Arlington Heights v. Metropolitan Housing Dev. Corp.,

429 U.S. 252, 265-66 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977), which the Attorney General employs to evaluate possible intentional discrimination, see

Bossier Parish I,

520 U.S. at 488-89 , 117 S.Ct. 1491 (finding the

Arlington Heights

framework relevant to section 5 purpose analysis), one study in the legislative record found that during the two decades from 1980 to 2000, the Attorney General interposed 421 objections based entirely or partly upon discriminatory intent.

Section 5

— Preclearance

Standards

129-30, 180 tbl. 2. Even as recently as the 1990s, 43% of all objections were based on intent alone, while another 31 % were based on a combination of intent and effect.

Id.

at 180 tbl. 2. Relying on this large number of intent-based objections, the House committee found that covered jurisdictions continued to “intentionally develop[ ]” voting changes “to keep minority voters and candidates from succeeding in the political process,” including so-called second-generation techniques such as: “enacting discriminatory redistricting plans; switching offices from elected to appointed positions; relocating polling places; enacting discriminatory annexations and deannexations; setting numbered posts; and changing ... single member districts to at-large voting and implementing majority vote requirements.” H.R.Rep. No. 109-478, at 36 (2006);

see also id.

at 12; 2006 Amendments §§ 2(b)(1) and (2), 120 Stat. at 577 (discussing first and second generation barriers). This finding mirrors the 1982 legislative record where Congress observed that “the right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot,” H.R.Rep. No. 97-227, at 17 (1981) (quoting

Allen,

393 U.S. at 569 , 89 S.Ct. 817 ), and that “covered jurisdictions have substantially moved from direct, over[t] impediments to the right to vote to more sophisticated devices to dilute minority voting strength,” S.Rep. No. 97-417, at 10 (1982), U.S.Code Cong. & Admin.News 1982, p. 187.

Three Mississippi objection letters are particularly revealing. The first involves the town of Kilmichael, where the white mayor and the all-white Board of Aider-men cancelled local elections in 2001 when an “unprecedented number” of African Americans sought office. H.R. REP. NO. 109-478, at 36-37 (2006). After objecting to the cancellation, the Justice Department discovered that, according to the most recent census, African Americans had become a majority in Kilmichael. The town refused to reschedule the election, but af

*253

ter the Attorney General forced it to do so, Kilmichael elected three African American aldermen and its first African American mayor.

Id.

The second letter involves Mississippi’s recent efforts to revive its dual registration system, “which was initially enacted in

1892 to

disenfranchise Black voters.” H.R.Rep. No. 109-478, at 39 (2006). Requiring separate registration for state and federal elections, the system was struck down in 1987 by a federal court.

Operation Push v. Allain,

674 F.Supp. 1245 (N.D.Miss.1987),

aff'd sub nom. Operation Push v. Mabus,

932 F.2d 400 (5th Cir.1991). In 1995, without seeking pre-clearance, Mississippi again established separate registration systems, ostensibly to comply with the National Voter Registration Act, which required states to provide voter registration through public assistance agencies. Mississippi, however, allowed registration at its Department of Human Services only for federal elections and administered the new system “in such a way that discriminatory effects on black voters were not just foreseeable but almost certain to follow.”

Section 5

— Pre-

clearance Standards

83 (Letter from Isabelle Katz Pinzler, Assistant Attorney Gen., DOJ Civil Rights Div., to Sandra M. Shelson, Miss. Special Attorney Gen. (Sept. 22, 1997)). According to the Justice Department, the reasons state officials gave for rejecting alternative proposals were “insubstantial, and in some cases ... couched in racially charged terms indicating antipathy towards ‘welfare voters.’ ”

Id.

After the Supreme Court directed Mississippi to submit the changes for review,

Young v. Fordice,

520 U.S. 273 , 117 S.Ct. 1228 , 137 L.Ed.2d 448 (1997), the Attorney General denied preclearance, finding that the state had failed to show its registration procedures were “not tainted by improper racial considerations.”

