# Laroque v. Holder

> District Court, District of Columbia · December 22, 2011 · 831 F. Supp. 2d 183

URL: https://www.frixlaw.com/law-library/cases/2658666

## Case

- **Full name:** Stephen LaROQUE, Et Al., Plaintiffs, v. Eric H. HOLDER, Jr., in His Official Capacity as Attorney General of the United States, Defendant
- **Court:** District Court, District of Columbia
- **Decided:** December 22, 2011
- **Citations:** 831 F. Supp. 2d 183; 2011 U.S. Dist. LEXIS 147064; 2011 WL 6413850
- **Precedential status:** Published
- **Opinion:** Opinion by Bates
- **Judges:** Judge John D. Bates
- **Nature of suit:** Civil
- **Cited by:** 2 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

STEPHEN LAROQUE, et al.

Plaintiffs,
v. Civil Action No. 10-0561 (JDB)
ERIC H. HOLDER, Jr., in his official
capacity as Attorney General of the United
States,

Defendant.

MEMORANDUM OPINION

Plaintiffs, four private citizens and a private membership association, bring a facial

challenge to the constitutionality of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §

1973c, and the 2006 amendments to Section 5, 42 U.S.C. § 1973c(b)-(d). Section 5, as amended,

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(a).

Plaintiffs are residents of Kinston, North Carolina. In November 2008, Kinston voters

adopted a referendum that would have replaced the city's current partisan electoral system with a

nonpartisan system, in which anyone could run for local office and no candidate would be

affiliated with any political party on the ballot. See Compl. ¶¶ 1, 14-15. Because Kinston is a

covered jurisdiction under Section 5, it submitted its proposed voting change to the Attorney

General for "preclearance" (i.e., approval) under Section 5. The Attorney General declined to

1
preclear the referendum on the ground that "elimination of party affiliation on the ballot will

likely reduce the ability of blacks to elect candidates of choice." Id. ¶ 19. Kinston did not seek

administrative reconsideration of the Attorney General's objection, nor did it seek a declaratory

judgment from this Court authorizing the proposed electoral change. In April 2010, however,

plaintiffs, proponents of the nonpartisan-election referendum, filed this action. Plaintiffs argue

that Section 5, as reauthorized and as amended in 2006, exceeds Congress's enforcement

authority under the Fourteenth and Fifteenth Amendments (Count I) and that the 2006

amendments to Section 5 violate the nondiscrimination guarantees of the Fifth, Fourteenth and

Fifteenth Amendments (Count II). See id. ¶¶ 1, 33-34, 36-37.

On December 20, 2010, this Court granted defendant's Motion to Dismiss [Docket Entry

11] on the ground that plaintiffs lacked standing to bring their claims. See LaRoque v. Holder,

755 F. Supp. 2d 156 (D.D.C. 2010) ("LaRoque I"). On July 8, 2011, the D.C. Circuit reversed,

concluding that plaintiffs had standing to bring Count I and directing this Court to consider the

merits of that claim. LaRoque v. Holder, 650 F.3d 777, 793, 796 (D.C. Cir. 2011) ("LaRoque

II"). The D.C. Circuit also directed this Court to consider whether plaintiffs had standing to

bring Count II, and, if so, to resolve the merits of that claim. Id. at 795-96. Shortly after the

D.C. Circuit's decision, this Court decided another challenge to Section 5 brought by Shelby

County, Alabama, in an opinion that involved some of the same issues raised here. Shelby

Cnty., Ala. v. Holder, --- F. Supp. 2d ---, No. 10-651, 2011 WL 4375001 (D.D.C. Sept. 21,

2011). This Court concluded in Shelby County that Congress did not exceed its enforcement

powers in reauthorizing Section 5's preclearance procedure in 2006. That decision resolves part

of plaintiffs' Count I claim here.

2
Two of plaintiffs' remaining contentions, however, raise significant issues that have not

been addressed in any other decision on Section 5 and the Voting Rights Act. These claims

revolve around three amendments to Section 5 that Congress enacted in 2006. 42 U.S.C. §

1973c(b)-(d). The three amendments made two substantive changes to the standard applied in

deciding whether a voting practice or procedure should be precleared under Section 5. Plaintiffs

contend that the 2006 amendments exceed Congress's enforcement powers under the Fourteenth

and Fifteenth Amendments -- an argument no other challenger to the reauthorization of Section 5

has raised. Plaintiffs also contend that the amendments violate the equal protection component

of the Due Process Clause of the Fifth Amendment, the federal government's equivalent of the

Equal Protection Clause of the Fourteenth Amendment. This appears to be the first facial

challenge to a portion of Section 5 under equal protection principles. It is perhaps startling that

plaintiffs claim that Section 5, a law "[p]raised by some as the centerpiece of the most effective

civil rights legislation ever enacted," is actually racially discriminatory. See Shelby County,

2011 WL 4375001, at *1. Nonetheless, plaintiffs argue that Congress, in its effort to counteract

years of discrimination against minority voters, has overreached and harmed the interests of

white voters like plaintiffs.

These two challenges call for different analyses and implicate different sets of caselaw,

but both, at bottom, ask how urgent the need for Congressional legislation was in 2006 and how

well Congress crafted the challenged legislation. Guided by the abundant Congressional record

and the Supreme Court's caselaw on Congress's enforcement powers and equal protection

principles, this Court concludes that the 2006 amendments to Section 5 are a careful solution to a

vitally important problem. It therefore holds that the amendments do not violate the Constitution

3
and that plaintiffs' facial challenges must be denied.

BACKGROUND

I. History of the Voting Rights Act

The history of the Voting Rights Act, and of Section 5 in particular, was discussed at

length in this Court's opinion in Shelby County. 2011 WL 4375001, at *2-15. That history need

not be repeated in full here, but a few important points bear emphasis. The Voting Rights Act

("the Act" or "the VRA") "was designed by Congress to banish the blight of racial discrimination

in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). The Act's core 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. Section 2 and many other provisions of the Voting Rights Act are permanent and apply

nationwide.

In addition to the permanent, nationwide provisions, Sections 4(b) and 5 of Act impose

additional requirements on certain "covered" jurisdictions. Section 4(b) determines which

jurisdictions qualify as "covered." 42 U.S.C. § 1973b(b). Section 5 provides that 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." Nw. Austin Mun. Util. Dist. No.

One v. Holder, 129 S. Ct. 2504, 2509 (2009) ("Nw. Austin II"); see 42 U.S.C. § 1973c(a).

"Preclearance" under Section 5 will only be granted if a jurisdiction can show that its proposed

4
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 "shift[s] the advantage of time and inertia from the perpetrators of the evil

to its victims," Katzenbach, 383 U.S. at 328, by requiring covered jurisdictions to show that

changes are not discriminatory before they are enacted.

Section 5 was originally scheduled to sunset after five years, but Congress reauthorized it

in 1970 (for five years), 1975 (for seven years), 1982 (for twenty-five years), and 2006 (for

twenty-five years). Nw. Austin II, 129 S. Ct. at 2510. During the 2006 reauthorization,

Congress enacted three amendments to Section 5 that made two substantive changes to the scope

of the preclearance provision. Because of the importance of those changes to this litigation, the

portion of the Shelby County opinion describing the 2006 amendments is repeated in full here.

In the amendment codified at 42 U.S.C. § 1973c(c), Congress clarified its intent with

respect to the meaning of the word "purpose" in Section 5 in response to the Supreme Court's

decision in Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) ("Bossier II"). Section 5,

by its terms, only allows a voting change to be precleared if 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."

See 42 U.S.C. § 1973c(a). Prior to Bossier II, this provision was interpreted to bar preclearance

of voting changes that either (1) were enacted with a discriminatory purpose; or (2) had a

discriminatory, retrogressive effect -- i.e., changes that worsened the position of minority voters

relative to the status quo. See Bossier II, 528 U.S. at 324 (explaining that a redistricting plan

only has a prohibited discriminatory "effect" under Section 5 if it is retrogressive); Beer v.

United States, 425 U.S. 130, 141 (1976) (noting that "the purpose of s[ection] 5 has always been

5
to insure that no voting-procedure changes would be made that would lead to a retrogression in

the position of racial minorities with respect to their effective exercise of the electoral

franchise"). In Bossier II, however, the Supreme Court -- for the first time -- held that the

"purpose" prong of Section 5 only prohibits electoral changes that are enacted with a

discriminatory and retrogressive purpose. See 528 U.S. at 341. In other words, after Bossier II,

a redistricting plan that was passed for purely discriminatory reasons (such as to purposefully

avoid the creation of a new majority-minority district), but that was not intended to make

minority voters any worse off than they had been under the preexisting plan (which, say, had no

majority-minority districts), would not run afoul of Section 5's "purpose" prong. See id.

(holding that Section 5 "does not prohibit preclearance of a redistricting plan with a

discriminatory but nonretrogressive purpose").

Bossier II thus had the effect of reading the "purpose" prong "almost entirely out of

Section 5." See House Hearing, 109th Cong. 12 (Nov. 1, 2005) (prepared statement of Mark A.

Posner).1 As was the case prior to Bossier II, if a jurisdiction enacted an electoral change that

reduced the ability of minority voters to elect candidates of their choice, the change would be

denied preclearance under Section 5's "effects" prong (because it would have a retrogressive

effect). Under Bossier II, then, the "purpose" prong would only serve as an independent bar to

discriminatory voting changes where a jurisdiction "intend[ed] to cause retrogression, but then,

somehow, messe[d] up and enact[ed] a voting change that [did] not actually cause retrogression

to occur (the so-called 'incompetent retrogressor')." Id.

1
For readability, the Court will use this short form for the many legislative hearings
cited throughout this opinion. An appendix to the opinion provides the full citation for each
hearing, along with information on where to find electronic copies of the hearings.

6
In 2006, the House Judiciary Committee explained that Bossier II's limitation of the

"purpose" prong had been inconsistent with Congress's intent that Section 5 prevent not only

purposefully retrogressive discriminatory voting changes, but also those "[v]oting changes that

'purposefully' keep minority groups 'in their place.'" See H.R. Rep. No. 109-478, at 68.

Accordingly, as part of the 2006 Amendments, Congress restored the pre-Bossier II "purpose"

standard by adding a provision to the statute that defined "purpose" in Section 5 to mean "any

discriminatory purpose." See Pub. L. No. 109-246, § 5(c), 120 Stat. 577, 581 (2006); 42 U.S.C.

§ 1973c(c) (emphasis added).

In a similar vein, Congress also responded to the Supreme Court's decision in Georgia v.

Ashcroft, 539 U.S. 461 (2003), which had altered the preexisting standard for determining

whether a voting change had a prohibited retrogressive effect under Section 5's "effects" prong.

Prior to Georgia v. Ashcroft, the standard for assessing whether an electoral change violated the

Section 5 "effects" test was "'whether the ability of minority groups to participate in the political

process and to elect their choices to office is . . . diminished . . . by the change affecting voting.'"

Beer, 425 U.S. at 141(quoting H.R. Rep. No. 94-196, at 60) (emphasis omitted). In Georgia v.

Ashcroft, however, the Court endorsed a less rigid, "totality of the circumstances" analysis for

examining retrogressive effects, explaining that "any assessment of the retrogression of a

minority group's effective exercise of the electoral franchise depends on an examination of all

the relevant circumstances, such as the ability of minority voters to elect their candidate of

choice, the extent of the minority group's opportunity to participate in the political process, and

the feasibility of creating a nonretrogressive plan." 539 U.S. at 479. In reauthorizing the Act in

2006, Congress expressed concern that the Georgia v. Ashcroft framework had introduced

7
"substantial uncertainty" into the administration of a statute that was "specifically intended to

block persistent and shifting efforts to limit the effectiveness of minority political participation."

See H.R. Rep. No. 109-478, at 70 (internal quotation marks and citation omitted). Hence, in an

attempt to restore the simpler, "ability to elect" analysis articulated in Beer, see id. at 71,

Congress added new language to the Act, stating that all voting changes that diminish the ability

of minorities "to elect their preferred candidates of choice" should be denied preclearance under

Section 5. See Pub. L. No. 109-246, §§ 5(b), (d), 120 Stat. at 581; 42 U.S.C. §§ 1973c(b), (d).

