Shelby County, Alabama v. Holder

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

SHELBY COUNTY, ALABAMA,

Plaintiff,

v. Civil Action No. 10-0651 (JDB)

ERIC H. HOLDER, Jr., in his official

capacity as Attorney General of the United

States,

Defendant.

MEMORANDUM OPINION

Section 5 of the Voting Rights Act of 1965 ("the Act") prevents certain "covered"

jurisdictions from implementing any change to voting practices or procedures unless and until the

jurisdiction demonstrates to federal authorities that the change "neither has the purpose nor will

have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. §

1973c. Praised by some as the centerpiece of the most effective civil rights legislation ever

enacted, Section 5 has been condemned by others as an impermissible federal encroachment on

state sovereignty. In 2009, the Supreme Court addressed Congress's 2006 extension of Section 5

and, although avoiding the merits of a facial constitutional challenge to Section 5's

"preclearance" obligation, nonetheless expressed concern about the provision's continued vitality,

noting that "[t]he Act's preclearance requirements and its coverage formula raise serious

constitutional questions." Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2513

(2009) ("Nw. Austin II").

Today, those serious constitutional questions can no longer be avoided. Shelby County,

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Alabama ("Shelby County" or "plaintiff"), a jurisdiction covered by Section 4(b) of the Act, 42

U.S.C. § 1973b(b), has brought this suit against the Attorney General ("defendant") seeking a

declaratory judgment that Section 5 and Section 4(b) are facially unconstitutional, and a

permanent injunction prohibiting defendant from enforcing these provisions. Compl. ¶¶ 1, 44(a)-

(b). Specifically, Shelby County alleges that Section 4(b)'s coverage formula and Section 5's

preclearance obligation for covered jurisdictions exceed Congress's enforcement authority under

the Fourteenth and Fifteenth Amendments, and violate the principle of "equal sovereignty"

embodied in the Tenth Amendment and Article IV of the U.S. Constitution. Id. ¶¶ 36-43.

This Court is mindful that "judging the constitutionality of an Act of Congress is 'the

gravest and most delicate duty that [it] is called on to perform.'" Nw. Austin II, 129 S. Ct. at

2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147-48 (1927) (Holmes, J., concurring)). That

duty is all the more sensitive where, as here, the challenged statute seeks to enforce the core

Fifteenth Amendment prohibition against denial of the franchise on the basis of race. The

Fifteenth Amendment provides that "[t]he right of citizens of the United States to vote shall not

be denied or abridged by the United States or by any State on account of race, color, or previous

condition of servitude." U.S. CONST . amend. XV, § 1. Yet 95 years after the Amendment's

ratification, the struggle for the realization of this constitutional guarantee was far from complete.

See H.R. Rep. No. 89-439, at 2439 (1965). In 1965, literacy tests, poll taxes, and other devices

were still being "widely used" in certain regions of the country as part of "a calculated plan to

deprive Negroes of their right to vote." Id. at 2443. When traditional litigation proved

ineffective to counter "those determined to circumvent the guarantees of the 15th amendment,"

id. at 2441, Congress decided that "the wrong to our citizens is too serious -- the damage to our

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national conscience is too great not to adopt more effective measures than exist today," id. at

2442. Hence, almost a century after the Fifteenth Amendment was ratified, Congress passed the

Voting Rights Act of 1965 -- with Section 5 at its core -- in order "to make the guarantees of the

Fifteenth Amendment finally a reality for all citizens." Allen v. State Bd. of Elections, 393 U.S.

544, 556 (1969). Congress reauthorized the Act three times (in 1970, 1975 and 1982), and the

Supreme Court upheld each reauthorization against constitutional challenges. See Nw. Austin II,

129 S. Ct. at 2510.

Certainly, today Section 5's continued constitutionality "must be judged with reference to

the historical experience which it reflects." South Carolina v. Katzenbach, 383 U.S. 301, 308

(1966). But the Supreme Court has also made clear that history alone cannot provide a valid

basis for upholding Section 5 indefinitely; rather, "the Act imposes current burdens and must be

justified by current needs." Nw. Austin II, 129 S. Ct. at 2512. This Court has now carefully

reviewed the extensive 15,000-page legislative record that Congress amassed in support of its

2006 reauthorization of Section 5 and Section 4(b). It is, of course, Congress that is charged in

the first instance under the Fifteenth Amendment with formulating the legislation needed to

enforce it. Id. at 2513. Bearing in mind both the historical context and the extensive evidence of

recent voting discrimination reflected in that virtually unprecedented legislative record, the Court

concludes that "current needs" -- the modern existence of intentional racial discrimination in

voting -- do, in fact, justify Congress's 2006 reauthorization of the preclearance requirement

imposed on covered jurisdictions by Section 5, as well as the preservation of the traditional

coverage formula embodied in Section 4(b). Applying the standard of review articulated by the

Supreme Court in City of Boerne v. Flores, 521 U.S. 507 (1997), this Court finds that Section 5

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remains a "congruent and proportional remedy" to the 21st century problem of voting

discrimination in covered jurisdictions.

BACKGROUND

I. The History of the Voting Rights Act of 1965

The Voting Rights Act of 1965 "was designed by Congress to banish the blight of racial

discrimination in voting." Katzenbach, 383 U.S. at 308. Although the Fifteenth Amendment

guaranteed African-American citizens the right to vote as early as 1870, southern states quickly

responded by creating a series of voting qualifications and devices to perpetuate black

disenfranchisement. See id. at 310-311; see also H.R. Rep. No. 89-439, at 2439-40. None of this

new voting legislation mentioned race on its face, but it was nonetheless "motivated entirely and

exclusively by a desire to exclude the Negro from voting." H.R. Rep. No. 89-439, at 2443, 2451.

Southern states imposed poll taxes, which disproportionately burdened African-Americans as a

result of their comparatively lower incomes. See id. at 2451-53. They enacted literacy

requirements as a precondition to voting "based on the fact that as of 1890 . . . more than two-

thirds of the adult Negroes [in southern states] were illiterate while less than one-quarter of the

adult whites were unable to read or write." Katzenbach, 383 U.S. at 311. And they adopted

alternate tests, such as grandfather clauses and property qualifications, in order to "assure that

white illiterates would not be deprived of the franchise." Id.

Not only were these tests intentionally discriminatory in their design, but southern voting

officials were given unfettered discretion to administer them in a discriminatory fashion.

Officials would refuse to accept poll taxes from blacks seeking to pay them, or would withhold

poll tax exemption certificates from otherwise-qualified black applicants. See H.R. Rep. No. 89-

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439, at 2452. They would provide whites with "easy versions" of literacy tests or excuse them

altogether, but demand that blacks pass "difficult versions . . . without the slightest error."

Katzenbach, 383 U.S. at 312-13. Other voting qualifications -- including the infamous "good-

morals requirement" and "constitutional interpretation" tests -- were so inherently "vague and

subjective" that they "constituted an open invitation to abuse at the hands of voting officials." Id.

In addition to these methods of direct disenfranchisement, southern officials before 1965

also enacted laws designed to dilute black voting strength, if and when blacks were able to

register and cast ballots. Specifically, southern officials "gerrymandered election districts,

instituted at-large elections, annexed or deannexed land as it fit their racial and partisan interests,

and required huge bonds of officeholders." J. Morgan Kousser, The Strange, Ironic Career of

Section 5 of the Voting Rights Act, 1965-2007, 86 TEX . L. REV . 667, 678-79 (2008); see also To

Examine the Impact and Effectiveness of the Voting Rights Act, Hearing Before the Subcomm.

on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1138 (Oct. 18, 2005)

("Impact and Effectiveness") (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution

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

These tactics aimed at reducing the ability of blacks to elect candidates of their choice --

sometimes referred to as "[d]isenfranchisement by indirection" -- were widely employed

throughout the South in the late nineteenth century, and they reemerged during the "Second

Reconstruction" of the mid-twentieth century as well. See 1 Voting Rights Act: Evidence of

Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the

Judiciary, 109th Cong. 142 (Mar. 8, 2006) (hereinafter, "1 Evidence of Continued Need")

(National Commission on the Voting Rights Act, Protecting Minority Voters: The Voting Rights

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Act at Work 1982-2005 (Feb. 2006) (hereinafter, "Nat'l Comm'n Report")); see also An

Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to

Reauthorization, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 206 (May 9, 2006)

("Introduction to Expiring Provisions") (prepared statement of Chandler Davidson).