Section 5

— Preclearance

Standards

83;

see also id.

at 70-78 (statement of Brenda Wright); 2

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

109th Cong. 1725-26 (Mar. 8, 2006) (“2 Evidence of Continued Need”) (report of Robert McDuff), available at http://judiciary.house. gov/media/pdfs/printers/109th/26411v2.pdf.

In the third Mississippi letter, the Attorney General concluded that the 1991 statewide redistricting plan was “calculated not to provide black voters in the Delta with the equal opportunity for representation required by the Voting Rights Act.” 1

Section 5 History

1411 (Letter from John R. Dunne, Assistant Attorney Gen., DOJ Civil Rights Div., to Hainan A. Miller, Miss. Senate Elections Committee Chair (July 2, 1991)). According to the Attorney General, the legislative debate was “characterized by overt racial appeals.”

Id.

at 1412. Congress heard testimony that when speaking on the floor of the state legislature, members referred to an alternative plan that would have increased the number of black majority districts as the “black plan”; privately, they called it the “nigger plan.”

Modem Enforcement of the Voting Rights Act, Hearing Before the S. Comm, on the Judiciary,

109th Cong. 22 (May 10, 2006) (testimony of Robert B. McDuff),

available at

http://www.access.gpo.gov/ congress/senate/pdf/109hrgZ28342.pdf.

Scouring the legislative record ourselves, we have discovered many more section 5 objections based on discriminatory intent. In the Appendix to this opinion, we summarize a representative sample from Alabama, California, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, and Virginia.

See infra

pp. 289-301. The District dismisses such objection letters as mere “anecdotes” that “come nowhere close to showing extraordinary circumstances or a ‘systematic resistance to the Fifteenth Amendment.’ ”

*254

PL’s Mem. at 51 (quoting

Katzenbach,

383 U.S. at 328 , 86 S.Ct. 803 ). But Congress found to the contrary. Based on all the evidence, the House committee concluded that “voting changes devised by covered jurisdictions resemble those techniques and methods used in 1965, 1970, 1975, and 1982.” H.R. Rep. No. 109-478, at 36 (2006);

cf.

H.R.Rep. No. 94-196, at 10 (1975) (renewing section 5 to prevent use of “at-large elections, annexations of predominantly white areas, or the adoption of discriminatory redistricting plans”).

More Information Requests

Congress discovered additional evidence of intentional discrimination in letters from the Attorney General asking jurisdictions seeking section 5 preclearance to provide additional information about their proposed changes. Known as “more information requests” (“MIRs’’), these letters typically explain that the submitted information is “insufficient to enable [the Department] to determine that the proposed change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, color, or membership in a language minority group.” 2

Evidence of Continued Need

2570 (Letter from Joseph D. Rich, Acting Chief, Voting Section, DOJ Civil Rights Div., to Wilbur T. Gamble III, Esq. (Apr. 17, 2000)). As the House Report explains, a jurisdiction seeking preclearance may respond by submitting the requested information “to prove a change is non-discriminatory” or by taking one of three actions: (1) withdrawing the requested change “because it is discriminatory”; (2) filing a “new or amended non-discriminatory voting plan”; or (3) offering no response. H.R.Rep. No. 109-478, at 40 (2006). In all three circumstances, the “MIR-induced outcome” has the same effect as an objection in that the submitting jurisdiction may not implement the proposed change. 2

Evidence of Continued Need

2545 (report of Luis Ricardo Fraga and Maria Lizet Ocampo).

The District insists that MIRs represent nothing more than “federal administrative browbeating,” PL’s Opp’n at 70, but Congress thought otherwise. As the Attorney General emphasizes, the House committee found that MIR-induced outcomes “are often illustrative of a jurisdiction’s motives.” H.R.Rep. No. 109-478, at 40 (2006). Indeed, the committee found that together with objection letters, the increased number of revised submissions and withdrawals during the last 25 years represents “strong [evidence] of continued efforts to discriminate.”