II. Challenges to Section 5

Section 4(b)'s coverage formula and Section 5's preclearance regime have been

repeatedly upheld against constitutional challenges. Katzenbach, 383 U.S. at 337 (upholding

Section 5 after 1965 authorization); City of Rome v. United States, 446 U.S. 156, 183 (1980)

(upholding Section 5 after 1975 reauthorization); Lopez v. Monterey Cnty., 525 U.S. 266, 282-

83 (1999) (upholding Section 5 after 1982 reauthorization in narrow as-applied challenge). The

2006 reauthorization drew another set of constitutional challenges. Only days after the

reauthorization, a municipal utility district in Texas brought suit seeking to bail out of the Act's

requirements or 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.

Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 230 (D.D.C. 2008) ("Nw. Austin I"),

rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009) (internal quotation marks and citation

omitted); see also LaRoque I, 755 F. Supp. 2d at 161 n.2 (describing procedure by which a

jurisdiction may "bail out" of Section 5 and terminate its obligation to seek preclearance for

election changes). A three-judge panel of this court found that the utility district was not eligible

8
for bailout and that Section 5 was constitutional. Nw. Austin I, 573 F. Supp. 2d at 283. The

utility district appealed, and the Supreme Court reversed. Nw. Austin II, 129 S. Ct. at 2517.

The Supreme Court avoided the constitutional question by finding that the utility district

was statutorily eligible for bailout. Id. Although the Court therefore did not decide the

constitutional question, it noted that "the Act imposes current burdens and must be justified by

current needs." Id. at 2512. In light of the unquestioned improvement in minority voter

registration and turnout since the Act's passage in 1965, the Court warned that "[t]he Act's

preclearance requirements and its coverage formula raise serious constitutional questions." Id. at

2513.

Ten months after the Supreme Court's decision in Northwest Austin, Shelby County,

Alabama filed a lawsuit challenging Section 5 on its face as beyond Congress's powers to

enforce the Fourteenth and Fifteenth Amendments. 2011 WL 4375001, at *16-18. This Court

upheld the constitutionality of Section 5, see id. at *80, and that decision is currently on appeal

to the D.C. Circuit.

III. Kinston, North Carolina

The plaintiffs in this case filed their complaint on April 7, 2010, a few weeks before

Shelby County was filed. See Compl. at 13. As described in this Court's previous opinion in

this case, see LaRoque I, 755 F. Supp. 2d at 156, the present action stems from an attempt by

voters in the city of Kinston, North Carolina to alter the partisan nature of Kinston's local

election system. See Compl. ¶ 1. Currently, a prospective candidate for political office in

Kinston must either be the winner of a party primary or an unaffiliated candidate who obtains a

sufficient number of signatures to have his or her name placed on the ballot. See id. In

9
November 2008, Kinston voters -- by an almost 2 to 1 margin -- passed a referendum that would

have amended the Kinston city charter to allow for nonpartisan elections, under which any

individual would be allowed to run for local political office and no candidate would be affiliated

with any political party on the ballot. See id. ¶¶ 1, 14-15.

Kinston is a political subdivision of Lenoir County, North Carolina, which is a covered

jurisdiction, and hence Kinston, too, is subject to the provisions of Section 5. See Compl. ¶ 16;

28 C.F.R. pt. 51, 30 Fed. Reg. 9897 (Aug. 7, 1965) (Section 5 coverage determination for Lenoir

County, North Carolina); 28 C.F.R. § 51.6 (noting that "all political subunits within a covered

jurisdiction . . . are subject to the requirement of section 5"). Rather than seek bailout under

Section 4(a) of the Voting Rights Act, or a declaratory judgment from a three-judge panel of this

Court authorizing its proposed electoral change, Kinston submitted the proposed change to the

Attorney General for preclearance. See Compl. ¶ 16. On August 17, 2009, the Attorney General

issued a letter objecting to Kinston's proposed system of nonpartisan elections, on the ground

that the "elimination of party affiliation on the ballot will likely reduce the ability of blacks to

elect candidates of choice." Def.'s Mem. in Opp. to Plfs.' Mot. for Summ. J. ("Def.'s Opp.")

[Docket Entry 55], Statement of Facts, Ex. 2, at 2 (objection letter). As the Attorney General

explained, minority-preferred candidates in Kinston tend to be Democrats. Id. Statistical

analysis showed that such minority-preferred candidates needed a small amount of white

crossover voting to be elected, but that most white voters -- even Democrats -- would vote for a

white Republican over a black Democrat. Id. Some white Democrats, however, "maintain[ed]

strong party allegiance and w[ould] continue to vote along party lines, regardless of the race of

the candidate," often by voting a straight Democratic ticket. Id. The Attorney General found

10
that switching to a nonpartisan election system would eliminate minority-preferred candidates'

ability to "appeal to [Democratic] party loyalty" and to benefit from straight-ticket voting. Id.

Hence, "[r]emoving the partisan cue in municipal elections will, in all likelihood, eliminate the

single factor that allows black candidates to be elected to office." Id. The Attorney General

therefore refused to preclear the referendum. Id. at 3. On November 16, 2009, the Kinston City

Council voted not to seek administrative reconsideration of the Attorney General's objection or a

de novo review by this Court of Kinston's proposed change to nonpartisan elections. See Def.'s

Mem. in Supp. of Mot. to Dismiss [Docket 11], Ex. 1, Kinston City Council Meeting Minutes, at

19.

Plaintiffs then filed this suit against the Attorney General. Plaintiffs are four2 Kinston

residents who are registered voters there, as well as a private membership association, the

Kinston Citizens for Non-Partisan Voting ("KCNV"), which is "dedicated to eliminating the use

of partisan affiliation in Kinston municipal elections." Compl. ¶¶ 2-7. The citizen-plaintiffs all

allege that they either campaigned or voted for the November 2008 referendum. See id. ¶¶ 2-6.

Two of the five claimed that they intended to run for election to the Kinston City Council in

November 2011; one of those later dropped out of the race. Id. ¶¶ 3-4; Plfs.' Notice of Filing at 1

[Docket Entry 57]. The remaining candidate, John Nix, alleges that as a registered Republican

voter running for office in a predominantly Democratic jurisdiction he has "a direct interest" in

running "on a ballot where he is unaffiliated with any party, against opponents similarly

unaffiliated, and without the preliminary need to either run in a party primary or obtain sufficient

signatures to obtain access to the ballot as a candidate." Compl. ¶ 3. All plaintiffs allege that the

2
The complaint lists five citizen plaintiffs, but plaintiff Lee Raynor died on February 20,
2011. Plfs.' Notice of Filing at 1 [Docket Entry 57].

11
Attorney General's "denial of Section 5 preclearance . . . completely nullified all of Plaintiffs'

efforts in support of the referendum." Id. ¶ 29. Plaintiffs further allege that Congress exceeded

its enforcement power in reauthorizing Section 5; that Congress exceeded its enforcement power

in enacting the amendments to Section 5 in 2006; and that the 2006 amendments violate the

equal protection component of the Due Process Clause of the Fifth Amendment. Id. ¶¶ 1, 33-34,

36-37. Although plaintiffs' complaint clearly raised as-applied claims, they insisted during the

first motions hearing in this case that they were raising only facial challenges to the statute. See

LaRoque I, 755 F. Supp. 2d at 162-63; see also LaRoque II, 650 F.3d at 783.

Six African-American Kinston residents, along with the North Carolina State Conference

of Branches of the National Association for the Advancement of Colored People, joined the case

in August 2010 as intervenors in support of the Attorney General. See Order Granting Tyson, et

al.'s Mot. to Intervene [Docket Entry 24]. On December 16, 2010, this Court granted the

government's Motion to Dismiss, and on December 20, 2010, the Court issued a memorandum

order explaining that plaintiffs lacked standing to bring this challenge. [Docket Entries 41, 42.]

The Court made separate findings as to the referendum proponents, prospective candidates, and

voters. First, the Court found that the weight of caselaw holds that referendum proponents do

not suffer a concrete injury that confers standing to sue when a later action allegedly nullifies the

effect of their ballot initiative. LaRoque I, 759 F. Supp. 2d at 169-73. Second, the Court found

that whether the two proposed candidates would actually run was too speculative to support

standing. Id. at 173-75. It further found that the prospective candidates had no legally protected

interest in a nonpartisan electoral system because they did not allege that partisan electoral

systems were illegal. Id. at 175-80. Third, the Court found that the voters had alleged too

12
general an injury to their associational rights to support standing, and that they were not

prevented from supporting the candidates of their choice. Id. at 180-82. Finally, the Court found

that holding Section 5 unconstitutional would not revive the Kinston referendum, and that

plaintiffs' claims were therefore not redressable. Id. at 182-83.

Plaintiffs appealed and the D.C. Circuit reversed. Treating plaintiffs' claims as purely

facial, the D.C. Circuit addressed only whether Nix, the prospective candidate, had standing.

650 F.3d at 783. As relevant here, the D.C. Circuit examined the record and found that it was

not unduly speculative that Nix would run for office. Id. at 788-89. The D.C. Circuit further

found that the passage of the referendum had granted Nix a legally protected interest in a

nonpartisan election system. Id. at 786. Finally, the court explained that if Section 5 were

unconstitutional, the Attorney General's actions pursuit to it would be ultra vires and void. Id. at

790-91. The Attorney General's objection to the referendum would therefore be void, and the

referendum would go into effect as if the objection had never happened. Id. Hence, the D.C.

Circuit concluded that Nix had standing to pursue the Count I claim that the reauthorization of

Section 5 exceeded Congress's enforcement powers. Id. at 792.

The D.C. Circuit declined, however, to decide whether any plaintiff had standing to bring

Count II. Id. at 793-96. The court explained that Count II raised complex standing questions

that had not been fully briefed in either the district court or the court of appeals. Id. In

particular, Count II challenged only the amendments to Section 5, and it was unclear whether a

finding that the amendments were unconstitutional would revive the referendum. Id. at 794-95.

The court of appeals further questioned whether, given that plaintiffs' equal protection challenge

was only facial, plaintiffs had "met the requirement that litigants claiming injury from a racial

13
classification establish that they 'personally [have been] denied equal treatment by the

challenged discriminatory conduct.'" Id. at 795 (quoting United States v. Hays, 515 U.S. 737,

743-44 (1995)). The court stated that

[w]ithout meaningful briefing on these issues, we are hesitant to decide plaintiffs'
count-two standing. Of course, we could ask for additional briefing. But that
would take time, and as plaintiffs' repeated requests for us to expedite this
litigation so that it can be resolved before the November 2011 election indicate,
time is of the essence. Given this, and given that plaintiffs themselves
characterize count two as a fallback position, see Oral Arg. Tr. at 13:2-4, 15:11-
15 (characterizing count two as an “alternative claim[]” that plaintiffs brought in
case they lose on count one), we are reluctant to consume precious time resolving
plaintiffs' standing to bring count two -- time the district court could instead
devote to considering the merits of plaintiffs' principal argument, asserted in
count one, that Congress's 2006 reauthorization of section 5 exceeded its
Fourteenth and Fifteenth Amendment enforcement powers.

650 F.3d at 796. Accordingly, the D.C. Circuit remanded to this Court to consider the merits of

Count I and whether plaintiffs had standing to pursue Count II. Id.

DISCUSSION

I. OVERVIEW

Before addressing the merits of plaintiffs' claims, the Court must address one unusual and

important issue that has arisen in this case. When this Court originally granted defendant's

Motion to Dismiss, the Court read plaintiffs' complaint as arguing that Congress had exceeded its

enforcement powers in reauthorizing Section 5 (Count I), and that the 2006 amendments to

Section 5 violated equal protection principles (Count II). That is, the Court saw Count I as

identical to the facial challenge raised in Shelby County and Northwest Austin, whereas Count II

raised a facial challenge to the amendments under a novel equal protection theory. The D.C.

Circuit's decision indicates that the court of appeals understood plaintiffs' claims the same way.

The D.C. Circuit summarized plaintiffs' claims as follows: "Count one of plaintiffs' complaint

14
contends that section 5, as reauthorized in 2006, exceeds Congress’s Fourteenth and Fifteenth

Amendment enforcement powers. Count two contends that amendments made to section 5 in

2006 erect a facially unconstitutional racial-preference scheme." LaRoque II, 650 F.3d at 780.3

The D.C. Circuit's discussion of redressability further suggests that it read Count I as a challenge

to all of Section 5 and Count II as a challenge to the amendments. In evaluating whether

plaintiffs had standing to bring Count II, the D.C. Circuit observed that it was unclear "what

would happen to the Kinston referendum and the Attorney General's decision to refuse

preclearance" if plaintiffs succeeded in having the amendments -- but not the general

preclearance regime -- declared unconstitutional. Id. at 794. By contrast, the D.C. Circuit

apparently assumed that all of Section 5 would be struck down if plaintiffs succeeded on their

Count I challenge. Compare id. at 791 with id. at 794-95.