The Supreme Court eventually responded to these attempts to evade the requirements of

the Reconstruction Amendments by striking down some of the most egregious practices used to

impede blacks from effectively exercising their right to vote. See Katzenbach, 383 U.S. at 311-

12 (internal citations omitted). The Court invalidated grandfather clauses in 1915, see Guinn v.

United States, 238 U.S. 347 (1915); Myers v. Anderson, 238 U.S. 368 (1915); outlawed the so-

called "white primary" in 1944, see Smith v. Allwright, 321 U.S. 649 (1944); and condemned

racial gerrymandering in 1960, when the city of Tuskegee, Alabama, attempted to transform its

square-shape into "a strangely irregular twenty-eight-sided figure," which had the effect of

removing "from the city all save four or five of its 400 Negro voters while not removing a single

white voter or resident," Gomillion v. Lightfoot, 364 U.S. 339, 341 (1960).1

Congress also responded to southern states' sophisticated disenfranchisement strategies by

enacting civil rights legislation in 1957, 1960, and 1964, which sought to "facilitat[e] case-by-

case litigation against voting discrimination." Katzenbach, 383 U.S. at 313. But it soon became

apparent that "case-by-case" litigation would not be sufficient to protect African-Americans'

access to the ballot. See H.R. Rep. No. 89-439, at 2440-41. Not only was litigation expensive

and slow, but even where it proved successful, southern officials would often ignore court orders,

1

Reversing the lower court's dismissal of the case, the Supreme Court emphasized that

the Fifteenth Amendment "nullifies sophisticated as well as simple-minded modes of

discrimination." Gomillion, 364 U.S. at 342 (internal quotation marks and citation omitted).

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"close[] their registration offices to freeze the voting rolls," or "merely switch[] to discriminatory

devices not covered by the federal decrees." Katzenbach, 383 U.S. at 314. As Congress

explained, "[b]arring one contrivance too often has caused no change in result, only in methods."

H.R. Rep. No. 89-439, at 2441. Hence, in 1965 Congress decided that "sterner and more

elaborate measures" were needed to combat the "insidious and pervasive evil which had been

perpetrated in certain parts of our country through unremitting and ingenious defiance of the

Constitution." Katzenbach, 383 U.S. at 309.

To craft these measures effectively, the Senate and House Committees on the Judiciary

held hearings for nine days, during which they discussed 122 proposed voting rights bills and

heard testimony from 67 witnesses. See id.; see also H.R. Rep. No. 89-439, at 2438. The House

debated the legislation for three full days, while the Senate discussed the Act for almost a month.

See Katzenbach, 383 U.S. at 308. Ultimately, when it came time to vote, "the verdict of both

chambers was overwhelming": the Voting Rights Act of 1965 passed by a margin of 328-74 in

the House, and 79-18 in the Senate. Id.; see also Voting Rights Act of 1965 ("1965 Act"), Pub.

L. No. 89-110, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 et seq.).

The Act's basic prohibition against racial discrimination in voting is contained in Section

2, which provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or

procedure shall be imposed or applied by any State or political subdivision in a manner which

results in a denial or abridgement of the right of any citizen of the United States to vote on

account of race or color." 42 U.S.C. § 1973. Although Section 2 echoes the language of the

Fifteenth Amendment, at least since 1982 it has been interpreted to prohibit a broader category of

conduct than that which the Amendment itself proscribes, as it forbids all electoral practices with

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discriminatory "results," not just those enacted with a discriminatory purpose. Compare City of

Mobile v. Bolden, 446 U.S. 55, 62 (1980) (holding that Section 2 merely restates "the

prohibitions already contained in the Fifteenth Amendment" and that "racially discriminatory

motivation is a necessary ingredient of a Fifteenth Amendment violation") with S. Rep. No. 97-

417, at 28 (1982) (explaining Congress's intent to amend Section 2 in response to City of Mobile

to make clear that a plaintiff can establish a Section 2 violation "without proving any kind of

discriminatory purpose"). Other provisions of the Voting Rights Act ban poll taxes, 42 U.S.C. §

1973h, prohibit voter intimidation and coercion, 42 U.S.C. § 1973i(b), and establish civil and

criminal sanctions for the deprivation of rights secured by the Act, 42 U.S.C. § 1973j.

In addition to these permanent provisions -- which apply nationwide -- the Act sets forth

"a complex scheme of stringent remedies aimed at areas where voting discrimination has been

the most flagrant." Katzenbach, 383 U.S. at 315. These targeted provisions are temporary, and

only apply to jurisdictions that are "covered" under Section 4(b). For example, Section 4(a) of

the Act bans the use of voting tests in all covered jurisdictions, see 42 U.S.C. § 1973b(a), while

Section 8 authorizes the Attorney General to send federal observers to enter polling places and

monitor elections in covered jurisdictions when "necessary to enforce the guarantees of the 14th

or 15th amendment," 42 U.S.C. § 1973f(a)(2); see also H.R. Rep. No. 109-478, at 91 (2006).2

Section 5, however, remains the most innovative -- and the most controversial -- of the

Act's targeted, temporary provisions. Under Section 5, a covered jurisdiction cannot make any

changes to its voting qualifications, standards, practices, or procedures unless those changes are

2

Under Section 3(a) of the Act, federal observers may also be assigned to non-covered

jurisdictions where it is deemed "appropriate to enforce the voting guarantees of the fourteenth or

fifteenth amendment." See 42 U.S.C. § 1973a(a); see also H.R. Rep. No. 109-478, at 91.

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first "submitted to and approved by a three-judge Federal District Court in Washington, D.C., or

the Attorney General." See Nw. Austin II, 129 S. Ct. at 2509; 42 U.S.C. § 1973c. Preclearance

under Section 5 will only be granted if a jurisdiction can show that its proposed voting change

"neither 'has the purpose nor will have the effect of denying or abridging the right to vote on

account of race or color.'" Nw. Austin II, 129 S. Ct. at 2509 (quoting 42 U.S.C. § 1973c(a)).

Section 5 constituted a direct response to the "common practice in some jurisdictions of

staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as

the old ones had been struck down." Beer v. United States, 425 U.S. 130, 140 (1976). Prior to

1965, such novel methods of minority disenfranchisement would continue to operate "until the

Justice Department or private plaintiffs were able to sustain the burden of proving that the new

law, too, was discriminatory." Id. But with the passage of Section 5, Congress "shift[ed] the

advantage of time and inertia from the perpetrators of the evil to its victim," Katzenbach, 383

U.S. at 328. Rather than requiring minority voters to sue to challenge discriminatory voting

practices after their implementation, Section 5 places the burden on covered jurisdictions to show

their voting changes are nondiscriminatory before those changes can be put into effect. See id.

If a jurisdiction covered by Section 5 chooses to submit its proposed electoral change to

the Attorney General for preclearance, and the Attorney General does not interpose an objection

to the change within 60 days, the change may be implemented as proposed. See 42 U.S.C. §

1973c(a); see also City of Rome v. United States, 446 U.S. 156, 170 (1980). If the Attorney

General does interpose an objection, the submitting jurisdiction "may at any time request the

Attorney General to reconsider an objection," see 28 C.F.R. § 51.45(a), or it may institute a

declaratory judgment action before a three-judge panel of this Court, seeking "de novo

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consideration of whether the method of election violates rights protected by the Voting Rights

Act or the Constitution," Cnty. Council of Sumter Cnty. v. United States, 555 F. Supp. 694, 706-

07 (D.D.C. 1983) (three-judge court); see also City of Rome v. United States, 450 F. Supp. 378,

381-82 (D.D.C. 1978) (three-judge court), aff'd, 446 U.S. 156 (1980) (explaining that "even if . . .

the Attorney General objects to certain proposed electoral changes, the applicant-jurisdiction can

always seek . . . a declaratory judgment from a three-judge court in this District . . . "); 28 C.F.R.

§ 51.11 (noting that "[s]ubmission to the Attorney General does not affect the right of the

submitting authority to bring an action in the U.S. District Court for the District of Columbia for

a declaratory judgment"). However, if the jurisdiction does not receive federal preclearance from

either the Attorney General or a three-judge panel of this Court, the change to its voting practice

or procedure may not be implemented.