Id.

at 36. Recognizing that “[s]ection 5’s reach in preventing discrimination is broad,” Congress found that “[i]ts strength lies not only in the number of discriminatory voting changes it has thwarted, but ... also [in] the submissions that have been withdrawn from consideration [and in] the submissions that have been altered by jurisdictions in order to comply with the [Act].”

Id.

In fact, in terms of enforcing section 5, MIRs have become nearly as important as formal objection letters. One study finds:

A total of 792 objections were made to proposed changes during 1990-2005____ However, the sum of the outcomes of withdrawals, superseded changes, and no responses, resulting from an MIR, is 855. This means that MIRs have ... directly affectfed] 855 additional changes, making their implementation illegal.

Evidence of Continued Need

2552-53 (report of Luis Ricardo Fraga and Maria Lizet Ocampo). According to the same study, MIRs have actually become more important than objection letters, recently deterring six times as many changes.

Id.

at 2567 tbl. 10 (reporting ratio of MIR outcomes to objections from 1999 to 2005).

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Texas stands as the covered jurisdiction most affected by MIRs, both overall and in proportion to the number of objection letters received since 1990.

Id.

at 2566 tbl. 9 (showing Texas with 290 MIR-induced outcomes, followed by Alabama with 148). In Louisiana, “no fewer than 17 ... parishes [after receiving MIRs] chose to withdraw 22 submissions, most of them redistricting proposals, since the 1982 renewal.”

Id.

at 1626 (appendix to statement of Wade Henderson). In Georgia, the city of Griffin asked the Attorney General to preclear a redistricting plan under which only two of the six single-member districts would be majority black even though the city’s black population had recently increased from 42% to 49%. 1

Evidence of Continued Need

809-10 (appendix to statement of Nadine Strossen). The Attorney General requested more information, “but the city was not responsive.”

Id.

at 809. Instead, the city abandoned the proposed change and announced it would hold elections using its existing “malapportioned” districts.

Id.

When the local NAACP sued, the city agreed to a plan with three majority-minority districts. In the next election, three African American candidates won.

Id.

at 810.

Judicial Preclearance Suits

Instead of requesting administrative preclearance from the Attorney General or after receiving an objection, a covered jurisdiction may seek a declaratory judgment from a three-judge panel of this court preclearing its proposed change. Like the Attorney General, the court can grant preclearance only if it finds 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, or in contravention of the [language minority provisions].” 42 U.S.C. § 1973c(a). Although covered jurisdictions seek Attorney General preclearance far more frequently than they file declaratory judgment actions, Congress found that the latter shed light on section 5’s impact: “Evidence of continued discrimination includes ... the number of requests for declaratory judgments denied.” 2006 Amendments § 2(b)(4)(B), 120 Stat. at 577. Specifically, evidence reveals that plaintiffs either withdrew their proposed changes or lost on the merits in twenty-five declaratory judgment actions filed since 1982. 1

Evidence of Continued Need

270 map 6 (report of Nat’l Comm’n on the Voting Rights Act). Texas and Mississippi tied for the lead, each accounting for six unsuccessful suits during that time.

Id.

The legislative record contains several examples of judicial decisions denying pre-clearance that reveal evidence of intentional discrimination. For example, in a declaratory action filed by Pleasant Grove, Alabama-then an “all-white enclave in an otherwise racially mixed area” with a “long history of racial discrimination” — the Supreme Court affirmed the district court’s denial of preclearance for two annexations.

City of Pleasant Grove v. United States,

479 U.S. 462, 464-65 , 107 S.Ct. 794 , 93 L.Ed.2d 866 (1987). While rejecting annexation petitions from two adjacent black neighborhoods, the town had sought to annex two other parcels: one vacant but “likely to be developed for use by white persons only,” and the other inhabited by whites eager to send their children to the city’s all-white schools rather than desegregated county schools.