After the remand, however, plaintiffs emphasized that their Count I claim actually had

two subparts. See Mot. Hr'g Tr. [Docket Entry 66] 5:7-20, Oct. 26, 2011. The first part --

which, for the moment, the Court will refer to as Count I-A -- claims that the reauthorization of

Section 5's preclearance regime exceeded Congress's enforcement authority under the Fourteenth

and Fifteenth Amendments. Compl. ¶¶ 33-34. Count I-A is therefore similar to the claim raised

in Northwest Austin and Shelby County. But a second part, or Count I-B, claims that the

enactment of the 2006 amendments exceeded Congress's enforcement authority even if the

general preclearance regime is constitutional. Compl. ¶ 34. This claim was not raised in either

3
See also id. at 783 ("Count one alleges that in reauthorizing Section 5, Congress
exceeded its power to enforce the Fourteenth and Fifteenth amendments because the statute 'is
not a rational, congruent, or proportional means to enforce [those Amendments']
nondiscrimination requirements.' Count two contends that as a result of the amendments
Congress made to section 5 in 2006, the section 'violates the nondiscrimination requirements of
the Fifth, Fourteenth, and Fifteenth Amendments.'" (quoting Compl. ¶¶ 34, 36)).

15
Northwest Austin or Shelby County, and was not identified by either this Court or the D.C.

Circuit in the prior decisions in this case. Finally, Count II claims that the 2006 amendments to

Section 5 violate the equal protection component of the Due Process Clause of the Fifth

Amendment, the federal government's equivalent of the Equal Protection Clause. Compl. ¶¶ 36-

37.

The Court has reviewed plaintiffs' complaint, summary judgment motion, and opposition

to the government's summary judgment motion. [Docket Entries 1, 23, 59]. The Court concludes

that plaintiffs have in fact raised their two-part claim in Count I throughout this litigation

(although they have not always been particularly clear about the nature of the claim), despite the

fact that this Court and the D.C. Circuit did not focus on Count I-B. The existence of Count I-B,

however, leaves this Court in an odd position in two ways.

First, this Court, along with the three-judge court that decided Northwest Austin, has

already spent hundreds of pages opining that the reauthorization of the amended Section 5 was

within Congress's enforcement powers. Although neither the Northwest Austin opinion nor the

Shelby County opinion focused on the amendments to Section 5, both of those opinions

implicitly found that the amendments -- an integral part of Section 5 as enacted in 2006 --

represented a congruent and proportional, or rational, response to the problem of discrimination

in voting. This Court will not revisit its conclusion in Shelby County that long-standing, state-

sponsored, intentional discrimination in voting justified the reauthorization of Section 5's general

preclearance procedure. Count I-A is therefore denied for the same reasons given in Shelby

County. But the Court will not rely on its past implicit finding that the 2006 amendments

represent a congruent and proportional response to the problem of voting discrimination. This

16
Court therefore must decide whether specific evidence in the record before Congress justified the

enactment of the 2006 amendments.

The second odd effect of this revised understanding of plaintiffs' claims is that the Court

must reconsider the issue of Count I standing. Count I-B raises distinct standing issues from

Count I-A; indeed, for standing purposes, Count I-B is more like Count II than Count I-A.

Although the D.C. Circuit's opinion directed this Court to address the merits of Count I, the D.C.

Circuit apparently did not envision a Count I decision addressing the constitutionality of only the

amendments. And finding only the amendments unconstitutional under Count I would raise

quite different standing issues from finding all of Section 5 unconstitutional, as the D.C. Circuit

pointed out in its discussion of Count II. See LaRoque II, 650 F.3d at 794-95. Hence, although

the D.C. Circuit's mandate directs this Court to consider the merits of Count I, the opinion as a

whole leads this Court to believe that it must first address whether plaintiffs have standing on the

aspect of their Count I claim that challenges only the amendments.

This opinion will therefore proceed as follows. The Court will begin by discussing

whether plaintiffs have standing to bring Count I-B, their claim that the enactment of the

amendments to Section 5 in 2006 exceeded Congress's enforcement powers. The Court will also

consider whether Count I-B is unripe or moot. The Court will then address the merits of Count

I-B, determining whether the amendments are proper enforcement legislation under the three-

part test laid out in City of Boerne v. Flores, 521 U.S. 507, 520 (1997). Finally, the Court will

turn to Count II, plaintiffs' claim that the amendments violate the equal protection principles of

the Fifth Amendment. The Court will first consider whether plaintiffs have standing to bring the

claim, then whether the claim succeeds on the merits.

17
II. COUNT I

A. Standing

Article III of the U.S. Constitution "limits the 'judicial power' of the United States to the

resolution of 'cases' and 'controversies,'" Valley Forge Christian Coll. v. Am. United for

Separation of Church & State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing

serves to identify those "'Cases' and 'Controversies' that are of the justiciable sort referred to in

Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "As an aspect of

justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in

the outcome of the controversy' as to warrant invocation of federal-court jurisdiction and to

justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490,

498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)); see also Sierra Club v.

Morton, 405 U.S. 727, 731-32 (1972).

To establish the "irreducible constitutional minimum of standing," a plaintiff must allege

(1) an "injury in fact," defined as "an invasion of a legally protected interest which 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, 504 U.S. at 560-61 (internal

quotation marks and citations omitted). In order for an injury to be "concrete and

particularized," it must "affect the plaintiff in a personal and individual way," so a plaintiff must

do more than raise "a generally available grievance about government -- claiming only harm to

his and every citizen's interest in proper application of the Constitution and laws." Id. at 561 n.1,

573.

18
The injury, causation, and redressability requirements will be discussed in turn.

Following the lead of the court of appeals, this Court will primarily address whether candidate

John Nix has standing to bring this claim. LaRoque II, 650 F.3d at 792.

1. Injury

The D.C. Circuit found that Nix was injured by the operation of Section 5's general

preclearance procedure -- and the resultant suspension of the nonpartisan-election referendum --

in two ways. First, in a system of nonpartisan elections, Nix "could get his name on the general-

election ballot more cheaply and easily." LaRoque II, 650 F.3d at 783. Under Kinston's current

regime, he must either win a partisan primary or collect signatures from 4% of qualified voters to

be placed on the ballot; under a nonpartisan regime, he would only need to file a candidacy

notice and pay a filing fee. Id. at 783-84. Second, Nix's chances of winning the election would

"substantially improve" if the referendum were precleared and nonpartisan elections went into

effect, because "Democratic candidates would lose the benefit of party-line straight-ticket voting

and other strategic advantages stemming from their overwhelming registered-voter advantage."

Id. at 784 (internal quotation marks and citation omitted). As the D.C. Circuit explained, Nix

has a legally protected interest in such competitive advantages because the nonpartisan election

regime would have been enacted in Kinston but for Section 5, "which he claims is

unconstitutional and thus void." Id. at 786.

The Court finds that Nix's injury is identical whether the challenge is to the amendments

or to the preclearance procedure in general. In either case, Nix alleges that the suspension of the

referendum denied him competitive advantages to which he had a legally protected right. The

questions of causation and redressability are more complex in a challenge to only the

19
amendments, but the question of injury is not.

2. Causation

The causation question is more difficult. In plaintiffs' general challenge to Section 5, it

was clear that the operation of the preclearance regime had caused the suspension of the

referendum, and hence had caused Nix's injury. In the challenge to the amendments, however,

defendant makes several arguments as to why the amendments did not cause the suspension of

the referendum, and hence did not cause Nix's competitive injuries.

Defendant argues first that the Department of Justice did not rely at all on subsection (c)

-- the subsection that provides that "[t]he term 'purpose' in subsections (a) and (b) of this section

shall include any discriminatory purpose" -- in refusing to preclear the referendum. Def.'s Opp.

at 24. The Attorney General's objection letter, which focuses entirely on retrogressive effect and

never mentions discriminatory purpose, supports defendant's arguments. See Def.'s Opp.,

Statement of Facts, Ex. 2 (objection letter). There is no indication in the record that the

Department of Justice has ever claimed that a racially discriminatory purpose motivated the

referendum; indeed, the objection letter concedes that "the motivating factor for this change may

be partisan." Id. Nor have plaintiffs offered any reason to believe that the Attorney General

relied on subsection (c) in denying preclearance to the referendum. Accordingly, the Court

agrees with the government that subsection (c) did not cause plaintiffs' injuries, and plaintiffs

therefore do not have standing to challenge that provision.

Subsections (b) and (d), however, govern the "effects" prong of Section 5, and the

Attorney General denied preclearance because of the referendum's retrogressive effects. See

Def.'s Opp., Statement of Facts, Ex. 2 (objection letter). The government nonetheless contends

20
that subsections (b) and (d) did not cause plaintiffs' injuries because their application is limited to

the districting context. Def.'s Opp. at 24-25. Based on the text of the statute, the Court

disagrees. Subsection (b) provides that: "Any voting qualification or prerequisite to voting, or

standard, practice, or procedure with respect to voting that has the purpose of or will have the

effect of diminishing the ability of any citizens of the United States on account of race or color . .

. to elect their preferred candidates of choice denies or abridges the right to vote within the

meaning of subsection (a) of this section." 42 U.S.C. § 1973c(b). Subsection (d) explains that

"[t]he purpose of subsection (b) of this section is to protect the ability of such citizens to elect

their preferred candidates of choice." 42 U.S.C. § 1973c(d). Hence, by their terms, both

subsections apply to "[a]ny voting qualification or prerequisite to voting, or standard, practice, or

procedure with respect to voting," and nothing in the text limits their application to districting.

The fact that subsections (b) and (d) were meant to overrule Ashcroft, a case about a

districting plan, does not mean that their application is limited to districting. Indeed, although

the specific considerations outlined in Ashcroft apply most naturally in the districting context, its

broader holding -- that a totality of the circumstances test rather than a singular focus on

minorities' ability to elect governs preclearance of voting changes -- could be and was applied to

other types of voting procedure changes, including one quite similar to the referendum at issue

here. In 2004, the Charleston County Legislative Delegation to the South Carolina General

Assembly attempted to change the nonpartisan elections for the Board of Trustees of the

Charleston County School District to partisan elections. See Letter from R. Alexander Acosta,

Assistant Attorney General, to C. Havird Jones, Jr., Senior Assistant Attorney General (Feb. 26,

2004). The Attorney General denied preclearance, finding that the change would diminish

21
minorities' ability to elect their candidates of choice. Id. at 2. In doing so, he specifically noted

that he was applying a "totality of the circumstances" test under Ashcroft, and he considered,

among other things, whether minority-preferred elected officials supported the change. Id. at 1-

2. Hence, Ashcroft’s broad holding did apply to changes like those at issue here, and the

amendments partially overruling it do as well. Indeed, a comparison of the objection letter in

this case and the objection letter in the Charleston County School District case strongly suggests

that the Attorney General applied a different standard here than he did there. Compare id. with

Def.'s Opp., Statement of Facts, Ex. 2 (objection letter).

This does not end the causation inquiry, however, because the question remains whether

the Attorney General would have come to the same ultimate conclusion under the

Ashcroft standard. If so, the amendments did not cause plaintiffs' injury. Neither party has made

any serious effort to answer or analyze that question. Under the Supreme Court's decision in

Federal Election Commission v. Akins, 524 U.S. 11 (1998), however, the Court believes that

plaintiffs succeed on the causation prong. In Akins, plaintiffs challenged the Federal Election

Commission's ("FEC") determination that the American Israel Public Affairs Committee

("AIPAC") did not have to follow certain registration and disclosure rules under the Federal

Election Campaign Act ("FECA") because AIPAC's "major purpose" was not nominating or

electing political candidates. Id. at 14-18. Plaintiffs sued the FEC, arguing that the "major

purpose" test misinterpreted FECA. The Supreme Court agreed that plaintiffs' inability to obtain

information that would otherwise have been disclosed was a concrete, particularized injury. Id.

at 20-21. The FEC argued, however, that plaintiffs did not have standing because FEC's alleged

misinterpretation of FECA might not have caused their injury, given that the FEC could have --

22
and, under the evidence in the record, likely would have -- exercised its discretion to exempt

AIPAC from the FECA's requirements. See id. at 25. The Supreme Court nonetheless held that

plaintiffs had standing. It explained:

[W]e cannot know that the FEC would have exercised its prosecutorial discretion
in this way. Agencies often have discretion about whether or not to take a
particular action. Yet those adversely affected by a discretionary agency decision
generally have standing to complain that the agency based its decision upon an
improper legal ground. If a reviewing court agrees that the agency misinterpreted
the law, it will set aside the agency's action and remand the case -- even though
the agency (like a new jury after a mistrial) might later, in the exercise of its
lawful discretion, reach the same result for a different reason. Thus respondents'
"injury in fact" is "fairly traceable" to the FEC's decision not to issue its
complaint, even though the FEC might reach the same result exercising its
discretionary powers lawfully.