Section 4(b) establishes the formula that determines which jurisdictions are subject to

Section 5's preclearance requirements (and the other temporary provisions of the Act). As

originally enacted, a jurisdiction was "covered" under Section 4(b) if it maintained a voting test

or device as of November 1, 1964, and had less than 50% voter registration or turnout in the

1964 presidential election. See 1965 Act § 4(b).3 Congress found that the combined presence of

one of these "tests or devices" and low voter registration or turnout in a particular jurisdiction

made it "a strong probability that low registration and voting are a result of racial discrimination

in the use of such tests." H.R. Rep. No. 89-439, at 2444. The jurisdictions originally covered by

3

A voting "test or device" was defined by statute as a requirement that a person "(1)

demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any

educational achievement or his knowledge of any particular subject, (3) possess good moral

character, or (4) prove his qualifications by the voucher of registered voters or members of any

other class." Id. § 4(c).

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this formula were Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia.

See 28 C.F.R. pt. 51 app. Thirty-nine counties in North Carolina and one county in Arizona also

qualified for coverage as separately designated political subdivisions. Id.

It was no coincidence that the six states originally covered in their entirety by Section

4(b) -- and therefore subject to preclearance under Section 5 -- were those southern states with

the worst historical records of racial discrimination in voting. The drafters of the Act

purposefully designed its coverage formula "to pick up the core Southern states that had been

bastions of Jim Crow." Introduction to the Expiring Provisions 221 (statement of Samuel

Issacharoff). As one scholar has explained, "those who wrote the legislation knew the states they

wanted to 'cover' and, by a process of trial and error, determined the participation level that

would single them out." 1 Voting Rights Act: Section 5 of the Act – History, Scope, and

Purpose, Hearing before the Subcomm. on the Constitution of the H. Comm. on the Judiciary,

109th Cong. 68 (Oct. 25, 2005) ("1 History, Scope, & Purpose") (Abigail Thernstrom, Whose

Votes Count? Affirmative Action and Minority Rights (Harvard University Press 1987)). The

reverse-engineered, percentage-based "trigger" for coverage under the Act was, in other words, "a

formally neutral device for capturing a more historically based truth." The Continuing Need for

Section 5 Pre-Clearance, Hearing before the S. Comm. on the Judiciary, 109th Cong. 99 (May

16, 2006) ("Continuing Need") (responses of Pamela S. Karlan to questions submitted by

Senators Leahy, Kennedy, Kohl, Cornyn, and Coburn) ("Karlan Responses").

But Congress also recognized the potential that Section 4(b)'s coverage formula would be

over- or under-inclusive, and hence created mechanisms whereby jurisdictions could "bail out" of

or "bail-in" to Section 5's requirements. See 1965 Act § 4(a), § 3(c). In order to successfully

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"bail out" under the version of Section 4(a) now in effect, a jurisdiction must obtain a declaratory

judgment from a three-judge court confirming that "for the previous ten years it has not used any

forbidden voting test, has not been subject to any valid objection under § 5, and has not been

found liable for other voting rights violations." Nw. Austin II, 129 S. Ct. at 2509. The

jurisdiction must also show "that it has 'engaged in constructive efforts to eliminate intimidation

and harassment of voters,' and similar measures." Id. (quoting 42 U.S.C. § 1973b(a)(1)(A)-(F)).

By the same token, a court can require a jurisdiction to "bail-in" to the requirements of Section 5

if it finds that "violations of the fourteenth or fifteenth amendment justifying equitable relief have

occurred within the territory of such State or political subdivision." 42 U.S.C. § 1973a(c).

Specifically, a court presiding over a voting discrimination suit against a state or political

subdivision may retain jurisdiction over the suit "for such a period as it may deem appropriate,"

and may, during that time, require that the defendant-jurisdiction be subject to preclearance. Id.

Shortly after Congress enacted the Voting Rights Act, South Carolina brought suit

challenging the constitutionality of Section 5's preclearance requirement, Section 4(b)'s coverage

formula, and several of the Act's other temporary provisions, on the grounds that they exceeded

Congress's Fifteenth Amendment enforcement authority and violated "[t]he doctrine of the

equality of the states." Katzenbach, 383 U.S. at 323, 328. Rejecting these arguments, the

Supreme Court explained that "[a]s against the reserved powers of the States, Congress may use

any rational means to effectuate the constitutional prohibition of racial discrimination in voting."

Id. at 325. Although recognizing that Section 5 "may have been an uncommon exercise of

congressional power," the Court noted that "exceptional conditions can justify legislative

measures not otherwise appropriate." Id. at 334. With respect to the coverage formula in Section

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4(b), the Court found that Congress had considered "reliable evidence of actual voting

discrimination in a great majority of the States . . . affected by the . . . Act," and had created a

formula that was "relevant to the problem of voting discrimination." Id. at 329. "No more was

required," the Court said, "to justify the application to these areas of Congress' express powers

under the Fifteenth Amendment." Id. at 330.

Although Section 5 was originally intended to be in effect for only five years, Congress

has reauthorized Section 5 on four occasions -- first in 1970 (for five years), then in 1975 (for

seven years), again in 1982 (for 25 years), and most recently in 2006 (for 25 years). See Nw.

Austin II, 129 S. Ct. at 2510. When Section 5 was reauthorized in 1970 and again in 1975,

Section 4(b)'s coverage formula was amended each time, first to include (1) jurisdictions that

maintained a voting test or device as of November 1, 1968, and had less than 50% voter

registration or turnout in the 1968 presidential election; and then to add (2) jurisdictions that

maintained a voting test or device as of November 1, 1972, and had less than 50% voter

registration or turnout in the 1972 presidential election. See Pub. L. No. 91-285, 84 Stat. 314,

315 (1970) ("1970 Amendments"); Pub. L. No. 94-73, 89 Stat. 400, 401 (1975) ("1975

Amendments"). In the 1975 Amendments, Congress also added Section 4(f) to the Act, which

bars voting discrimination against language minorities and expands the definition of "test or

device" in Section 4 to include the provision of English-only voting materials in jurisdictions

where more than 5% of the voting-age population are members of a single language minority.

See 1975 Amendments § 203, 89 Stat. at 401-02 (codified as amended at 42 U.S.C. § 1973b(f)).

Five years after the enactment of the 1975 Amendments, the Supreme Court was again

confronted with a challenge to the constitutionality of Section 5, and confirmed that the

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provision's reauthorization constituted a permissible exercise of Congress's Fifteenth Amendment

enforcement authority. See City of Rome, 446 U.S. at 182. Just as Shelby County has argued

here with respect to the 2006 reauthorization of Section 5, Rome, Georgia, argued there that

"even if the Act and its preclearance requirement were appropriate means of enforcing the

Fifteenth Amendment in 1965, they had outlived their usefulness by 1975, when Congress

extended the Act for another seven years." 446 U.S. at 180. The Supreme Court, however,

declined Rome's "invitation to overrule Congress' judgment that the 1975 extension was

warranted." Id. Acknowledging the significant gains that had been made in minority political

participation since 1965, the Court nonetheless expressed concern that "'[a]s registration and

voting of minority citizens increases [sic], other measures may be resorted to which would dilute

increasing minority voting strength.'" Id. at 181 (quoting H.R. Rep. No. 94-196, at 10-11

(1975)). The Court emphasized that the Voting Rights Act had been enacted to remedy nearly a

century of racial discrimination in voting, and that the 1975 extension of the Act's temporary

provisions occurred just ten years after the Act's passage. Id. at 182. Thus viewed, the Court

found "Congress's considered determination that at least another 7 years of statutory remedies

were necessary to counter the perpetuation of 95 years of pervasive voting discrimination" to be

both "unsurprising and unassailable." Id.

Two years after City of Rome, Congress reauthorized Section 4(b) and Section 5 a third

time, and in so doing liberalized the procedures for bailout in several significant ways. Prior to

1982, only covered states (such as Alabama) or separately-covered political subdivisions (such as

individual North Carolina counties) were eligible to seek bailout -- even though all political

subdivisions within covered states were required to seek preclearance for their proposed electoral

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changes. See Nw. Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 227-28 (D.D.C.