Id.

at 465-66 , 107 S.Ct. 794 . Pleasant Grove insisted that its refusal to annex the black areas reflected economic considerations, not racial animus, but the Court affirmed the district court’s finding that the economic argument was a “mere pretext” the city “developed after the fact.”

Id.

at 470, 472 , 107 S.Ct. 794 . Finding it “quite plausible to see appellant’s annexation[s] ... as motivated, in part, by the impermissible purpose of minimizing future black voting strength,”

id.

at 471-72 , 107 S.Ct. 794 , the

*256

Court affirmed the district court’s determination that Pleasant Grove had failed to carry “its burden of showing that the annexations were untainted by a racially discriminatory purpose,”

id.

at 469 , 107 S.Ct. 794 .

In another declaratory action, Louisiana admitted, according to the Attorney General, that it aimed “to diminish black electoral opportunity in order to increase the electoral opportunity of white voters.” Def.’s Mem. at 30. Having failed to secure Attorney General preclearance for every single previous state legislative redistricting plan, Louisiana sought a declaratory judgment preclearing its 2001 plan.

Reauthorizing the Voting Rights Act

42-43 (statement of Debo P. Adegbile (counsel here for Louis intervenors)). According to testimony before Congress, that plan “eliminated a majority-black district in Orleans Parish but failed to create a comparable new opportunity for black voters anywhere else in the state.”

Id.

at 43. Louisiana explained to the court that it aimed to ensure proportional representation for white voters within Orleans Parish.

Id.

at 43-44. At no point, however, did the state ever consider how to ensure proportional representation for voters of all races statewide.

Id.

at 43. Moreover, its plan “simply ignored” the increased number of black residents in Orleans Parish.

Id.

After evidence emerged that Louisiana had violated its own redistricting guidelines, the state abandoned the litigation on the eve of trial and restored the majority-black district.

Id.

at 44.

Congress heard testimony demonstrating the cumulative impact of failed judicial preclearance suits, objection letters, and MIRs. Map 9, at end of opinion, shows for each covered state the combined number of objections, submission withdrawals, and declaratory judgment actions favorable to minorities since August 1982. 1

Evidence of Continued Need

273 (report of Nat’l Comm’n on the Voting Rights Act). Two aspects of the map warrant emphasis. First, it shows that section 5 has successfully blocked racial discrimination in voting throughout the covered states. Second, when compared to the number of post-1982 objections in Map 5A,

infra

p. 284, the combined totals in Map 9 reveal that section 5 has been far more effective in most states — especially Georgia, Mississippi, and Texas — than a mere count of objections would suggest.

Section 5 Enforcement Suits

When covered jurisdictions fail to submit voting changes for approval, either the Attorney General or private citizens may file suit under section 5 to compel pre-clearance. Failure to submit proposed changes strikes at the heart of the Voting Rights Act. As late as 1984, the Supreme Court acknowledged that “widespread noncompliance with the preclearance requirement ... combined with the absence of an independent mechanism in the Justice Department to monitor changes, has permitted circumvention of the requirement which itself was designed to eliminate circumvention of the goals of the Act.”

McCain v. Lybrand,

465 U.S. 236, 249 , 104 S.Ct. 1037 , 79 L.Ed.2d 271 (1984).

According to the House Report, “many defiant covered jurisdictions and State and local officials continue to enact and enforce changes to voting procedures without the Federal Government’s knowledge,” in part because the Attorney General lacks any “systematic way” to ensure that changes are submitted. H.R.Rep. No. 109-478, at 41 (2006). The report observes that in

Lopez

the Supreme Court found that Mon-terey County “failed to seek Federal pre-clearance for any of its six consolidation ordinances.”

Id.

at 42 (quoting

Lopez,

525 U.S. at 273 , 119 S.Ct. 693 ). The House committee expressed particular concern about “smaller, more rural communities

*257

within covered States,” where section 5 enforcement suits play an important role because noncompliance is “extensive.”