Id. at 25 (internal citations omitted).

Here, too, plaintiffs claim that the Attorney General employed the wrong legal standard -

- namely, the allegedly unconstitutional preclearance standard in subsections (b) and (d) rather

than the test laid out in Ashcroft. The fact that the Attorney General could have reached the

same result under the correct standard, as the FEC could have "reach[ed] the same result

exercising its discretionary powers lawfully," does not negate causation under Akins. This case

is not exactly like Akins – among other things, the Attorney General's "discretion" to make

preclearance decisions is not as broad as the FEC's authority was under FECA – but the Court

sees no reason that those differences dictate a different result here. Accordingly, under Akins,

the Court holds that plaintiffs have established that subsections (b) and (d) caused their injury.

3. Redressability

Plaintiffs offer various arguments for why their injury -- the postponement of the

referendum -- will be redressed if this Court finds the 2006 amendments unconstitutional. Their

23
primary argument is that subsections (b), (c), and (d) cannot be severed from subsection (a),

which contains the core preclearance provision. Consol. Reply Mem. in Supp. of Plfs.' Mot. for

Summ. J. & in Opp. to Def.'s and Intervenors' Mot. for Summ. J. & Intervenors' Renewed Mot.

to Dismiss ("Plfs.' Opp.") [Docket Entry 59] at 39-44. Hence, according to plaintiffs' theory,

finding that the amendments are unconstitutional would mean that all of Section 5 must be struck

as unconstitutional. Id. And, as the D.C. Circuit explained, striking Section 5 as

unconstitutional would revive the referendum. This is so because if "Section 5 is

unconstitutional, the Attorney General's actions pursuant to that unconstitutional statute would

be void." LaRoque II, 650 F.3d at 791.

Contrary to plaintiffs' argument, the Court agrees with the government that the

amendments are severable from subsection (a)'s general preclearance provision. When possible,

courts sever unconstitutional portions of a statute rather than striking the whole statute. Free

Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010). Severance is

possible when the remaining portion of the statue is "(1) constitutionally valid, (2) capable of

functioning independently, and (3) 'consistent with Congress' basic objectives in enacting the

statute.'" Def.'s Opp. at 26 (quoting United States v. Booker, 543 U.S. 220, 258-259 (2005)).

"The presence of a severability clause, which expressly sets forth congressional intent that a

statute stand in the event one of its provisions is struck down, makes it extremely difficult for a

party to demonstrate inseverability." Consumer Energy Council v. Fed. Energy Regulatory

Comm'n, 673 F.2d 425, 441 (D.C. Cir. 1982).

All three conditions are met here. Subsection (a) is constitutionally valid and capable of

functioning without the 2006 amendments. Other than one purely stylistic change, subsection

24
(a) is the version of Section 5 that was in effect before the 2006 amendments, and that version

was upheld against numerous constitutional challenges. See Katzenbach, 383 U.S. at 337; City

of Rome, 446 U.S. at 183; Lopez, 525 U.S. at 282-83; see generally Shelby County, 2011 WL

4375001.

The presence of a severability clause demonstrates that severing the amendments would

be "consistent with Congress' basic objectives in enacting the statute." The Voting Rights Act's

severability clause provides that

[i]f any provision of [the Voting Rights Act] or the application thereof to any
person or circumstances is held invalid, the remainder of [the Voting Rights Act]
and the application of the provision to other persons not similarly situated or to
other circumstances shall not be affected thereby.

42 U.S.C. § 1973p. Accordingly, it was Congress's considered judgment that Section 5 without

the Bossier II and Ashcroft "fixes" was better than no Section 5 at all. Plaintiffs argue that the

severability clause has been part of the Voting Rights Act since 1965, and thus cannot speak to

the 2006 Congress's intent. But this Court must presume that Congress was aware of the clause

when it reauthorized and amended Section 5, and that it affirmatively intended the severability

clause to apply to the amendments. See Koog v. United States, 79 F.3d 452, 463 n.12 (5th Cir.

1996); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 n.8 (1987) (noting that

severability clause applies to later provisions that amend a law). Moreover, nothing in the

legislative history suggests a reason to question this presumption. Certainly, several members of

Congress made clear that they thought the Bossier II and Ashcroft fixes were important, but

there was no serious discussion of whether failing to reauthorize Section 5 at all was preferable

to reauthorizing Section 5 as construed by those cases. See Leavitt v. Jane L., 518 U.S. 137,

143-144 (1996) (statements indicating that Congress preferred complete statute do not

25
undermine case for severability because "[t]his mode of analysis, if carried out in every case,

would operate to defeat every claim of severability").

The Court therefore concludes that each of the amendments is severable from subsection

(a), the general preclearance procedure. Hence, the Court rejects plaintiffs' primary

redressability argument. The question then is whether there is any other reason that finding

subsections (b) and (d) unconstitutional would redress plaintiffs' injury. The Court finds that

there is such a reason.

First, the D.C. Circuit's opinion makes clear that the Attorney General's objection would

be nullified if the amendments were struck down as unconstitutional. The D.C. Circuit explained

that if all of Section 5 is unconstitutional, the Attorney General's actions pursuant to it would be

void. LaRoque II, 650 F.3d at 791. Similarly, if the amendments are unconstitutional, the

Attorney General's actions pursuant to them would be void. Although subsection (a) contains

the actual preclearance procedure, the Attorney General's actions were indeed made "pursuant

to" subsections (b) and (d) in addition to subsection (a), because subsections (b) and (d) now

define the key terms in subsection (a).

The question then is what would happen to the Kinston referendum if the Attorney

General's original objection were nullified, but Section 5's general preclearance procedure

remained in place. Because the D.C. Circuit considered only the situation where Section 5 was

struck down in its entirety, it did not provide guidance on this issue. Moreover, because this is a

novel situation, neither party has identified any case on point. As a matter of logic, however, it

would seem that the referendum would have to be precleared under the pre-2006 version of

Section 5 before it could go into effect. Cf. Ashcroft, 539 U.S. at 490 (remanding to district

26
court to reconsider whether districting plan could be precleared in light of standard laid out by

Supreme Court). Any other course of action would lead to the anomalous result that the Kinston

referendum -- unlike every other election law -- could go into effect without ever being

precleared. Moreover, contrary to the government's view, the Court does not believe that

Kinston would be able to make a discretionary decision not to seek such reconsideration of the

referendum. See United States' Resp. to Plfs.' Br. Regarding Suggestion of Mootness at 3-4

[Docket Entry 69]. Preclearance of the Kinston referendum under the pre-2006 version of

Section 5 would not be "reconsideration" as that term is usually used in this context. Rather, it

would be a routine action to seek preclearance of an election change that had not yet been

through the (proper) process.

Assuming that the referendum would have to be precleared under the pre-2006 standard,

the final question is whether it would, in fact, be precleared under that standard. If it is clear that

the referendum would not be precleared under any standard, plaintiffs' claims are not redressable

and they have no standing to challenge the 2006 amendments. As with the causation prong,

neither party has analyzed this issue in any detail. But, again as with the causation prong, the

Court finds this question governed by Akins. After explaining that causation was not defeated

simply because an agency that "based its decision upon an improper legal ground" could reach

the same decision on a proper legal ground, the Supreme Court disposed of the "redressability"

prong in a single sentence: "For similar reasons, the courts in this case can redress respondents'

injury in fact." 524 U.S. at 25 (internal quotation marks omitted). Here, as in Akins, the injury is

redressable because the Attorney General will have to reconsider preclearance of the referendum

under the Ashcroft standard if plaintiffs succeed, even though the Attorney General "might later,

27
in the exercise of [his] lawful discretion, reach the same result for a different reason." Id.; see

also Townes v. Jarvis, 577 F.3d 543, 546-48 (4th Cir. 2009) (relying on Akins to find that habeas

petitioner could challenge Parole Board's decision that allegedly violated Due Process and Equal

Protection Clauses, even though Board might deny parole even applying proper standard).

The Court therefore finds that Nix has standing to challenge subsections (b) and (d), but

not subsection (c).4 For the same reasons given in its first opinion in this case, see LaRoque I,

755 F. Supp. 2d at 168-73, 180-82, the Court concludes that referendum proponents do not have

standing; that the voters' allegation that their associational rights are burdened is too generalized

to support standing; and that the voters are not precluded from supporting their candidates of

choice. KCNV, however, does have standing to challenge subsections (b) and (d), because it has

established that one of its "members would otherwise have standing to sue in [his] own right"

and "the interests at stake are germane to the organization's purpose." Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).

4. Effect in this case

Finding that the plaintiffs do not have standing as to subsection (c), of course, means that

4
Plaintiffs might also have standing to challenge the amendments as part of their
challenge to the general preclearance regime (Count I-A), for which they have standing.
LaRoque II, 650 F.3d at 792. That is, plaintiffs could argue that the enactment of the general
preclearance regime exceeds Congress's enforcement power, and that the amendments are simply
an aspect of Congress's overreach in reauthorizing Section 5. This formulation of their argument
is academic as to subsections (b) and (d), but could change the outcome in subsection (c). As the
Court reads plaintiffs' papers, however, their argument is that even if the general preclearance
mechanism is constitutional, the substantive standard laid out in subsections (b) through (d) is
unconstitutional. See generally Plfs.' Opp. (devoting separate sections to Count I-A, Count I-B,
and Count II); Plfs.' Notice of Filing, Ex. 1, at 2 [Docket Entry 36] (letter to Court describing
claims). Because plaintiffs are challenging the constitutionality of the amendments separately
from the entire preclearance standard, they must establish standing for that challenge. See U.S.
Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).

28
this Court does not have jurisdiction to find that amendment constitutional or unconstitutional on

the merits. See Lujan, 504 U.S. at 559-60. However, as the D.C. Circuit explained, time is of the

essence in this case, and plaintiffs have already been through one appeal and remand. LaRoque

II, 650 F.3d at 795. Solely in order to obviate any possible need for another remand, and in the

unusual circumstances of this case, this Court will explain how it would rule on the merits of

subsection (c) if plaintiffs could establish standing on that claim. Should the D.C. Circuit

disagree with this Court's conclusion on standing, it will then be able to address the merits

immediately.

B. Ripeness

The Court declines the government's invitation to find that plaintiffs' challenge is not ripe

for review. This case is not like Texas v. United States, 523 U.S. 296 (1998), upon which the

government relies. There, the state of Texas made certain changes to its educational system that

had the potential to affect voting. Id. at 298-99. The Department of Justice found that the

specific changes at issue did not affect voting and did not require preclearance, but that "under

certain foreseeable circumstances their implementation may" require preclearance. Id. at 299.

Texas sought a declaratory judgment that Section 5 did not apply. Id. The Supreme Court found

that Texas's claim was not ripe because a long sequence of events had to occur before the

preclearance issue could arise, and it might never arise. Id. at 300. Moreover, Texas had asked

the Court to hold that it was impossible for the educational changes to affect voting, and the

Court explained that "[w]e do not have sufficient confidence in our powers of imagination to

affirm such a negative." Id. at 301. Moreover, because Texas was currently implementing the

educational changes without any impediment, the Court found that Texas would suffer no

29
hardship by deferring review until it was clear that review would be necessary. Id. at 301-02.

Here, in contrast, the Attorney General has already objected to the referendum and

thereby harmed Nix's interests. This is not a case about events that might never happen.

Moreover, although the parties admittedly disagree about how the statute will be applied, the

Court finds that there is sufficient information to construe the statute and make a judgment as to

its facial validly. That other parties could later bring as-applied claims does not mean this facial

challenge is not ripe.