2008) ("Nw. Austin I"), rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009). After the

1982 Amendments, political subdivisions within covered states (such as, for example, Shelby

County) could themselves petition for bailout. See Pub. L. No. 97-205 § 2(b)(2), 96 Stat. 131,

131 ("1982 Amendments") (codified as amended at 42 U.S.C. § 1973b(a)(1)). Moreover, the

1982 Amendments changed the substantive criteria for bailout so that jurisdictions with "clean"

voting rights records over the previous ten years were bailout-eligible; under prior versions of the

Act, there had been no such "bailout opportunity for jurisdictions that eliminated discriminatory

voting tests and practices that [had been] used at the time of initial coverage." Nw. Austin I, 573

F. Supp. 2d at 228 (internal quotation marks and citation omitted) (brackets in original). In this

manner, the 1982 Amendments created an incentive for "those jurisdictions with post-1965

histories of discrimination . . . to improve their voting rights records." Id.

The 1982 Amendments also extended the Act's temporary provisions for the longest

period of time to date. Whereas the 1970 and 1975 Amendments had extended the Act's

temporary provisions for only five and seven years, respectively, the 1982 Amendments extended

Section 5 and Section 4(b) for a full 25 years. See Nw. Austin II, 129 S. Ct. at 2510. The 1982

Amendments did not, however, change the coverage formula in Section 4(b). See 1982

Amendments, 96 Stat. at 131-133.

II. The 2006 Reauthorization of Section 5 and Section 4(b)

As a result of the 25 year extension imposed by the 1982 Amendments, Section 5 and the

Act's other temporary provisions were set to expire in 2007. Hence, in the fall of 2005, the

House Committee on the Judiciary began to examine "the effectiveness of the temporary

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provisions of the VRA over the last 25 years" in order to determine whether another renewal of

the Act's temporary provisions was warranted. See H.R. Rep. No. 109-478, at 5. The result was

"one of the most extensive legislative records in the Committee on the Judiciary's history." Id.

From October 2005 through May 2006, the House Judiciary Committee held ten

oversight hearings and two legislative hearings before the Subcommittee on the Constitution, at

which it heard from 46 witnesses and assessed over 12,000 pages of testimony, documentary

evidence, and statistical analyses. Id. The Subcommittee on the Constitution received and

incorporated into the legislative record lengthy reports from several civil rights organizations and

voting rights scholars, including: (1) a report by the ACLU's Voting Rights Project, assessing 293

cases involving allegations of voting discrimination since 1982, see 1 Evidence of Continued

Need 378-1270 (Laughlin McDonald and Daniel Levitas, The Case for Extending and Amending

the Voting Rights Act: Voting Rights Act Litigation, 1982-2006 (Mar. 2006)) (hereinafter,

"ACLU Report"); (2) a report by the National Commission on the Voting Rights Act, compiling

evidence of voting discrimination since 1982 based on testimony gathered at ten field hearings

across the country, as well as "governmental, legal, media and scholarly sources," see id. at 121

(Nat'l Comm'n Report); and (3) a study conducted by Professor Ellen Katz and the Voting Rights

Initiative of the University of Michigan Law School, which analyzed 323 post-1982 lawsuits that

raised claims under Section 2 of the Voting Rights Act, see Impact and Effectiveness 974 (Ellen

Katz, Documenting Discrimination in Voting: Judicial Findings Under Section 2 of the Voting

Rights Act Since 1982 (Nov. 2005)) (hereinafter, "Katz Study").

The Senate Judiciary Committee held nine of its own hearings to discuss the

reauthorization of the Act's temporary provisions, at which it, too, received testimony from 46

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witnesses, including experienced civil rights litigators, law professors, and Department of Justice

attorneys. See S. Rep. No. 109-295, at 2-4, 10 (2006). All told, the legislative record compiled

by the two houses is over 15,000 pages in length, and includes "statistics, findings by courts and

the Justice Department, and first-hand accounts of discrimination." See id. at 10. On the basis of

this extensive record, Congress determined that "40 years has not been a sufficient amount of

time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the

dictates of the 15th amendment." See Pub. L. No. 109-246, § 2(b)(7), 120 Stat. 577, 578 (2006)

("2006 Amendments"). Despite the effectiveness of Section 5 in deterring some attempts at

voting discrimination, the House Judiciary Committee found that "instances of discrimination

and efforts to discriminate against minority voters continue, thus justifying reauthorization of the

VRA's temporary provisions." H.R. Rep. No. 109-478, at 24-25.

As evidence of continued discrimination in voting, Congress pointed to the "hundreds of

objections" to voting changes that were interposed by the Attorney General since 1982; the

number of voting changes withdrawn from consideration after so-called "more information

requests" from the Attorney General; the number of "section 5 enforcement actions undertaken

by the Department of Justice in covered jurisdictions since 1982," in which the Department has

sought to compel jurisdictions to submit their voting changes for preclearance; the number of

requests for preclearance that have been denied by three-judge panels of this Court; the

"continued filing of section 2 cases" in covered jurisdictions; the existence of racially polarized

voting "in each of the jurisdictions covered by the expiring provisions" of the Act; and "the tens

of thousands of Federal observers dispatched to monitor polls" in covered jurisdictions.

See 2006 Amendments § 2(b)(3)-(4), (8), 120 Stat. at 577-78. Such evidence, Congress found,

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"demonstrates that, without the continuation of the Voting Rights Act of 1965 protections, racial

and language minority citizens will be deprived of the opportunity to exercise their right to vote,

or will have their votes diluted, undermining the significant gains made by minorities in the last

40 years." 2006 Amendments § 2(b)(9), 120 Stat. at 578.

Hence, Congress passed H.R. 9 -- entitled the Fannie Lou Hamer, Rosa Parks, and

Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 -- which

reauthorized Section 5 (and the coverage formula in Section 4(b)) for another 25 years. See 2006

Amendments § 4; 42 U.S.C. § 1973b(a)(8). The congressional support for the Act's 2006

reauthorization was even more "overwhelming" than it had been for the Act's passage in 1965.

Whereas the 1965 Act passed by a vote of 328 to 74 in the House and 79 to 18 in the Senate, see

Katzenbach, 383 U.S. at 309, the 2006 Amendments passed by a vote of 390 to 33 in the House

and 98 to 0 in the Senate, see 152 Cong. Rec. H5207 (daily ed. July 13, 2006); 152 Cong. Rec.

S8012 (daily ed. July 20, 2006). President George W. Bush then signed the bill into law on July

27, 2006. See 120 Stat. at 581.

In addition to extending the operation of Section 5, the 2006 Amendments made two

substantive changes to the Act's preclearance standard. First, 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 Sch. Bd., 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

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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, 425 U.S.

at 141 (noting that "the purpose of s[ection] 5 has always been 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 Voting Rights Act: Section 5 – Preclearance Standards, Hearing before the

Subcomm. on the Constitution of the House Comm. on the Judiciary, 109th Cong. 12 (Nov. 1,

2005) (hereinafter, "Preclearance Standards") (prepared statement of Mark A. Posner)

(hereinafter, "Posner Prepared Statement"). 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

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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.

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 2006 Amendments § 5(c), 120 Stat. at 581; 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 10). 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

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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 "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

2006 Amendments § 5(b), 120 Stat. at 581; 42 U.S.C. § 1973c(b).

For present purposes, even more significant than the substantive changes that Congress

made in 2006 to Section 5's preclearance standard were the proposed changes that Congress

considered -- but ultimately, did not make -- to Section 4(b)'s coverage formula. During the 2006

reauthorization hearings, there was extensive discussion of the potential need to revise the Act's

coverage formula to take account of changed circumstances since 1975, when the formula had

last been updated. Several Senators asked members of the academic community whether they

believed Section 4(b)'s "trigger" should be based on voter registration and turnout data from the

2000 and 2004 presidential elections, rather than data from the 1964, 1968, and 1972 elections.

See, e.g., Continuing Need 48-49 (responses of Anita S. Earls to questions submitted by Senators

Coburn, Cornyn, Leahy, and Kohl) ("Earls Responses"); id. at 76, 85-86 (responses of Ronald

Keith Gaddie to questions submitted by Senators Kohl, Cornyn, and Coburn) ("Gaddie

Responses"); id. at 99-100, 103-04 (Karlan Responses); id. at 110-12 (responses of Richard H.

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Pildes to questions submitted by Senators Specter, Cornyn, Coburn, and Kohl) ("Pildes

Responses"); Introduction to Expiring Provisions 36, 38 (responses of Richard L. Hasen to

questions submitted by Senators Specter, Cornyn, and Sessions) ("Hasen Responses"); id. at 76

(responses of Samuel Issacharoff to questions submitted by Senators Specter, Sessions, and

Cornyn) ("Issacharoff Responses").