Id.

at 43. One study in the legislative record reports at least 105 successful section 5 enforcement actions between 1982 and 2004. 1

Evidence of Continued Need

250 tbl. 4 (report of Nat’l Comm’n on the Voting Rights Act). Map 11, at end of opinion, reveals that since 1982 the Attorney General has joined enforcement suits in almost every covered state.

Id.

at 281, 119 S.Ct. 693 .

The House committee singled out South Dakota as “perhaps the most egregious” offender. H.R.Rep. No. 109-478, at 42 (2006). When two counties in South Dakota first became covered in 1975, the state attorney general derided “the preelearance requirement as a ‘facial absurdity’ and advised against compliance, stating T see no need to proceed with undue speed to subject our State laws to a ‘one-man veto’ by the United States Attorney General.’ ”

Id.

South Dakota then implemented more than six hundred voting changes, many of which “negatively impacted” the voting rights of Native American citizens in its covered counties, yet the state sought pre-clearance fewer than five times.

Id.

This defiance eventually prompted Native American plaintiffs to file a section 5 enforcement suit that ended with a consent decree in which the state — after twenty-six years of noncompliance — finally promised to fulfill its preclearance obligations.

Id.

Texas lost more enforcement suits than any other covered state, accounting for 29 of the 105 cases in which plaintiffs prevailed. 1

Evidence of Continued Need

250 tbl. 4 (report of Nat’l Comm’n on the Voting Rights Act). One such case arose in Waller County, a majority-white jurisdiction that contains the majority-black city of Prairie View, home to historically black Prairie View A & M University.

Id.

at 185-86. For years, county officials discouraged Prairie View students from voting: among other actions, the county registrar tried to prevent them from registering, and local prosecutors indicted them for “illegal voting” before dropping all charges.

Id.

at 185;

see Symm v. United States,

439 U.S. 1105 , 99 S.Ct. 1006 , 59 L.Ed.2d 66 (1979),

aff'g United States v. Texas,

445 F.Supp. 1245 (S.D.Tex.1978). When two Prairie View students ran for local office in 2004, the white district attorney (a former state judge) threatened to prosecute students for illegal voting. After being sued, the district attorney relented, but less than a month before the election, white county commissioners, aware that the primary would occur when students were away on spring break, reduced the time period for early voting. The NAACP filed suit under section 5, prompting the county to restore the full schedule for early voting. Five times as many students voted early as on the day of the primary, and the student running for a seat on the county’s governing body narrowly prevailed. 1

Evidence of Continued Need

185-86 (report of Nat’l Comm’n on the Voting Rights Act).

Another Texas case arose in Seguin. After, the 2000 census revealed that Latinos had become a majority in five of the city’s eight districts, Seguin proposed a redistricting plan that would have eliminated one of the majority-Latino districts. When the Attorney General signaled that preclearance was unlikely, Seguin withdrew its proposal and then “promptly closed the candidate filing period so no Latino could run in the election for that district.” 1

Section 5 History

86 (testimony of Nina Perales (counsel here for Diaz intervenors)). When the Mexican American Legal Defense and Educational Fund filed a section 5 suit and successfully enjoined the election timetable, Latinos

*258

“elected their eandidate[s] of choice to a majority of seats.”

Id.

Section 2 and Constitutional Litigation

Enforceable through suits filed by either the Attorney General or private parties, section

contains the Act’s basic prohibition against racial discrimination in voting. 42 U.S.C. § 1973 . Although section 2 requires no proof of discriminatory intent, several section 2 cases, together with decisions resting on the Constitution alone, include express findings of intentional racial discrimination-judicial determinations that represent “reliable evidence of actual voting discrimination.”

Katzenbach,

383 U.S. at 329 , 86 S.Ct. 803 . According to the Senate Report, “[sjince 1982, six published cases have ended in a court ruling or a consent decree finding that [a] covered jurisdiction[ ] had committed unconstitutional discrimination against minority voters.” S.Rep. No. 109-295, at 13 (2006). Those six cases arose in Alabama, Georgia, Texas, and Virginia.