C. Mootness

Plaintiffs' complaint alleged that Nix planned to run for Kinston city council in

November 2011. That election occurred during the course of this litigation. Nix lost, coming in

fourth out of six candidates running for three seats. Plfs.' Br. Regarding Suggestion of Mootness

at 1 [Docket Entry 67]. Plaintiffs have, however, submitted a copy of Nix's campaign website, in

which he promises to run again in the next election in November 2013. Id., Ex. C. Plaintiffs and

the government agree that the case is therefore not moot. Because election litigation frequently

outlasts election cycles, Nix's injury is of the type that is "capable of repetition, yet evading

review." LaRouche v. Fowler, 152 F.3d 974, 978-79 (D.C. Cir. 1997); see also LaRoque II, 650

F.3d at 788. Nix is likely -- indeed, nearly certain -- to suffer the same injury in his 2013 run for

Kinston city council. See LaRouche, 152 F.3d at 978-79. Accordingly, the Court finds that this

action is not moot.

D. Merits

1. Standard of Review

The parties dispute whether the claim that Congress exceeded its enforcement power in

30
enacting the amended Section 5 should be reviewed under the rationality standard set forth in

Katzenbach, 383 U.S. at 324, or under the more rigorous test laid out in City of Boerne v. Flores,

521 U.S. 507, 520 (1997). This Court considered the identical issue in Shelby County. See 2011

WL 4375001, at *21-34. For the reasons given there, the Court will review plaintiffs' claims

under Boerne's "congruence and proportionality" test.

2. The Scope of the Constitutional Right At Issue

In determining whether the 2006 amendments are within Congress's enforcement power,

the first step under Boerne is "to identify with some precision the scope of the constitutional

right at issue." See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001); see

also Tennessee v. Lane, 541 U.S. 509, 522 (2004). Where a 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

the Boerne analysis. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003). In

other words, Congress is more likely to be able to identify unconstitutional state action justifying

remedial, prophylactic enforcement legislation when it seeks to protect against discrimination

based on a classification like gender, "which triggers heightened scrutiny," see Hibbs, 538 U.S.

at 736, than when it seeks to protect against discrimination based on a trait such as disability,

which "incurs only the minimum 'rational-basis' review," see Garrett, 531 U.S. at 366. This is

because "the heightened level of constitutional scrutiny" that accompanies a suspect

classification or a fundamental right means that "the historical problems" identified by Congress

with respect to that class or right are more likely to amount to constitutional violations, and a

history of constitutional violations is a necessary predicate for the enactment of remedial

31
enforcement legislation under the Reconstruction Amendments. See 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, 87 (2006). Hence, "the Court gives Congress

significant leeway to craft broad remedial prohibitions when fundamental rights or protected

classes are at stake." Nw. Austin I, 573 F. Supp. 2d at 270.

The amendments to Section 5 protect two fundamental rights. First, they seek to protect

the right to vote -- a "fundamental political right, because [it is] preservative of all rights," Yick

Wo v. Hopkins, 118 U.S. 356, 370 (1886). Second, they protect against discrimination based on

race, "the classification of which we have been the most suspect," see M.L.B. v. S.L.J., 519 U.S.

102, 135 (1996) (Thomas, J., dissenting). Because Section 5 protects two of the most crucial

constitutional rights, Congress's enforcement powers are at its peak when it legislates to ensure

that voting is free from racial discrimination. See Nathaniel Persily, The Promise and Pitfalls of

the New Voting Rights Act, 117 YALE L.J. 174, 176 (2007) (hereinafter Persily, Promise and

Pitfalls) (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).

3. Evidence of Unconstitutional Discrimination in the Legislative Record and the
Congruence and Proportionality of Section 5

32
Given this definition of "the constitutional right at issue," Garrett, 531 U.S. at 365, the

next question is whether Congress identified "a history and pattern" of unconstitutional, state-

sponsored voting discrimination that justified the 2006 amendments to Section 5. Id. at 368. If

the Court finds that Congress has identified such a pattern, it must then consider whether the

challenged law is congruent and proportional to the identified violations. Boerne, 521 U.S. at

520, 530-32. In answering these second and third Boerne inquiries, the Court will consider

subsection (c) and subsections (b) and (d) separately. Before doing so, however, one general

argument plaintiffs press throughout their briefs must be addressed.

1. The expansion of the preclearance standard

Plaintiffs vehemently argue that the amendments cannot be a congruent and proportional

response to discrimination in voting, regardless of the evidence Congress amassed during the

2006 reauthorization, because "any 2006 expansion of the 1965 preclearance standard would be

unconstitutional given the dramatic improvements in the covered jurisdictions." Plfs.' Opp. at

33. Under their argument, there is a bright-line rule that any expansion of Section 5 is now per

se unconstitutional under Boerne.

The Court rejects this simplistic argument for several reasons. First, even if the

amendments are an expansion of Section 5's preclearance standard, that does not ipso facto make

them unconstitutional. Congress has previously expanded substantive provisions of the Voting

Rights Act, even in the face of unquestionably improved voting conditions, without thereby

rendering the VRA unconstitutional. In 1982, for instance, Congress significantly expanded the

VRA by providing that acts related to voting that were discriminatory in effect, as well as those

that were discriminatory in purpose, violated Section 2 of the Act. Presumably employing

33
Katzenbach's rationality review, the Supreme Court summarily affirmed that the post-1982

Section 2 was constitutional. Miss. Republican Exec. Comm. v. Brooks, 469 U.S. 1002, 1003

(1984).

Plaintiffs' bright-line argument does not make sense even as a theoretical matter.

Congress has amassed substantial evidence of discrimination in voting; it therefore has a range

of options for remedial legislation that would be congruent and proportional to the problem. In

evaluating the 2006 reauthorization, the question before this Court is whether the legislative

response Congress chose is within that range, not where it falls in the range relative to past

legislation. See Boerne, 521 U.S. at 530-32. So long as current needs justify the current

legislation, see Nw. Austin II, 129 S. Ct. at 2512, it does not matter whether Congress is

legislating more or less assertively than it has in the past. This is particularly true because

Section 5 now responds primarily to "second generation" voting problems, rather than to the

"first generation" problem of outright denials of the vote. House Hearing, 109th Cong. 1134

(Oct. 18, 2005) (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South:

The Impact of the Voting Rights Act 1965-1990 14 (Princeton University Press 1994)).

Congress could reasonably decide that a different preclearance standard is necessary to respond

to a different set of problems, and that decision would be acceptable so long as the remedy is

congruent and proportional to the problem. Boerne, 521 U.S. at 530-32.

Theoretical arguments aside, it is not at all clear that the 2006 amendments actually

represent an expansion to Section 5's preclearance standard. As this Court explained in the

Shelby County decision, "[i]n Bossier II . . . the Supreme Court -- for the first time -- held that

the 'purpose' prong of Section 5 only prohibits electoral changes that are enacted with a

34
discriminatory and retrogressive purpose." 2011 WL 4375001, at *10. Congress added

subsection (c) to Section 5 in order to "restore[] the pre-Bossier II 'purpose' standard." Id. at

*11. Similarly, "the Supreme Court's decision in Georgia v. Ashcroft, 539 U.S. 461 (2003) . . .

had altered the preexisting standard for determining whether a voting change had a prohibited

retrogressive effect under Section 5's 'effects' prong." Id. Congress therefore added subsections

(b) and (d) "in an attempt to restore the simpler, 'ability to elect' analysis articulated in" prior

caselaw. Id. This Court's understanding of the amendments as restorative was echoed by many

witnesses during the 2005 and 2006 hearings. See, e.g., Senate Hearing, 109th Cong. 182 (May

9, 2006) (responses of Theodore M. Shaw to questions of Sens. Specter, Cornyn, Leahy,

Kennedy, and Schumer); Senate Hearing, 109th Cong. 149 (May 9, 2006) (responses of Laughlin

McDonald to questions of Sens. Specter, Kennedy, Schumer and Cornyn); see also House

Hearing, 109th Cong. 59 (Nov. 1, 2005) (statement of Rep. John Conyers). While there was a

less universal consensus that the Ashcroft "fix" was a simple return to the status quo ante than

there was for the Bossier II "fix," see infra at 63-64, there was also no consensus that the

Ashcroft "fix" represented an expansion -- rather than a simple change -- to the preclearance

standard. Id.

In response to this record evidence, plaintiffs argue that "'[a] judicial construction of a

statute is an authoritative statement of what the statute meant before as well as after the decision

of the case giving rise to that construction.'" Plfs.' Opp. at 33 (quoting Rivers v. Roadway

Express, Inc., 511 U.S. 298, 312-13 (1994)). Plaintiffs contend that the Supreme Court's

decisions in Bossier II and Ashcroft necessarily establish what section 5 always meant, and that

it is therefore impossible to read the 2006 amendments as anything other than an expansion to

35
Section 5's preclearance standard.

The general rule is, of course, that "statutes operate only prospectively, while judicial

decisions operate retrospectively." United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982).

Hence, a judicial decision establishes what a statute meant as well as what it means. But in this

context, the Court does not believe that this general rule determines the constitutionality of the

2006 amendments to Section 5. Rivers explained that Congress could legislatively overrule a

decision of the Supreme Court if Congress believed the decision to be in error. 511 U.S. at 313.

Further, the Supreme Court explained, Congress "may even, within broad constitutional bounds,

make such a change retroactive and thereby undo what it perceives to be the undesirable past

consequences of a misinterpretation of its work product." Id. That is, Congress has the power to

legislatively overrule the Supreme Court's determination of what the statute meant as well as the

Court's determination of what the statute means.

Here, Congress made quite clear that it disagreed with the Supreme Court's determination

of what Section 5 meant, although it chose not to throw state and local election systems into

chaos by making the amendments apply retroactively. In the findings accompanying the

reauthorized Section 5, Congress found that "[t]he effectiveness of the Voting Rights Act of

1965 has been significantly weakened by the United States Supreme Court in Reno v. Bossier

Parish II and Georgia v. Ashcroft, which have misconstrued Congress' original intent in enacting

the Voting Rights Act of 1965 and narrowed the protections accorded by section 5 of such act."

Pub. L. 109-246, § 2(b)(6), 120 Stat. at 578; see also H.R. Rep. No. 109-478, at 2. The

amendments in subsections (b) through (d) were enacted "to (1) restore the original purpose to

Section 5 with respect to intentionally discriminatory voting changes; and (2) clarify the types of

36
conduct that Section 5 was intended to prevent." H.R. Rep. No. 109-478, at 65. The

authoritative determination of whether those amendments are constitutional is, of course,

reserved to the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But as a

matter of statutory construction, Congress made clear that the amendments represented a

restoration of the proper Section 5 standard, not an expansion.

Moreover, this Court would be hesitant to invalidate the amendments in the context of

the Boerne analysis solely on the basis of the rule cited in Rivers. Under Boerne, the Court not

only reviews the law Congress has enacted and whether Congress had rational reasons for doing

so, but also undertakes an in-depth analysis of how Congress arrived at its legislative

conclusions. Boerne, 521 U.S. at 530-32; see also Lane, 541 U.S. at 558-59 (2004) (Scalia, J.,

dissenting) ("Under [Boerne], the courts . . . must regularly check Congress's homework to make

sure that it has identified sufficient constitutional violations to make its remedy congruent and

proportional."). Such oversight of a co-equal branch is a delicate task. See id. at 558. Given

that virtually everyone who testified before Congress described Bossier II and Ashcroft as a

change from prior law -- at least as that law had been applied by courts and the Department of

Justice -- this Court is reluctant to play "gotcha" with Congress and invalidate the amendments

on the ground that they could technically represent an expansion of the statute.

2. Subsection (c)

As previously explained, the second step of the Boerne analysis is to determine whether

Congress identified "a history and pattern" of unconstitutional, state-sponsored voting

discrimination that justified the 2006 amendments to Section 5. See Garrett, 531 U.S. at 368.

The bulk of the opinion in Shelby County -- some seventy pages -- was devoted to reviewing

what direct and circumstantial evidence of purposeful discrimination Congress had amassed.

37
2011 WL 4375001, at *36-64. The Court will incorporate that discussion by reference rather

than repeating it here.

The specific issue raised by plaintiffs' challenge to subsection (c) is whether, given those

findings, the amendment is a congruent and proportional response to the pattern of identified

unconstitutional behavior. To answer that question, the Court will focus on the evidence

Congress amassed regarding why the amendment was necessary, i.e., why the Bossier II standard

could not respond to the problem of state-sponsored voting discrimination. Hence, keeping in

mind the findings of purposeful discrimination discussed in Shelby County, the Court will turn

to Congressional record evidence specific to the Bossier II amendment in subsection (c).

Congress heard the testimony of numerous witnesses on the need to overrule Bossier II.