Many voting rights scholars expressed the view that some sort of "updated trigger is

called for." See, e.g., Continuing Need 85 (Gaddie Responses); Introduction to Expiring

Provisions 36 (Hasen Responses) (explaining that "Congress should update the coverage

formula based on data indicating where intentional state discrimination in voting on the basis of

race is now a problem or likely to be one in the near future"); Introduction to Expiring Provisions

13 (statement of Samuel Issacharoff) (noting that a trigger based on "voter turnout figures from

1964 . . . risks appearing constitutionally antiquated by the proposed next expiration date of

2032"). But almost all agreed that updating the formula on the basis of voter turnout and

registration data from the 2000 and 2004 presidential elections would be ill-advised. As one law

professor explained, such a proposal "rest[s] on a fundamental misperception of the triggers,"

since Congress "did not pick the 1964, 1968, or 1972 elections as triggers because it thought

something distinctive happened in any of those elections." See Continuing Need 99 (Karlan

Responses). Rather, the use of election data from those years -- in conjunction with the presence

of a prohibited voting test or device -- had served only as a proxy for identifying those

"jurisdictions that had a long, open, and notorious history of disenfranchising minority citizens

and diluting their voting strength whenever they did manage to register and cast ballots." Id.; see

also Continuing Need 110 (Pildes Responses). For this reason, most scholars who testified

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before Congress were skeptical as to whether "tinkering with the coverage dates is necessarily the

best way to make the Act more current." Introduction to Expiring Provisions 76 (Issacharoff

Responses); see also Continuing Need 110 (Pildes Responses) (stating that "[m]echanically

updating the coverage formula in this way would . . . not tie coverage appropriately to where

problems are occurring today").

Nevertheless, the only amendment that was ultimately offered as a possible means of

making Section 4(b)'s coverage formula more "current" proposed to do just that. Specifically,

Representative Charlie Norwood of Georgia introduced an amendment that would have created a

"rolling test" for coverage based on voter turnout in the three most recent presidential elections.

See H. R. Rep. No. 109-554, at 2 (2006). Under the Norwood Amendment, a jurisdiction would

only be subject to preclearance if it had "a discriminatory test in place or voter turnout of less

than 50% in any of the three most recent presidential elections." See id.

The House's reaction to the Norwood Amendment was overwhelmingly negative.

Representative James Sensenbrenner, Chairman of the House Judiciary Committee, decried the

Amendment, claiming that it "not only guts the bill, but turns the Voting Rights Act into a farce."

See 152 Cong. Rec. H5181 (daily ed. July 13, 2006). Although over 1,000 counties still would

have been subject to preclearance under the Norwood Amendment's proposed formula, Hawaii

would have been the only state covered in its entirety -- even though Hawaii has no discernible

history of voting discrimination. See 152 Cong. Rec. H5179-81. Opponents of the Amendment

condemned such results as evidence of the Amendment's "absurdity," and expressed concern that

by severing Section 4(b)'s "connection to jurisdictions with proven discriminatory histories," the

Amendment would place Section 5 in constitutional jeopardy. See 152 Cong. Rec. H5181.

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Ultimately, the Norwood Amendment was defeated, and the existing coverage formula in

Section 4(b) remained intact. See 152 Cong. Rec. H5204; see also James Thomas Tucker, The

Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J.

LEGIS. 205, 254-55 (2007) (describing the debate over the Norwood Amendment). Under that

formula, which remains in existence today, a jurisdiction is subject to preclearance if it

maintained a voting test or device in 1964, 1968, or 1972, and had voter turnout or registration

below 50% in that year's presidential election. See 42 U.S.C. § 1973b(b). Currently, there are 16

states covered in whole or in part by Section 4(b), and therefore subject to preclearance under

Section 5. See 28 C.F.R. pt. 51, app. Alabama, Alaska, Arizona, Georgia, Louisiana,

Mississippi, South Carolina, Texas, and Virginia are covered in their entirety, while portions of

California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota

are also covered. Id.

III. Northwest Austin

Shortly after the 2006 Amendments became effective, a Texas municipal utility district

brought suit, seeking to bail out of the Act's requirements or, in the alternative, to challenge

Section 5 on its face as "an unconstitutional overextension of Congress's enforcement power to

remedy past violations of the Fifteenth Amendment." See Nw. Austin I, 573 F. Supp. 2d at 230

(internal quotation marks and citation omitted). Because the plaintiff-district sought a

declaratory judgment that it was eligible for bailout, a three-judge panel of this Court was

convened to hear the case. See id. (citing 42 U.S.C. § 1973b(a)(5)). The court first concluded

that the district was not a "political subdivision" under Section 14(c)(2) of the Act, and thus

could not petition for bailout pursuant to Section 4(a), which only authorizes states and "political

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subdivisions" to seek bailout. See id. at 230-35; see also § 1973b(a)(1).

The court then proceeded to address the merits of the plaintiff's facial constitutional

challenge to the 2006 reauthorization of Section 5. Nw. Austin I, 573 F. Supp. 2d at 235-79.

The court began by identifying the types of evidence of voting discrimination upon which

Congress had relied in deciding to reauthorize Section 5 in 2006, which included evidence of (1)

racial disparities in voter registration and turnout; (2) the number of minority elected officials;

(3) objections to proposed voting changes under Section 5; (4) "more information requests" by

the Attorney General in response to Section 5 preclearance submissions; (5) judicial preclearance

suits brought by covered jurisdictions; (6) Section 5 enforcement actions brought by the Attorney

General; (7) Section 2 litigation; (8) the dispatch of federal election observers; (9) racially

polarized voting; and (10) Section 5's deterrent effect. Id. at 247. In a lengthy opinion replete

with citations to the legislative record, the court analyzed each of these categories of evidence to

determine whether there was sufficient proof of "contemporary discrimination in voting to justify

Congress's decision to subject covered jurisdictions to section 5 preclearance for another twenty-

five years." Id. at 265. Concluding that the legislative record did, in fact, contain "extensive

contemporary evidence of intentional discrimination," id. at 266, the court decided there was "no

basis for overturning Congress's judgment that preclearance - 'a vital prophylactic tool[]' -

remains necessary," id. at 279 (quoting H.R. Rep. No. 109-478, at 21).

On appeal, however, the Supreme Court reversed and remanded. In a decision that has

since been criticized by some as "a questionable application of the doctrine of 'constitutional

avoidance,'" see Richard L. Hasen, Constitutional Avoidance and Anti-Avoidance by the Roberts

Court, 2009 SUP . CT . REV . 181 (2009); see also Ellen Katz, From Bush v. Gore to NAMUDNO:

-25-

A Response to Professor Amar, 61 FLA . L. REV . 991, 992-93 (2009) (describing the Court's

"statutory construction" of the bailout provision in Nw. Austin II as "contrived"), Justice Roberts,

writing for an eight-justice majority, sidestepped the "big question" of Section 5's

constitutionality by instead resolving the case on narrower, statutory grounds, see Nw. Austin II,

129 S. Ct. at 2508. Specifically, the Court found that the plaintiff-district qualified as a "political

subdivision" eligible to petition for bailout -- even though it did not register voters and was

therefore not a political subdivision as that term is defined in Section 14(c)(2) of the Act. See 42

U.S.C. § 1973l(c)(2) (defining "political subdivision" to include "any county or parish" or "any

other subdivision of a State which conducts registration for voting").

According to the Court, "the statutory definition of 'political subdivision' in § 14(c)(2)

does not apply to every use of the term 'political subdivision' in the Act." Nw. Austin II, 129 S.

Ct. at 2515. Rather, the Court explained, the phrase "political subdivision" in Section 4(a) has a

"broader" meaning than that set forth in Section 14(c)(2), and hence "all political subdivisions -

not only those described in § 14(c)(2) - are eligible to file a bailout suit" under Section 4(a). Id.

at 2515-17 (emphasis added). As a political subdivision of Texas "in the ordinary sense of the

term," the plaintiff-district was thus eligible to seek bailout. Id. at 2513. And because the district

had framed its constitutional challenge to the 2006 reauthorization of Section 5 "as being 'in the

alternative' to its statutory argument" for bailout, the majority saw no need to resolve the merits

of the district's constitutional challenge. Id.