Id.

at 65-70 app. I. Another study in the record listed eight additional decisions finding intentional discrimination or constitutional violations in covered jurisdictions between 1982 and 2005.

See Impact and Effectiveness

986-91, 1062-64 (report of Ellen Katz). Congress thus knew of a combined total of fourteen judicial findings of intentionally discriminatory or unconstitutional state action across six covered states.

To be sure, this is not a great number of cases, especially compared to the large number of intent-based objection letters, but the relative scarcity of published judicial findings of intentional discrimination by covered jurisdictions is understandable. To begin with, section 5 preclearance has blocked hundreds of intentionally discriminatory changes in recent years,

see supra

pp. 251-52, reducing the need for section 2 litigation. Moreover, section 5 deters covered jurisdictions from even attempting to implement intentionally discriminatory changes.

See infra

pp. 164-65. As one witness explained, “the statistics [in studies of section 2 litigation] do not account for the fact that the existence of Section 5 itself functions as a deterrent to both retrogression and broader forms of voting discrimination in the covered jurisdictions.”

Introduction to Expiring Provisions

160 (written response of Theodore Shaw). Finally, compilations of

reported

cases necessarily exclude lawsuits that jurisdictions settled to avoid adverse rulings. Congress heard testimony that surveys of published opinions fail to “account for the vast number of Section 2 lawsuits that are resolved through pre-trial settlement or those suits that are dismissed because the jurisdiction adopted a remedial plan.”

Id.

at 159. Acknowledging that “some plaintiffs failed to pursue their claims, many settled, and others saw their cases go to judgment” with no published opinion, one survey of reported cases observes that the total number of section 2 actions remains unknown.

Impact and Effectiveness

974 (report of Ellen Katz). Congress, however, received testimony that although this survey discovered only three successful section 2 cases in Georgia since 1982, “[a] closer examination reveals that there have been a total of 69 successful Section 2 suits in Georgia, with most victories resulting from settlements or other pre-trial resolution of the claims.”

Introduction to Expiring Provisions

159 (written response of Theodore Shaw). In the nine fully covered states, Congress also heard that since 1982 “there have been 653 successful claims overall that provided relief to plaintiffs in various forms,” many times the number of successful published cases identified in surveys of reported decisions.

Id.

Though few in number, the section 2 decisions contained in the legislative record offer powerful evidence of continuing

*259

intentional discrimination. A particularly egregious example,

Dillard v. Town of North Johns,

717 F.Supp. 1471 (M.D.Ala.1989), followed a wave of litigation challenging racially discriminatory at-large electoral systems in cities and counties throughout Alabama.

See, e.g., Dillard v. Baldwin County Bd. of Educ.,

686 F.Supp. 1459 (M.D.Ala.1988). After conceding that its at-large system violated section 2, North Johns signed a consent decree requiring the creation of five single-member town council districts.

North Johns,

717 F.Supp. at 1473 . Prior to the first election under the new system, however, Alabama enacted a law requiring candidates for municipal office to file financial disclosure forms, and the town’s white mayor helped every candidate other than the two black candidates comply with the new requirement.

Id.

at 1473-75 . Asking the town clerk for assistance, one black candidate was referred to an office that had no forms and whose staff suggested he need not file.

Id.

at 1475 . The candidate then sought help directly from the mayor, who “refused to assist him.”

Id.

Nonetheless remaining on the ballot, the two black candidates won, but the mayor refused to swear them in and the town clerk sued to prevent them from taking office because they had failed to file the appropriate forms.

Id.

The district court ruled that “North Johns, through its mayor, intentionally discriminated against [the black candidates] because of their race.”

Id.

at 1476 .