As Debo Adegbile of the NAACP Legal Defense Fund explained, "in a very complex area of

law[,] the problem with Bossier Parish II is very understandable to everybody, whether they be a

lawyer or not, a representative or not. The problem is that the Voting Rights Act was clearly

intended to stop discrimination in voting. It was most certainly intended to stop intentional

discrimination in voting, and it was a long history of intentional discrimination that gave rise to

the Voting Rights Act." House Hearing, 109th Cong. 38 (May 4, 2006) (statement of Debo P.

Adegbile). Yet, under Bossier II, voting changes that purposefully discriminated on the basis of

race had to be precleared. See Bossier II, 528 U.S. at 341 (holding that Section 5 "does not

prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive

purpose"). Drew Days, a law professor and voting rights practitioner, testified that the Bossier II

standard "permit[ted] absurd results" and was "basically at war with the spirit of Section 5 in that

it places a burden on those that the Act was designed to protect." Senate Hearing, 109th Cong.

57 (May 17, 2006) (responses of Drew S. Days III to questions of Sens. Cornyn, Coburn,

38
Kennedy, Leahy, and Schumer).

Several witnesses explained that forcing minority voters to go to the time and expense of

Section 2 litigation in cases where there appeared to be intentional discrimination was highly

impractical for two reasons. First, neither the "small and underfinanced" voting rights bar nor

the minority communities were in a position to bear the expense of frequent litigation under

Section 2. Senate Hearing, 109th Cong. 95 (May 16, 2006) (responses of Pamela S. Karlan to

questions of Sens. Leahy, Kennedy, Kohl, Cornyn, and Coburn). Second, in the time it took to

litigate a section 2 case, candidates who benefitted from the intentionally discriminatory voting

procedures would already be incumbents and would have all the crucial advantages of

incumbency in later elections. See, e.g., House Hearing, 109th Cong. 97 (Mar. 8, 2006)

(statement of Joe Rogers); House Hearing, 109th Cong. 60 (Nov. 9, 2005) (statement of Rep.

Tyrone L. Brooks of Georgia General Assembly). Hence, moving a large number of voting

rights issues from Section 5 to Section 2 ran counter to the goal of "shift[ing] the advantage of

time and inertia from the perpetrators of the evil to its victims." Katzenbach, 383 U.S. at 328.

Congress also heard evidence that Bossier II, left uncorrected, would indeed force

preclearance of a large number of questionable practices that could only be remedied by time-

consuming, burdensome Section 2 litigation. Richard Valelly, a co-author of Peyton McCrary,

Christopher Seaman & Richard Valelly, The End of Preclearance As We Knew It: How the

Supreme Court Transformed Section 5 of the Voting Rights Act, 11 MICH. J. RACE & L. 275

(2006) (hereinafter "End of Preclearance"), testified before the House about the study. House

Hearing, 109th Cong. 877-922 (Oct. 18, 2005) (statement of Richard M. Valelly). According to

the End of Preclearance study, 43% of all Section 5 objections in the 1990s were based solely on

discriminatory intent, while another 31% of objections were based at least in part on

39
discriminatory intent. See End of Preclearance 297 tbl. 2. Hence, "the intent prong was

involved in a remarkable 74 percent of all objections in that decade." Id. at 298. Purpose-based

objections were particularly prevalent in the redistricting context, where nearly 90% of the

Justice Department's objections to post-1990 redistricting plans were based at least in part on

discriminatory intent. Id. at 298 tbl. 3; see also House Hearing, 109th Cong. 13-16 (Nov. 1,

2005) (Posner prepared statement).

According to the End of Preclearance study, these numbers changed remarkably after the

Supreme Court decided Bossier II. From the time of the Supreme Court's decision in January

2000 until the end of June 2004, the Department of Justice issued 43 total objections to voting

changes, compared to 250 objections in the equivalent period during the 1990s. End of

Preclearance 313-14 & n.198. Strikingly, only two of those objections were based solely on

intent; 13 were based on both intent and purpose. Id. Hence, from 1990-2000, 43% of

objections were based solely on purpose and 74% were based in part on purpose. In the four and

a half years after Bossier II, however, 4.7% of objections were based solely on purpose and

30.2% were based in part on purpose. As one of the study authors summarized, the effect of

Bossier II was "sort of like dropping off a cliff." House Hearing, 109th Cong. 879 (Oct. 18,

2005) (Valelly statement).

There are, of course, at least two readings of this information. One reading is that the

Department of Justice had successfully blocked many voting changes that were intended to

discriminate against minorities in the 1990s, but that Bossier II prevented it from doing so in the

2000s, thus allowing those changes to go into practice. Alternatively, some of the Supreme

Court's opinions have made clear that some members of the Court believe that the Department of

40
Justice inappropriately relied on the purpose prong to force redistricting jurisdictions to draw the

maximum possible number of majority-minority districts. See Miller v, Johnson, 515 U.S. 900,

924-25 (1995); see also Shaw v. Hunt, 517 U.S. 899, 911-13 (1996) ("Shaw II"). Hence, another

reading of the End of Preclearance data is that the Department of Justice was indeed relying too

heavily on the purpose prong and Bossier II had the salutary effect of forcing it to cease doing

so.

Congress heard considerable testimony on this question. One witness explained that he

would address it because "if the Department badly handled this authority in the past, one could

ask whether it is appropriate to again give the Department that authority in the future." House

Hearing, 109th Cong. 882 (Oct. 18, 2005) (Posner statement). After analysis of objections

interposed by the Department in the 1990s, he concluded that the Department of Justice had

generally followed the standard laid out in Village of Arlington Heights v. Metropolitan Housing

Development Corp., 429 U.S. 252 (1977), in interposing objections based on discriminatory

purpose. Id. at 883; see also House Hearing, 109 Cong. 17-18 (Nov. 1, 2005) (Posner prepared

statement). Another witness agreed that the Justice Department had properly used the "objective

and workable standard" of Arlington Heights in deciding whether to preclear voting changes

under the purpose prong. Senate Hearing, 109 Cong. 174-75, 182 (May 9, 2006) (Shaw

responses). This Court agrees with those assessments. Although reasonable people could differ

on the correctness of some of the objections interposed by the Department in the 1980s and

1990s, the Court finds that Congress amassed sufficient evidence in 2005 and 2006 to support

the conclusion that the Justice Department had largely used the purpose prong correctly before

Bossier II, and that Bossier II had forced preclearance of many intentionally discriminatory

41
voting procedures that could only be remedied by time-consuming, expensive Section 2

litigation. See H.R. Rep. No. 109-478, at 66-68.

Congress also heard testimony about discriminatory voting changes that would have been

precleared had the Department of Justice followed the Bossier II standards since the inception of

Section 5. The End of Preclearance authors pointed out that under the Bossier II standard,

Section 5 would have been virtually useless when it was "'needed most,'" because in some places

"'historical discrimination had left the number of black voters at close to zero.'" House Hearing,

109th Cong. 149 (Nov. 1, 2005) (draft of End of Preclearance) (quoting Bossier II, 528 U.S. at

374 (Breyer, J., dissenting)); see also Senate Hearing, 109th Cong. 94 (May 16, 2006) (Karlan

responses) (elaborating on the point). As one witness explained, "[t]he Bossier II rule actually

rewards the most intransigent perpetrators of discrimination, who after decades of exclusion of

minority voters and candidates, may now be able to keep the political process closed on the

ground that they have not abandoned their discriminatory ways. In these circumstances, under

the reasoning of Bossier II, would-be violators are not diminishing political power or access but

merely maintaining an exclusionary status quo. This scenario may aptly be characterized as

perversely paying dividends for past discrimination." House Hearing, 109th Cong. 43 (May 4,

2006) (Adegbile prepared statement).

The record also contained evidence of specific discriminatory changes that would have

gone into effect under the Bossier II standard. For instance, several witnesses pointed out that

Bossier II would have required preclearance of the infamous proposed 1981 congressional

redistricting in Georgia. As described in Shelby County, 2011 WL 4375001, at *51, Georgia

began its congressional redistricting process after the 1980 census showed that the state's ten

42
existing districts -- all of which were majority-white with the exception of the Fifth District --

had become severely malapportioned. Under the leadership of Joe Mack Wilson, Chair of the

House Reapportionment Committee, Georgia created a redistricting plan that maintained its nine

majority-white districts, and split the large, contiguous black population of the Atlanta

metropolitan area between the Fourth and Fifth Districts, thereby ensuring that blacks would still

comprise a majority of the Fifth District, but would only constitute 46% of the registered voters

there. See Busbee v. Smith, 549 F. Supp. 494, 498-99 (D.D.C. 1982). Because Georgia's plan

increased the percentage of blacks in the Fifth District, however, it was not retrogressive, and

therefore "technically . . . [did] not have a discriminatory effect, as that term has been construed

under the Voting Rights Act." Id. at 516.

A three-judge court in this district nonetheless denied preclearance to the plan based on

its conclusion that the plan had been "the product of purposeful racial discrimination." See id. at

516-18. In reaching this determination, the court made an express finding that "Representative

Joe Mack Wilson is a racist." Id. at 500. The court cited Wilson's now-infamous statement that

he did not want to draw "nigger districts," id. at 501, as well as testimony from other Georgia

legislators, who conceded that they, too, had intentionally sought to "keep the Fifth District 'as

white as possible . . . but just within the limits . . . to satisfy the Voting Rights Act . . . .'" Id. at

515 (internal citation omitted). As one state legislator explained, "'the motivation of the House

leadership' in creating the Fifth District . . . was to 'increase [the percentage of the black

population] just enough to say they had increased it [and] so that it would look like they had

increased it, but they knew they had not increased it enough to elect a black." Id. (internal

citation omitted). Another state senator admitted that he had felt obliged to vote for the plan

43
because he "'[didn't] want to have to go home and explain why I . . . was the leader in getting a

black elected to the United States Congress.'" Id. at 514 (internal citation omitted). These

"[o]vert racial statements," together with Georgia's history of racial discrimination in voting, and

the absence of any legitimate non-racial reasons for the redistricting plan, convinced the three-

judge court that the plan had been enacted with a discriminatory purpose, and hence had "'no

legitimacy at all under our Constitution or under [Section 5].'" Id. at 517 (quoting City of

Richmond v. United States, 422 U.S. 358, 378-79 (1975)). Representative John Lewis was

ultimately elected from the effective majority-minority district preserved by the litigation. See

House Hearing, 109th Cong. 20 (Nov. 1, 2005) (statement of Brenda Wright). Under Bossier II,

however, this discriminatory plan could only have been contested through Section 2 litigation.

Similarly, without the proposed amendment, the Justice Department would have had to

preclear Bladen County, North Carolina's 1987 attempt to change its method of election for its

board of county commissioners from at-large elections to three double-member and one at-large

district. Although the Justice Department found that the change would not have a retrogressive

effect, it nonetheless denied preclearance to the change based on its inability to conclude "that

the proposed election system is free from discriminatory purpose." 2 House Hearing, Scope,

109th Cong. 1761 (Oct. 25, 2005) (appendix to statement of Bradley J. Schlozman, Copies of

Objection Letters, by State, from 1980 to October 17, 2006) (hereinafter, "Schlozman

Appendix"). According to the Justice Department, the evidence presented by the county

demonstrated that "the responsible public officials [had] desired to adopt a plan which would

maintain white political control to the maximum extent possible and thereby minimize the

opportunity for effective political participation by black citizens." Id. at 1762. Indeed, the

44
Justice Department explained, "it appears that the board undertook extraordinary measures to

adopt an election plan which minimizes minority voting strength." Id.

Finally, Congress heard direct evidence that some jurisdictions were looking to capitalize

on Bossier II and other cases to the disadvantage of minority voters. The testimony of Kent

Willis, the director of the American Civil Liberties Union in Virginia, provided a particularly

striking confirmation of this point. See House Hearing, 109th Cong. 894 (Oct. 18, 2005)

(statement of Kent Willis). Willis explained that he had attended a 2002 redistricting meeting in

Fredricksburg, Virginia, where he lived. Id. The city had "long had one African-American

majority district in its system," and African-Americans had historically been elected from that

district. Id. Willis testified that the discussion at the 2002 meeting "was entirely about how do

we eliminate this district. And the instruction[] to the city attorney was, look at the recent

Supreme Court case, you know, look at the cases that are taking place in the mid-'90s and early

2000, and tell us if there is a way we can eliminate the African-American majority district." Id.

To summarize, Congress collected extensive evidence of purposefully discriminatory

voting changes that could or clearly would go into effect in the absence of the amendment in

subsection (c). It also heard testimony that leaving Bossier II intact would shift a great deal of

voting rights litigation from Section 5 to Section 2, and that such a shift would be a practical

disaster for minority voting rights. To correct these several problems, Congress amended section

5 to specify that "[t]he term 'purpose' in subsections (a) and (b) of this section shall include any

discriminatory purpose." 42 U.S.C. § 1973c(c).