But the majority did take the opportunity to voice some concerns about the

constitutionality of Section 5 and Section 4(b), and thereby presaged future challenges to Section

5 like that raised here by Shelby County. The Court in Nw. Austin II emphasized the substantial

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"federalism costs" imposed by Section 5, as well as the "dramatic improvements" in minority

voter turnout and registration since the Act's passage. Id. at 2511. "Things have changed in the

South," the Court wrote, explaining that minorities now register and vote at rates that "approach

parity" with those of non-minorities, and that minority candidates "hold office at unprecedented

levels." Id. The Court conceded that these "improvements are no doubt due in significant part to

the Voting Rights Act itself, and stand as a monument to its success," but made clear that "[p]ast

success alone . . . is not adequate justification to retain the preclearance requirements." Id.

The Court also raised concern about the continued constitutionality of the Act's coverage

formula, noting that it is "based on data that is now more than 35 years old, and there is

considerable evidence that it fails to account for current political conditions." Id. at 2512. The

Court cited the fact that the "racial gap in voter registration and turnout is lower in the States

originally covered by § 5 than it is nationwide." Id. Although the Court did not specify the

precise nature of the differences between covered and non-covered jurisdictions that would be

constitutionally necessary to justify Section 5's continued selective application, it did state that "a

departure from the fundamental principle of equal sovereignty requires a showing that a statute's

disparate geographic coverage is sufficiently related to the problem that it targets." Id. at 2512.

After identifying "serious constitutional questions" raised by the Act's coverage formula

and preclearance requirement, however, the majority refrained from answering them. Id. at 2513.

But Justice Thomas did not. Writing separately as the lone dissenter, he explained that he would

have "decided the constitutional issue presented" and concluded "that the lack of current

evidence of intentional discrimination with respect to voting renders § 5 unconstitutional." Id. at

2517, 2519 (Thomas, J., concurring in judgment in part, dissenting in part). According to Justice

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Thomas, "the constitutionality of § 5 has always depended on the proven existence of intentional

discrimination so extensive that elimination of it through case-by-case enforcement would be

impossible." Id. at 2524. He went on to explain that this kind of extensive intentional

discrimination in voting -- which led the Court to uphold the constitutionality of Section 5 on

prior occasions -- "no longer exists," citing the high minority voter registration rates in states

such as Alabama, Louisiana, and Mississippi. Id. at 2525. Justice Thomas dismissed evidence of

the so-called "second generation barriers" to voting upon which Congress had relied, noting that

evidence of Section 5 enforcement actions, Section 2 suits, and federal observer coverage "bears

no resemblance to the record initially supporting § 5, and is plainly insufficient to sustain such an

extraordinary remedy." Id. at 2526. With respect to evidence of intentional voting

discrimination contained in the 2006 legislative record and cited by the three-judge court, Justice

Thomas found that these "discrete and isolated incidents" fell short of a "coordinated and

unrelenting campaign to deny an entire race access to the ballot." Id. "Perfect compliance with

the Fifteenth Amendment's substantive command is not now - nor has it ever been - the yardstick

for determining whether Congress has the power to employ broad prophylactic legislation to

enforce that Amendment," he explained. Id.

IV. Shelby County, Alabama

Echoing the arguments of Justice Thomas, Shelby County brought this suit on April 27,

2010, asserting that "it is no longer constitutionally justifiable for Congress to arbitrarily impose

on Shelby County and other covered jurisdictions disfavored treatment by forcing them to justify

all voting changes to federal officials in Washington, D.C. for another twenty five years." See

Compl. ¶ 35. Shelby County's history under the Voting Rights Act is extensive and forms a

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relevant backdrop to this case. As a political subdivision of Alabama, Shelby County has been

subject to preclearance since 1965, based on the Attorney General's determination that Alabama

used a prohibited voting test or device on November 1, 1964, and had voter turnout of less than

50% in the 1964 presidential election. See 28 C.F.R. pt. 51 app.; 30 Fed. Reg. 9897 (Aug. 7,

1965); see also 42 U.S.C. § 1973b, § 1973c, § 1973l(c)(2); Compl. ¶¶ 28-29. From 1965 to the

filing of this suit, the Department of Justice has received at least 682 preclearance submissions

from Shelby County and jurisdictions located wholly or partially within Shelby County.

See Def.'s Mot. for Summ. J. ("Def.'s Mot.") [Docket Entry 54], Ex. 4, Decl. of Robert S.

Berman ("Berman Decl.") ¶ 4. Shelby County itself has submitted at least 69 proposed voting

changes to the Attorney General for preclearance. Id. ¶ 5.

Since 1965, the Department has lodged objections to five proposed voting changes

submitted by jurisdictions located wholly or partially within Shelby County. Id. ¶ 8. Shelby

County was also a defendant in the so-called Dillard litigation in the 1980s, in which black

residents of Alabama challenged the at-large system used to elect Alabama county

commissioners as a violation of Section 2 of the Voting Rights Act. See Dillard v. Crenshaw

Cnty., 640 F. Supp. 1347, 1352-54 (M.D. Ala. 1986); see also Dillard v. Baldwin Cnty. Bd. of

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

Dillard v. Crenshaw Cnty., 748 F. Supp. 819, 821-23 (M.D. Ala. 1990) (describing Shelby

County's involvement in Dillard). Although Shelby County was not one of the original nine

defendants in Dillard, see Dillard, 640 F. Supp. at 1352, the plaintiffs in Dillard eventually raised

claims against a total of 183 Alabama cities, counties, and school boards that employed at-large

methods of election, including Shelby County, see Dillard, 686 F. Supp. at 1461.

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In the original Dillard lawsuit, the court concluded that the Alabama legislature had

"engaged in a pattern and practice of using at-large election systems as an instrument for race

discrimination." 640 F. Supp. at 1361. The court explained that the challenged at-large electoral

systems had been created against the backdrop of Alabama's "unrelenting historical agenda,

spanning from the late 1800's to the 1980's, to keep its black citizens economically, socially, and

politically downtrodden, from the cradle to the grave." Id. at 1357. Moreover, the court noted,

the Alabama legislature had "consistently enacted at-large systems for local governments during

periods when there was a substantial threat of black participation in the political process." Id. at

1361. When viewed in light of the state's "undisputed history of racial discrimination," it became

clear that the creation of at-large methods of election -- which did, in fact, have an "adverse racial

impact" -- "was not adventitious but rather racially inspired." Id. Hence, the court found that

preliminary injunctive relief with respect to the counties then defending their at-large election

systems was warranted. Id. at 1373.

Despite the adverse judgment against the other Alabama counties with at-large electoral

systems in place, Shelby County continued to deny that its at-large method for electing county

commissioners violated Section 2, and the related case against it proceeded to trial. See Dillard,

748 F. Supp. at 822. While the case was under submission, however, Shelby County entered into

a consent decree with the plaintiffs, under which it agreed to change its at-large electoral system

to a "single-member district scheme" with one majority-black district. Id.

Most recently, on August 25, 2008, the Attorney General objected to a redistricting plan

and 177 annexations submitted by the city of Calera, located within Shelby County. See Berman

Decl. ¶¶ 9-10; id., Att. A. Calera's redistricting plan and annexations would have eliminated the

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city's sole majority-black district, which had been created pursuant to the consent decree in

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

Berman Decl., Att. A. In its preclearance submission to the Attorney General, Calera conceded

that it had, in fact, already adopted the 177 annexations without receiving advance preclearance

for them. See id.; see also Berman Decl. ¶ 9. After the Attorney General lodged an objection to

the annexations and the city's 2008 redistricting plan, Calera nonetheless proceeded to conduct

elections based on these unprecleared voting changes. See Berman Decl. ¶ 11; id., Att. B

("Calera Compl.") ¶ 18.; id., Att. C ("Calera Consent Decree") at 3. The elections held under the

objected-to plan and annexations resulted in the defeat of the African-American incumbent

councilman. See id., Att. D.

The Attorney General responded by bringing a Section 5 enforcement action, seeking to

prohibit Calera from certifying the results of its elections "based on the district boundaries and

electorate to which the Attorney General ha[d] interposed a timely objection unless and until

preclearance under Section 5 . . . is obtained." Calera Compl. at 7. The case was temporarily

resolved through a consent decree, and the Attorney General subsequently withdrew his objection

to the 177 annexations. See Calera Consent Decree; see also Berman Decl. ¶ 15; id., Att. F. The

Attorney General did not, however, withdraw his objection to the 2008 redistricting plan. See

Berman Decl. ¶ 15; id., Att. F.