Other examples of judicial findings of intentional discrimination include:

•

Harris v. Siegelman,

695 F.Supp. 517 (M.D.Ala.1988).

Black residents of Alabama challenged the treatment of black voters at polling places and the manner in which the state appointed poll officials. The district court found that the state had an official policy of appointing only white poll officials and of “keeping the electoral process closed to black citizens, a policy enforced both by law as well as through the use of fraud, force and intimidation, often by poll officials.”

Id.

at 525 . The court also found that two features of a racially inspired 1893 law — requiring voters seeking assistance to swear an oath of illiteracy and limiting voters to five minutes in the voting booth — remained in effect and continued to have a racially discriminatory impact. Witnesses testified that polling officials used the five-minute rule to harass black voters and refused to assist black voters either “because they did not meet the state’s rigorous assistance standard or because the white poll officials arbitrarily decided that assistance was not needed.”

Id.

at 526 . The court found that the challenged policies and 1893 statute “are products of intentional discrimination and ... continue today to have their intended discriminatory effects.”

Id.; see also Impact and Effectiveness

991 (report of Ellen Katz).

•

United States v. Charleston County,

316 F.Supp.2d 268 (D.S.C.2003).

The United States and African American residents challenged the county’s at-large system for council elections. While finding that the at-large system violated section 2, the district court rejected plaintiffs’ claim that the system was adopted with discriminatory intent, observing: “Certainly the timing of the General Assembly’s adoption of the at-large system raises suspicions, but the Court will not disparage its authors without more compelling evidence” of intentional discrimination.

Id.

at 306 . The court nonetheless “agree[d] that there is significant evidence of intimidation and harassment and by a preponderance of the evidence” made several findings of intentional discrimination.

*260

Id.

at 287 n. 23. First, “poll managers were assigned to the majority-Afriean American precincts who caused confusion, intimidated African-American voters, and had the tendency to be condescending to those voters.”

Id.

Moreover, one election commissioner had “received complaints from African-American voters concerning rude or inappropriate behavior by white poll officials in every election between 1992 and 2002,” while an attorney who worked as an election observer testified that from 1980 through 2000 “[ejvery time, every election we would have controversies in African-American precincts about voter assistance, or just the way voters are treated when they vote.”

Id.

at 287-88 n. 23 (alteration in original). Indeed, “[sjeveral white poll managers — including a future chairperson of the Election Commission — were routinely appointed as poll managers by the Election Commission and assigned to predominantly African-American polling places in Charleston County, where they intimidated and harassed African-American voters.”

Id.

at 288 n. 23. One “particularly problematic” white poll manager had such a severe record of harassing black voters that the county’s circuit court “issuefdj a restraining order against the Election Commission requiring its agents to cease interfering with the voting process.”

Id.

Yet even after being made aware of this misconduct, “the Election Commission ... had some difficulty removing him from his position as election manager.”

Id.

In 1990 “a member of the ... Election Commission and others participated in a Ballot Security Group that sought to prevent African-American voters from seeking assistance in casting their ballots.”

Id.

at 289 n. 23. Although white poll managers often complained that blacks sought to vote improperly, a former Election Commission chair “never once found merit to any such allegations.”

Id.

Finally, the court expressed “particular concern over two recent episodes of racial discrimination against African-American citizens.”

Id.

In the first, the county council “reduced the salary for the Charleston County Probate Judge in 1991, following the election of the first and only African-American person elected to that position” — a judge “whose election was upheld by the South Carolina Supreme Court and who was still forced to seek the Justice Department’s intervention to be sworn into office.”

Id.

at 289-90 n. 23. In the second episode, after African Americans for the first time won a majority of seats on the county school board, “the Charleston County Legislative Delegation to the South Carolina General Assembly sponsored several pieces of legislation to alter the method of election for the school board” without contacting board members to seek their views on the proposed changes.

Id.

at 290 n. 23. On appeal, while affirming the section 2 violation, the Fourth Circuit explained that “we do not need to reach the private plaintiffs’ claim that the at-large system violated § 2 by intentionally discriminating against minority voters.”