In light of the record before Congress, as well as the Supreme Court's caselaw defining

and clarifying Congress's Fourteenth and Fifteenth Amendment enforcement powers, the Court

45
concludes that Congress did not exceed its enforcement powers in enacting subsection (c). The

Supreme Court's decision in United States v. Georgia, 546 U.S. 151 (2006) illustrates why.

There, the plaintiff, a disabled inmate in a Georgia state jail, claimed that he was confined to a

cell so small that he could not move his wheelchair and that he had to sit in his own bodily waste

because prison officials refused to help him use the inaccessible toilets and showers. Id. at 156.

He argued that this treatment violated the Americans with Disabilities Act, 42 U.S.C.A. § 12131

et seq. ("ADA"), and that Title II of the ADA abrogated Georgia's sovereign immunity. Id. The

Eleventh Circuit concluded that the ADA's attempted abrogation of Georgia's sovereign

immunity was invalid. Id. The Supreme Court reversed. Id. at 160. It first noted that if the

plaintiff's allegations were true, his treatment likely constituted an independent Fourteenth

Amendment violation (i.e., an Eighth Amendment violation incorporated against the states

through the Fourteenth Amendment) as well as a violation of the ADA. Id. at 157. The Court

then explained that, "[w]hile the Members of this Court have disagreed regarding the scope of

Congress's 'prophylactic' enforcement powers under § 5 of the Fourteenth Amendment, no one

doubts that § 5 grants Congress the power to 'enforce . . . the provisions' of the Amendment by

creating private remedies against the States for actual violations of those provisions." Id. at 158

(internal citations omitted). Because the plaintiff claimed actual violations of the Fourteenth

Amendment, Congress had broad remedial powers, including the usually disfavored power of

abrogating a state's sovereign immunity. Id. at 158-59.

Here, subsection (c) forbids purposeful discrimination. By definition, purposeful

discrimination by state actors on the basis of race violates the Constitution. U.S. CONST., amend.

XIV; Washington v. Davis, 426 U.S. 229, 239-41 (1976). Hence, the amendment to Section 5 in

46
subsection (c) forbids only conduct that constitutes an actual Fourteenth Amendment violation,

so Congress's enforcement powers are at their broadest. See Georgia, 546 U.S. at 158-59.

Subsection (c) differs in just one way from a straightforward ban on unconstitutional conduct:

instead of putting the onus on the alleged victim to prove discrimination, the burden is shifted to

the state actor to prove the absence of discrimination. The Supreme Court has previously

approved this burden-shifting procedure, see Katzenbach, 383 U.S. at 334-35, and such burden-

shifting seems far less intrusive than the abrogation of sovereign immunity approved in Georgia.

See 546 U.S. at 158-59. Given the substantial evidence that Congress amassed for the necessity

of an amendment to Section 5, and the narrowness of the amendment Congress chose, the Court

finds that subsection (c) lies comfortably within Congress's enforcement powers.

In reality, the core of plaintiffs' challenge to subsection (c) is not about Congress's

enforcement powers, but about the fear that the Department of Justice will use the purpose prong

to extract its preferred results in the redistricting context. Plfs.' Mem. in Supp. of Mot. for

Summ. J. ("Plfs.' MSJ") at 28-30, 41-42; Plfs.' Opp. at 29-32. The witnesses who testified

against the Bossier II "fix" were motivated by the same concern. See Senate Hearing, 109th

Cong. 11 (July 13, 2006) (statement of Michael Carvin); id. at 14 (statement of Abigail

Thernstrom); House Hearing, 109th Cong. 29-31 (Nov. 1, 2005) (statement of Roger Clegg).

The government argues in response that the Supreme Court's opinions in Miller and Shaw II

made clear that it may not so employ the purpose prong, and points to its regulations that

underscore the point. See Miller, 515 U.S. at 924-25; Shaw II, 517 U.S. at 911-13; see also 28

C.F.R. § 51.54 (providing that Justice Department must use factors set forth in Village of

Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), in

47
determining whether a voting change was motivated by discriminatory purpose); 28 C.F.R. §

51.59(b) (providing that "[a] jurisdiction's failure to adopt the maximum possible number of

majority-minority districts may not be the sole basis for determining that a jurisdiction was

motivated by a discriminatory purpose"). Moreover, the government argues, neither plaintiffs

nor the Congressional witnesses identified any instance of the Department of Justice's improper

reliance on the purpose prong since Miller. Def.'s Opp. at 36-37. While it is true that the

Supreme Court implicitly criticized the Justice Department for such behavior in 2000 in Bossier

II, see 528 U.S. at 324, the objection that was the basis for that case was originally made in 1993,

two years before Miller.

Whatever the merits of this concern, it is not the proper subject of a facial challenge to

subsection (c), and plaintiffs have made clear that they have disavowed their as-applied

challenge. "In determining whether a law is facially invalid, we must be careful not to go

beyond the statute's facial requirements and speculate about hypothetical or imaginary cases."

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008) (internal

quotation marks omitted); see also United States v. Raines, 362 U.S. 17, 22 (1960) ("The delicate

power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference

to hypothetical cases thus imagined."). Moreover, "facial challenges threaten to short circuit the

democratic process by preventing laws embodying the will of the people from being

implemented in a manner consistent with the Constitution. We must keep in mind that a ruling of

unconstitutionality frustrates the intent of the elected representatives of the people." Wash. State

Grange, 552 U.S. at 451 (internal citations and quotation marks omitted). That is particularly so

where, as here, Congress has clearly undertaken its legislative task with great care. See Shelby

48
County, 2011 WL 4375001, at *80.

If the Department of Justice employs subsection (c) to block unobjectionable voting

procedures, the affected jurisdiction will be entitled to bring an as-applied challenge to the

statute in a de novo proceeding in this district. LaRoque II, 650 F.3d at 783 (citing City of Rome

v. United States, 450 F. Supp. 378, 380-82 & n.3 (D.D.C. 1978)). But given the lack of any

current indication of such practices, this Court will not invalidate subsection (c) based on

speculation.

3. Subsections (b) and (d)

The challenge to subsections (b) and (d) revolves around the standard to be applied in

deciding whether to preclear districting and other changes that have the potential to dilute

minority votes. It is therefore appropriate to repeat some of Shelby County's findings about

intentionally discriminatory vote dilution.

The Congressional record contained significant evidence of intentionally dilutive actions

in the districting context. For instance, Congress heard testimony about an episode 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.

Congress also heard that during one round of redistricting, 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, 549 F.

Supp. at 501; see also H.R. Rep. No. 109-478, at 67; House Hearing, 109th Cong. 54 (Nov. 9,

49
2005) (prepared statement of Laughlin McDonald).

Congress was also provided information that, in 2002, the Justice Department objected to

a redistricting plan proposed by the city of Albany, Georgia, based on the determination that

Albany had not "carried its burden of showing that its proposed plan was not designed with the

intent to limit and retrogress the increased black voting strength." See 1 House Hearing, Scope,

109th Cong. 846 (Oct. 25, 2005) (Schlozman Appendix). The Justice Department examined

Albany's history of redistricting with respect to Ward 4, which, it found, revealed an "intent to

maintain Ward 4 as a district that remains at the . . . level of 70 percent white, thus eliminating

any ability of black voters to elect a candidate of choice in this district." Id. After the black

population in Ward 4 doubled from 20% to 40% during the 1980s, Albany adopted a

redistricting plan that reduced the Ward's population to 30% black. Then, after the black

population in Ward 4 increased from 30% to almost 51% during the 1990s, the city sought

preclearance for another redistricting plan that would have reduced the population in Ward 4 to

30% black. Id. at 846-47. The Justice Department objected to the proposed plan, noting that

"implicit" in the plan was "an intent to limit black political strength in the city to no more than

four districts." Id. at 847.

Another intent-based objection was lodged against the 2001 redistricting plan proposed

by Milden, Louisiana, in which the city "explicitly decided to eliminate one of the three existing

majority minority districts," even though "it was not compelled to redraw the district," and had

been "presented with an alternative that met all of its legitimate criteria while maintaining the

minority community's electoral ability." Id. at 1150-52. The Justice Department interposed yet

another intent-based objection to a redistricting plan submitted by Sumter County, South

50
Carolina, that same year, after the county council "explicitly decided to . . . eliminate one of the

four existing majority minority districts" despite the fact that the district's elimination had been

"easily avoidable." See 2 House Hearing, Scope, 109th Cong. 2082-84 (Oct. 25, 2005)

(Schlozman Appendix). In explaining the basis of its objection, the Justice Department noted

that the county had not been forced to redraw the district and that it had rejected an alternative,

non-retrogressive plan. Id. at 2083-84. Under the circumstances, the Justice Department was

unable to conclude "that the action in question was not motivated by a discriminatory intent to

retrogress." Id. at 2084.

The record revealed many more similar instances. See, e.g., 1 House Hearing, Scope,

109th Cong. 433 (Oct. 25, 2005) (Schlozman Appendix) (objecting to 1998 redistricting plan by

Tallapoosa County, Alabama, because "the history of the instant redistricting process and its

results raise serious concerns that the county . . . purposely impaired the ability of black voters to

elect a candidate of choice"); id. at 412 (objecting to Greensboro, Alabama's 1993 redistricting

plan on the ground that "the opportunity for black voters to elect a representative of their choice .

. . appears to have been constrained deliberately"); id. at 1410 (objecting to Mississippi's 1991

statewide legislative redistricting plan where it appeared "that the proposed plan is calculated not

to provide black voters in the Delta with the equal opportunity for representation required by the

Voting Rights Act"); id. at 830 (objecting to 2000 redistricting plan for Webster County,

Georgia's board of education, where the plan was created shortly after the county had elected its

first majority-black board, and the county's proffered reasons for the plan appeared to be "merely

pretexts for intentionally decreasing the opportunity of minority voters to participate in the

electoral process"); id. at 1611 (objecting to 1997 redistricting plan by Grenada, Mississippi,

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based on "substantial direct and circumstantial evidence of discriminatory purpose"); id. at 1516

(refusing to withdraw objection to Greenville, Mississippi's 1991 redistricting plan, which

"appeared to have been motivated by a desire on the part of white city councilmembers to retain

white control of the city's governing body," and explaining that since the plan's proposal, "white

city officials [have] continue[d] to engage in race-based decisionmaking and to design schemes

the purpose of which is to avoid black control of city government").

In addition to these examples, the legislative record included judicial decisions denying

preclearance that relied on evidence of intentional discrimination. The 1990 redistricting in

Georgia -- in which Joe Mack Wilson, Chair of the state's House Reapportionment Committee,

stated he did not want to draw "nigger districts" -- has already been discussed. In a more recent

declaratory judgment action, the Louisiana House of Representatives sought preclearance for its

2001 statewide redistricting plan, which eliminated a majority-black district in Orleans Parish,

and failed to create a comparable district anywhere else in the state. See Nw. Austin I, 573 F.

Supp. 2d at 256; Senate Hearing, 109th Cong. 28 (May 16, 2006) (responses of Theodore S.

Arrington to questions of Sens. Cornyn, Coburn, Leahy, Kennedy, and Kohl); Senate Hearing,

109th Cong. 152 (May 9, 2006) (Shaw responses); Senate Hearing, 109th Cong. 42-44 (June 21,

2006) (responses of Debo Adegbile to questions of Sens. Kennedy, Leahy, Cornyn, and Coburn).

In the course of defending their plan, Louisiana officials admitted that they had intentionally

"'obliterated'" the majority-black district in order to achieve what they characterized as

"proportional" representation for white voters in Orleans Parish. See Def.'s Br. in Supp. of Mot.

for Summ. J., La. House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); see also

Senate Hearing, 109th Cong. 43 (June 21, 2006) (Adegbile responses). But in selectively

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applying the theory of "proportional representation" to advantage only white voters in a

particular area of the state, Louisiana officials ignored the fact that it was the black population in

Orleans Parish, not the white population, that had increased during the preceding decade. See

Senate Hearing, 109th Cong. 28 (May 16, 2006) (Arrington responses). Moreover, the state

made no attempt to remedy blacks' statewide under-representation in proportion to their

percentage of the population, despite its avowed desire to achieve proportional representation for

white voters in a particular area of the state. See Def.'s Br. in Supp. of Mot. for Summ. J., La.