Because of the Attorney General's objection to Calera's proposed voting changes, Shelby

County argues that it is not eligible for bailout. Compl. ¶ 34(b) (citing 42 U.S.C. §

-31-

1973b(a)(1)(E)).4 As a result of its alleged ineligibility for bailout and the 2006 reauthorization

of Section 5, Shelby County claims that it now "will have to regularly seek preclearance in the

near future" -- a process that, historically, has required the expenditure of "significant taxpayer

dollars, time, and energy." See id. ¶¶ 32-33; Pl.'s Mot. for Summ. J. ("Pl.'s Mot.") [Docket Entry

5], Decl. of Frank C. Ellis, Jr. ("Ellis Decl.") ¶¶ 7-8.

Shelby County does not challenge any specific application of Section 5 to one of its

proposed voting changes; rather, it seeks a declaration that Section 5 and Section 4(b) are facially

unconstitutional, as well as a permanent injunction prohibiting the Attorney General from

enforcing these provisions. See Compl. ¶¶ 1, 44(a)-(b). In Count I, Shelby County alleges that in

reauthorizing Section 5 "for another twenty-five years in 2006, Congress lacked the evidence of

intentional discrimination that warranted the enactment of the VRA in 1965 and its extensions in

1970, 1975, and 1982." Id. ¶ 38(c). Hence, Shelby County argues, because there is neither

"'congruence and proportionality' . . . nor even a 'rational relationship' between the evidence

compiled in support of the latest extension of Section 5 and the burdens imposed by that

provision . . . Section 5 . . . exceeds Congress's authority under the Fourteenth and Fifteenth

Amendments," id. ¶ 38(d) (internal citations omitted), "and, therefore, violates the Tenth

Amendment and Article IV of the Constitution," id. ¶ 37. In Count II, Shelby County similarly

4

Shelby County also maintains that it is ineligible for bailout because it held several

special elections under the authority of Act 65-816 (the "Planning Act" of 1965) between 1965

and 2003. See Compl. ¶ 34(a)(i)-(iii). During that time, the Planning Act had not been

precleared by the Department of Justice. Id. ¶ 34(a)(ii)-(iii). Under Section 4(a), a covered

jurisdiction is only eligible for bailout if it has complied "with the requirement that no change

covered by . . . [Section 5] has been enforced without preclearance." See 42 U.S.C. §

1973b(a)(1)(D). Because Shelby County held special elections under the authority of the

Planning Act (i.e., "enforced" the Act) without first receiving preclearance, Shelby County

maintains that it is also ineligible for bailout pursuant to 42 U.S.C. § 1973b(a)(1)(D).

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challenges the constitutionality of the 2006 reauthorization of Section 4(b)'s coverage formula,

arguing that "Congress's reliance . . . on voting practices, voter registration data, and presidential

election data from 1964, 1968, and 1972 as the trigger for the preclearance obligation of Section

5 is not an 'appropriate' means of enforcing the Fifteenth Amendment." Id. ¶ 42(a). Because

"Section 4(b)'s coverage formula is not 'sufficiently related to the problem that it targets,'" Shelby

County maintains that Section 4(b), like Section 5, exceeds Congress's Fourteenth and Fifteenth

Amendment enforcement authority, and violates the principle of equal sovereignty embodied in

the Tenth Amendment and Article IV. Id. ¶ 43(c).

Shortly after filing its complaint, Shelby County filed a motion for summary judgment.

Several civil rights groups and Shelby County residents responded by filing motions seeking to

intervene as defendants, which the Court granted. See 8/25/10 Order [Docket Entry 29].

Defendant and defendant-intervenors then asked the Court to deny Shelby County's summary

judgment motion as premature, or, in the alternative, to grant limited discovery pursuant to Fed.

R. Civ. P. 56(f). Denying the request, this Court found that there was no need for discovery on

any of the three issues upon which discovery was sought. With respect to the first issue -- Shelby

County's standing to sue -- the Court explained that no discovery was warranted since defendant

"was unable to articulate any reason why a covered jurisdiction subject to Section 5's

preclearance requirement - such as Shelby County - would lack standing to bring this type of

action." Shelby Cnty. v. Holder, 270 F.R.D. 16, 18 (D.D.C. 2010). The Court next rejected

defendant's contention that discovery was needed to determine whether Shelby County was, in

fact, eligible for bailout, since Shelby County did not seek bailout. Id. at 19. Finally, the Court

held that there was no need for discovery on Shelby County's constitutional challenge because it

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was purely facial -- not "as applied" -- and it therefore must "rise or fall on the record that

Congress created when it extended [the Voting Rights Act's temporary provisions] in 2006." Id.

at 21. Accordingly, the Court set a schedule for the filing of dispositive motions, which

generated over 1,000 pages of briefs and exhibits and culminated in a lengthy motions hearing on

February 2, 2011.

*****

This Court does not write on a clean slate in assessing plaintiff's facial constitutional

challenge to the 2006 reauthorization of Section 5 and Section 4(b). To date, one Supreme Court

Justice has declared that he would strike down Section 5 as an unconstitutional exercise of

Congress's Fifteenth Amendment enforcement power, see Nw. Austin II, 129 S. Ct. at 2517-27

(Thomas, J., concurring in judgment in part, dissenting in part), while several other Justices have

voiced concerns about the continued vitality of the Act's coverage formula, see, e.g., Nw. Austin

II Oral Arg. Tr. at 36 (Apr. 29, 2009) (Alito, J., asking, "[w]ouldn't you agree that there is [sic]

some oddities in this coverage formula"); id. at 22 (Kennedy, J., inquiring whether there is

"anything in the record" addressing whether "these States that are now covered . . . are markedly

different from the noncovered jurisdictions"), and about the apparent never-ending nature of the

preclearance obligation, which was originally intended to last only through 1970, but which is

now scheduled to last through 2032, id. at 32 (Roberts, C.J., stating with respect to Section 5, "at

some point it begins to look like the idea is that this is going to go on forever"). At the same

time, a three-judge panel of this Court, after undertaking an exhaustive review of the legislative

record, concluded that there was sufficient evidence of modern-day, intentional discrimination in

voting to justify Congress's 2006 reauthorization of the preclearance obligation on covered

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jurisdictions for another 25 years. See Nw. Austin I, 571 F. Supp. 2d at 221-83. Keeping all

these views in mind, the Court will undertake its own assessment of the legislative record in

order to determine whether Congress exceeded its enforcement authority under the Fourteenth

and Fifteenth Amendments when it reauthorized Section 5 and Section 4(b) in 2006.

DISCUSSION

I. Threshold Issues

Three threshold issues are presented by this suit: (1) plaintiff's Article III standing; (2)

plaintiff's eligibility for bailout; and (3) the facial rather than as-applied nature of plaintiff's

claims. These three issues were, to some extent, already addressed in the prior Memorandum

Opinion in this case. See Shelby Cnty., 270 F.R.D. at 18-21. Nevertheless, given the "'well-

established principle . . . that normally the Court will not decide a constitutional question if there

is some other ground upon which to dispose of the case,'" Nw. Austin II, 129 S. Ct. at 2513

(quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 51 (1984)), the Court will briefly revisit each

of these issues to explain why none provides a valid basis for avoiding the merits of the facial

constitutional challenge raised here.

A. Standing

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

(1) an "injury in fact" that is "(a) concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical"; (2) "a causal connection between the injury and the conduct

complained of"; and (3) a likelihood "that the injury will be redressed by a favorable decision."

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation marks and

citations omitted). As a jurisdiction covered by Section 4(b), Shelby County maintains that it

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must expend "significant taxpayer dollars, time, and energy to meet its obligations under Section

5 of the VRA." Ellis Decl. ¶ 7. Shelby County's expenditure of time and money to ensure

compliance with Section 5 constitutes a "concrete and particularized" injury that is caused by the

continued operation of the statute, and that would be redressed by a decision declaring Section 5

facially unconstitutional and permanently enjoining its enforcement.

The mere fact that Shelby County does not challenge any specific objection to one of its

proposed electoral changes does not serve to render its claims "conjectural or hypothetical" for

purposes of Article III. See LaRoque v. Holder, --- F.3d ----, 2011 WL 2652441, at *10 (D.C.

Cir. 2011) (noting that a plaintiff need only demonstrate a "'substantial probability' of imminent

injury" to establish Article III standing to bring a facial constitutional challenge to Section 5).