United States v. Charleston County,

365 F.3d 341 , 347 n. 2 (4th Cir.2004); see

also

H.R.Rep. No. 109-478, at 39-40 & n. 87 (2006);

Impact and Effectiveness

987-88 (report of Ellen Katz).

•

Williams v. City of Dallas,

734 F.Supp. 1317 (N.D.Tex.1990).

African American and Hispanic residents of Dallas, Texas, challenged the city council’s eight single-member dis

*261

tricts and three at-large seats. Ruling that the system violated section 2, the district court found that “[t]he present configuration of single-member districts intentionally packs and cracks the African-American population with the effect of diluting their vote for the purpose of maintaining the political power of whites.”

Id.

at 1409 ;

see also id.

at 92 (testimony of Joe Rogers).

Crediting such testimony, the House committee described preclearance as a “vital prophylactic tool[],” concluding that discrimination and racial disparities would have been far greater but for section 5’s deterrent effect. H.R.Rep. No. 109-478, at 21 (2006);

see also id.

at 57. The committee found that “[a]s important as the number of objections that have been interposed to protect minority voters against discriminatory changes is the number of voting changes that have never gone forward as a result of Section 5.”

Id.

at 24. For support, the committee quoted testimony that “[o]nee officials in covered jurisdictions become aware of the logic of preclearance, they tend to understand that submitting discriminatory changes is a waste of taxpayer time and money and interferes with their own timetables, because the chances are good that an objection will result.”

Id.

(quoting 1

Evidence of Continued Need

177 (report of Nat’l Comm’n on the Voting Rights Act)). The committee thus concluded that “the existence of Section 5 deterred covered jurisdictions from even attempting to enact discriminatory voting changes.”

Id.

Comparing the foregoing summary to the record Congress amassed in 1975, we return to the question posed at the outset: does the 2006 legislative record contain sufficient evidence of contemporary discrimination in voting to justify Congress’s decision to subject covered jurisdictions to section 5 preclearance for another twenty-five years? In answering this question, we emphasize that under

Katzenbach

our duty as judges is not to decide whether we would have voted to extend section 5, but rather to determine whether Congress’s decision to do so was rational. To repeat: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.”

Katzenbach,

383 U.S. at 324 , 86 S.Ct. 803 . In our view, Congress satisfied that standard.

To begin with, as in 1975, Congress approached its task seriously and with great care. It held extensive hearings and compiled a massive legislative record documenting contemporary racial discrimination in covered states. In particular, with respect to registration rates, minority elected officials, and Attorney General objections — the three indicators considered significant in

City of Rome

— the 2006 legislative record looks much like the evi

*266

dence Congress compiled in 1975. As then, “[significant disparities]” remain in registration rates “in at least several of the covered jurisdictions.”

City of Rome,

446 U.S. at 180 , 100 S.Ct. 1548 . In 1975 Congress reported registration disparities between whites and blacks of 16 to 24 points in Alabama, Louisiana, and North Carolina; in 2006 it found similar 11 to 31 point gaps between whites and either African Americans or Latinos in three other states — Florida, Texas, and Virginia. As for minority elected officials, African American candidates have continued to make significant gains, but as in 1975, Congress found that progress remained uneven. In 1975 Congress reported that no blacks held statewide office in seven covered states and that the number of black state legislators in covered states fell far short of proportional representation. Likewise, in 2006 Congress found that African American candidates had yet to win statewide office in Louisiana, Mississippi, and South Carolina, and that in six covered states where African Americans constituted 35% of the population, they accounted for only 21% of state legislators. As to the third

City of Rome

factor, although section 5 objection rates have fallen since 1975, the rate has always been low and the Attorney General continues to interpose large numbers of objections — in fact, more since 1982 than before.

The 2006 legislative record contains far more than the statistical evidence considered sufficient in

City of Rome .

Most important, it includes extensive contemporary evidence of intentional discrimination. During the two decades from 1980 to 2000, the At

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