House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); Senate Hearing, 109th

Cong. 43 (June 21, 2006) (Adegbile responses); Nw. Austin I, 573 F. Supp. 2d at 256.

The Congressional record also contained many examples of changes to voting procedures

outside the districting context that the Department of Justice found to be motivated by

unconstitutional discriminatory purpose. For instance, an intent-based objection was interposed

in response to Wilson County, North Carolina's 1986 change to its system for electing county

commissioners, in light of the Justice Department's determination that the county's method of

election had been purposefully "designed and intended to limit the number of commissioners

black voters would be able to elect." 2 House Hearing, Scope, 109th Cong. 1731 (Schlozman

Appendix). In the context of annexations, the Justice Department issued an objection in 1990 to

the decision by Monroe, Louisiana, to annex certain wards for the Monroe City Court,

explaining that the annexations would have reduced the black percentage of the City Court's

jurisdiction from 48.4% to 39.2%. 1 House Hearing, Scope, 109th Cong. 927 (Oct. 25, 2005)

(Schlozman Appendix). The Justice Department also expressed concern regarding the timing of

the annexations, noting that one of the annexed wards "had been eligible to be added to the City

53
Court jurisdiction since at least 1970," but that there had been "little or no interest in

implementing this change until immediately prior to the 1984 City Court primary election, which

we understand was marked by the presence of the first black candidate for the City Court." See

id. 927-28; see also H.R. Rep. No. 109-478, at 23. Similarly, the Justice Department in 1997

objected to the annexations proposed by the city of Webster, Texas, where "the city's annexation

choices appear[ed] to have been tainted, if only in part, by an invidious racial purpose." 2 House

Hearing, Scope, 109th Cong. 2492 (Oct. 25, 2005) (Schlozman Appendix).

The Congressional record was thus replete with evidence of intentionally discriminatory

vote dilution, particularly in the districting context. Keeping that evidence in mind, the Court

will now turn to consideration of the evidence Congress gathered about the possible

consequences of the Supreme Court's opinion in Georgia v. Ashcroft. But to begin with, a brief

review of the caselaw interpreting the "effects" prong of Section 5 is useful.

Section 5(a) provides that no change to voting procedures can be precleared if it "will

have the effect of denying or abridging the right to vote on account of race or color[.]" 42 U.S.C.

§ 1973c(a). The Supreme Court first addressed the meaning of "the effect of denying or

abridging the right to vote on account of race or color" in Beer v. United States, 425 U.S. 130

(1976). According to Beer, the purpose of Section 5 was to "insure that no voting-procedure

changes would be made that would lead to a retrogression in the position of racial minorities

with respect to their effective exercise of the electoral franchise." Id. at 141. The Beer Court

added that "an ameliorative new legislative apportionment cannot violate § 5 unless the new

apportionment itself so discriminates on the basis of race or color as to violate the Constitution."

Id. Under Beer, then, the effects prong of Section 5 was solely concerned with retrogression,

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i.e., changes in voting practices or procedures that made the situation of minority voters worse.

The Beer standard was not so pellucid that it eliminated any possible questions about the

interpretation and application of the effects prong, but nonetheless, the Supreme Court did not

address the meaning of that prong again until Georgia v. Ashcroft, 539 U.S. 461 (2003). There,

the Court considered in depth what it meant to make the situation of minority voters worse.

Ashcroft arose as a result of the 2000 redistricting in Georgia. Id. at 469. The Court explained

that "a substantial majority of black voters in Georgia vote Democratic, [and] all elected black

representatives in the General Assembly are Democrats." Id. In the 2000 round of redistricting,

"[t]he goal of the Democratic leadership -- black and white -- was to maintain the number of

majority-minority districts and also increase the number of Democratic Senate seats." Id. To do

so, the Democratic leadership agreed to a plan "unpacking" certain majority-minority districts

with very high concentrations of black voters. Id. at 469-71. Thus, the concentration of black

voters was reduced in some districts, and black voters -- a "substantial majority" of whom

reliably voted Democratic -- were spread to other districts to increase Democratic candidates'

chances of success. Id.

Instead of seeking administrative preclearance from the Attorney General, Georgia

instituted an action seeking judicial preclearance. Id. at 471. A three-judge panel denied

preclearance on the grounds that the plan would "diminish African American voting strength in"

the unpacked districts, and that Georgia had "failed to present any . . . evidence" that the

retrogression in those districts "will be offset by gains in other districts." Georgia v. Ashcroft,

195 F. Supp. 2d 25, 88 (D.D.C. 2002). Georgia appealed directly to the Supreme Court.

See Ashcroft, 539 U.S. at 475.

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The Supreme Court's task was to divine whether the districting plan, based on a complex

mix of partisanship, incumbency protection, and compliance with the Voting Rights Act, "'would

lead to a retrogression in the position of racial minorities with respect to their effective exercise

of the electoral franchise.'" 539 U.S. at 462 (quoting Beer, 425 U.S. at 141). In answering that

question, the Supreme Court set out a lengthy "totality of the circumstances" test that courts

evaluating retrogression should consider. 539 U.S. at 480-84. The Court emphasized that "the

ability of a minority group to elect a candidate of its choice remains an integral feature in any § 5

analysis." Id. at 484. But, the Court said, it "cannot be dispositive." Id. at 480. Rather,

[i]n order to maximize the electoral success of a minority group, a State may
choose to create a certain number of "safe" districts, in which it is highly likely
that minority voters will be able to elect the candidate of their choice.
Alternatively, a State may choose to create a greater number of districts in which
it is likely -- although perhaps not quite as likely as under the benchmark plan --
that minority voters will be able to elect candidates of their choice.
Section 5 does not dictate that a State must pick one of these methods of
redistricting over another. Either option will present the minority group with its
own array of electoral risks and benefits, and presents hard choices about what
would truly maximize minority electoral success.

Id. (internal quotation marks and citations omitted). In addition to the choice between fewer

completely "safe" districts and more less safe districts, the Court wrote that the analysis should

include whether a plan added or subtracted "influence districts" -- districts "where minority

voters may not be able to elect a candidate of choice but can play a substantial, if not decisive,

role in the electoral process." Id. at 482. Finally, the Court added two additional considerations

to its totality of the circumstances test: "the comparative position of legislative leadership,

influence, and power for representatives of the benchmark majority-minority districts" and

whether minority-preferred representatives supported the plan. Id. at 483-84 (internal quotation

marks and citations omitted).

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Congress reacted to Ashcroft in 2006 by adding subsections (b) and (d) to Section 5.

Those amendments provide that

(b) Any voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting that has the purpose of or will have the effect of
diminishing the ability of any citizens of the United States on account of race or
color, or in contravention of the guarantees set forth in section 1973b (f)(2) of this
title, to elect their preferred candidates of choice denies or abridges the right to
vote within the meaning of subsection (a) of this section.
...
(d) The purpose of subsection (b) of this section is to protect the ability of such
citizens to elect their preferred candidates of choice.

42 U.S.C. § 1973c(b), (d). Hence, instead of allowing courts and the Department of Justice to

take into account a wide variety of potential indicators of minority voting effectiveness in

conducting the preclearance analysis, Congress clarified that Section 5 is focused on minorities'

ability "to elect their preferred candidates of choice." In the House Report accompanying the

bill, Congress explained that the amendments were meant to return to the analysis articulated in

Beer. See H.R. Rep. No. 109-478, at 71.

Unlike the debate over the Bossier II fix, which nearly all witnesses agreed was

necessary and appropriate, the Ashcroft fix was the subject of extended debate. A consistent

theme, however, was that the standard laid out in Ashcroft was impossibly challenging to

administer, particularly within the 60-day period in which the Department of Justice must make

preclearance decisions. Witnesses called it "an unworkable standard," Senate Hearing, 109th

Cong. 8 (May 16, 2006) (Arrington statement), "subjective, abstract, and impressionistic," House

Hearing, 109th Cong. 49 (Nov. 9, 2005) (McDonald statement), "amorphous [and] easily

manipulable . . . an open invitation to mischief . . . [and] poorly defined and virtually impossible

to meaningfully administer." Senate Hearing, 109th Cong. 39 (May 17, 2006) (Days responses).

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Robert Kengle, the former Deputy Chief of the Voting Section of the Justice Department's Civil

Rights Division, testified that Ashcroft had "introduced factors into the retrogression analysis

that make the Section 5 process more complicated and burdensome for everybody, not just for

the Department of Justice but for the jurisdictions that have to comply with it as well." House

Hearing, 109th Cong. 889 (Oct. 18, 2005) (statement of Robert A. Kengle). Kengle also worried

that Ashcroft would make preclearance decisions "less predictable and more open to subjective

judgments, individual preconceptions and even political biases." Id. A hearing in the House

opened with the question, "Georgia v. Ashcroft: can it be made workable?" House Hearing,

109th Cong. 2 (Nov. 9, 2005) (Rep. Conyers statement).

Witnesses were particularly concerned about the introduction of "influence" districts into

the Section 5 calculus. "Influence" districts, as previously explained, are those where "minority

voters may not be able to elect a candidate of choice but can play a substantial, if not decisive,

role in the electoral process." Ashcroft, 539 U.S. at 482.5 Congressional witnesses testified that

a key problem with the Ashcroft opinion was the lack of a standard that would allow courts and

5
Influence districts contrast with majority-minority, crossover, and opportunity districts.
The meaning of those terms is subject to considerable debate. Persily, Promise and Pitfalls 235-
37, 241-42. As used in this opinion, majority-minority districts are those where a minority group
is able to elect its "preferred candidates of choice" without crossover voting from either white
voters or voters of a different minority group. See id. at 241-42 (discussing conceptual issues in
defining majority-minority districts). "Crossover" districts, sometimes called coalition districts,
are those where minority voters can elect their candidates of choice with certain "crossover"
votes from white or other voters who support the minority group's candidates of choice. See
Bartlett v. Strickland, 129 S. Ct. 1231, 1242-43 (2009) (discussing different types of districts).
"Crossover" districts are different than influence districts because the minority voters are
sufficiently numerous that they can choose the candidate, presumably because they form a
majority of voters in the primary elections, rather than choosing among white voters' candidates
of choice. See id. at 1242; see also Persily, Promise and Pitfalls 236, 242-43. Finally, this Court
will use "opportunity district" as an all-purpose term for those jurisdictions where minority
voters can elect their candidates of choice. Both majority-minority districts and crossover
districts are opportunity districts.

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the Justice Department to determine which districts were "influence" districts. Theodore Shaw

explained that "[w]e don't know what 'influence districts' really mean[s]." He asked:

How is influence effectively measured within DOJ’s sixty-day administrative
window? Does one look to roll call votes? Do those votes need to be on issues
that have a discernible race element or just a discernible position preferred by
minority group members? Is it enough if candidates for office campaign in
minority communities? Must influence be consistently in evidence or is
occasional influence sufficient?

House Hearing, 109th Cong. 13, 25 (Nov. 9, 2005) (statements of Theodore M. Shaw). Another

witness cited a study showing that a group's influence on a given legislator does not linearly

increase with the group's size, as one might expect, but rather has a "curvi-linear relationship" to

the group's size. House Hearing, 109th Cong. 57 (Nov. 9, 2005) (McDonald statement).

Moreover, as Representative Feeney pointed out, all of these problems were compounded by the

fact that what constituted an influence district would "change from candidate to candidate and

cycle to cycle and geographic area to geographic area." House Hearing, 109th Cong. 84 (Oct.

25, 2005) (statement of Rep. Tom Feeney).

Several witnesses also testified that they were troubled by the fact that the Ashcroft

opinion gave no guidance as to when and whether majority-minority districts or other

opportunity districts could be traded for influence districts, and how many influence districts

would make up for the loss of an opportunity district. Senate Hearing, 109th Cong. 168 (May 9,

2006) (Shaw responses); Senate Hearing, 109th Cong. 116-17 (May 16, 2006) (responses of

Richard H. Pildes to questions of Sens. Specter, Cornyn, Coburn, and Kohl); Senate Hearing,

109th Cong. 58-59 (May 17, 2006) (Days responses); House Hearing, 109th Cong. 139-40 &

n.10 (Nov. 9, 2005) (Kengle prepared statement); House Hearing, 109th Cong. 49-50 (May 4,

2006) (Adegbile prepared statement). The lack of clarity about how to define influence districts,

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along with the uncertainty about when influence districts could be traded for opportunity

districts, combined to create what several witnesses saw as the most significant problem with

Ashcroft: the opinion might allow jurisdictions to sub

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2658666. Public record. Not legal advice.