Because Shelby County is a jurisdiction subject to Section 5, it will be forced to expend

resources obtaining preclearance for all of its future electoral changes, absent a decision from this

Court granting its requested relief.5 Shelby County therefore has alleged an injury that is both

"credible and immediate, and not merely abstract or speculative." See Navegar, Inc. v. United

States, 103 F.3d 994, 998 (D.C. Cir. 1997); see also Steffel v. Thompson, 415 U.S. 452, 459

(1974) (permitting plaintiff to challenge the legality of his potential arrest under a criminal

trespass statute where the plaintiff alleged threats of prosecution that were neither imaginary nor

speculative). Accordingly, Shelby County has standing to pursue its facial constitutional

challenges to Section 5 and Section 4(b).

5

In fact, Shelby County represented to the Court in July 2011 that it was in the process of

completing its decennial redistricting plan, and that it would need to expend time and resources

preparing a preclearance submission for the plan as early as last month, in the event that the

Court denied its motion for summary judgment. See Notice to the Court [Docket Entry 79].

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B. Bailout

Unlike the Texas municipal utility district in Nw. Austin, Shelby County has not framed

its constitutional challenge "as being 'in the alternative' to its statutory argument" for bailout.

Nw. Austin II, 129 S. Ct. at 2513. Indeed, Shelby County has expressly chosen not to petition for

bailout, based on its determination that such a petition would be futile. See Compl. ¶ 34.

Because Shelby County has not sought bailout under Section 4(a), a finding that Shelby County

was bailout-eligible would not obviate the need for this Court to assess the merits of Shelby

County's constitutional challenge, as was the case in Nw. Austin II. The Supreme Court's finding

in Nw. Austin II that the plaintiff-district was eligible for bailout served to "afford [the plaintiff-

district] all the relief it s[ought]," see 129 S. Ct. at 2513; here, however, a determination that

Shelby County was eligible for bailout would only relieve Shelby County of its preclearance

obligation if defendant or this Court could somehow "force Shelby County to accept bailout,"

which, as defendant correctly concedes, cannot be done. See Shelby Cnty., 270 F.R.D. at 19.6

6

Although the Court did not permit discovery into the question of Shelby County's

bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is

not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if,

during the ten years preceding its bailout request, "the Attorney General has not interposed any

objection . . . with respect to any submission by or on behalf of the plaintiff or any governmental

unit within its territory." 42 U.S.C. § 1973b(a)(1)(E) (emphasis added). The Attorney General

concedes that, in 2008, he interposed an objection to the proposed redistricting plan and

annexations submitted by the city of Calera, a "governmental unit" within Shelby County.

See Def.'s Mot. at 8; Berman Decl. ¶¶ 9-10. As a result of this objection, Shelby County would

not be eligible for bailout under Section 4(a)(1)(E), even if -- like the Texas municipal utility

district in Nw. Austin II -- it had chosen to pursue such a course as an "alternative" to its facial

constitutional challenge. Similarly, Shelby County concedes that it held several special elections

under the authority of Act 65-816 (the "Planning Act" of 1965) between 1965 and 2003.

See Compl. ¶ 34(a)(i)-(iii). During that time, the Planning Act had not been precleared by the

Department of Justice. Id. ¶ 34(a)(ii)-(iii). Under Section 4(a), a covered jurisdiction is only

eligible for bailout if it has complied "with the requirement that no change covered by . . .

[Section 5] has been enforced without preclearance." See 42 U.S.C. § 1973b(a)(1)(D). Because

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C. The Facial Nature of Plaintiff's Challenge

Finally, it is important to remember that Shelby County's suit presents only a facial -- and

not an as-applied -- challenge to the constitutionality of the 2006 reauthorization of Section 5 and

Section 4(b). The "distinction between 'as-applied' and 'facial' challenges is that the former ask

only that the reviewing court declare the challenged statute or regulation unconstitutional on the

facts of the particular case," Sanjour v. E.P.A., 56 F.3d 85, 92 n.10 (D.C. Cir. 1995), whereas the

latter ask the court to conclude that "'no set of circumstances exists under which [the statute]

would be valid,' or that the statute lacks any 'plainly legitimate sweep,'" United States v. Stevens,

130 S. Ct. 1577, 1587 (2010) (internal citations omitted). When a plaintiff brings both a facial

and an as-applied challenge to a statute, "the court must 'determine first whether the law is

constitutional as applied to the challenging party's conduct, and then only if the as-applied

challenge fails, . . . determine whether it is necessary to consider the facial challenge.'" Heller v.

Dist. of Columbia, 698 F. Supp. 2d 179, 188 n.10 (D.D.C. 2010) (internal citations omitted); see

also Bd. of Trs. of State Univ. of N.Y. v. Fox, 492 U.S. 469, 485 (1989) (explaining that "for

reasons relating both to the proper functioning of courts and to their efficiency, the lawfulness of

the particular application of the law should ordinarily be decided first").

Here, however, Shelby County has made clear that it is only seeking to challenge the

constitutionality of Section 5 and Section 4(b) on their face, and not as they have been applied to

Shelby County in any particular instance. See, e.g., Compl. ¶ 1 (seeking a declaratory judgment

that Section 4(b) and Section 5 "are facially unconstitutional") (emphasis added); Pl.'s Mot. at 17

Shelby County held special elections under the authority of the Planning Act, Shelby County is

also ineligible for bailout under 42 U.S.C. § 1973b(a)(1)(D).

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n.2 (describing plaintiff's challenge as facial); Shelby Cnty., 270 F.R.D. at 19 (finding that

discovery was "unwarranted" because "Shelby County brings only a facial challenge"). Because

Shelby County has chosen not to raise an as-applied challenge -- and indeed, has explicitly

waived its right to bring such a challenge, see Shelby Cnty., 270 F.R.D. at 19 -- the Court's

consideration of Shelby County's facial challenge is not premature. See Stevens, 130 S. Ct. at

1587 n.3 (rejecting contention that the Court's consideration of a facial constitutional challenge

was "premature" where "the constitutional argument [wa]s a general one" and there was no

"separate attack on a defined subset of the statute's applications").

II. Standard of Review

The Court must first determine the appropriate standard of review to use in evaluating

whether Congress exceeded its enforcement authority under the Fourteenth and Fifteenth

Amendments when it reauthorized Section 5 and Section 4(b) in 2006.7 The Attorney General,

relying on cases in which the Supreme Court has previously assessed the constitutionality of

Section 5, argues that "when Congress is legislatively enforcing the Fifteenth Amendment's

prohibition on race discrimination with respect to voting, the Court reviews the appropriateness

of that legislation under a deferential rationality standard." See Def.'s Mot. at 12 (citing

7

In addition to challenging the 2006 reauthorization of Section 5 and Section 4(b) as

exceeding Congress's Fourteenth and Fifteenth Amendment enforcement authority, Shelby

County argues that Section 5 and Section 4(b) impermissibly intrude on state sovereignty in

violation of the Tenth Amendment and Article IV of the Constitution. See Compl. ¶¶ 39, 41, 43.

The Supreme Court, however, has repeatedly rejected such federalism-based challenges to

Section 5, recognizing that the Reconstruction Amendments "were specifically designed as an

expansion of federal power and an intrusion on state sovereignty." See City of Rome, 446 U.S.

at 179; see also Lopez v. Monterey Cnty., 525 U.S. 266, 282 (1999) (noting that "the

Reconstruction Amendments by their nature contemplate some intrusion into areas traditionally

reserved to the States"). To the extent that Section 5 and Section 4(b) constitute "appropriate"

remedial enforcement legislation, then, their encroachment on state sovereignty is permissible.

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Katzenbach, 383 U.S. at 324; City of Rome, 446 U.S. at 175-77; Georgia v. United States, 411

U.S. 526, 535 (1973); Lopez, 525 U.S. at 282-85). Shelby County, on the other hand, urges this

Court to apply the "congruence and proportionality" framework first articulated by the Supreme

Court in City of Boerne v. Flores, 521 U.S. at 520, to assess legislation enacted pursuant to § 5 of

the Fourteenth Amendment, asserting that Boerne "applies just the same in Fifteenth Amendment

cases" because "[t]he enforcement clauses of the Fourteenth and Fifteenth Amendments are co-

extensive." See Pl.'s Mot. at 19; see also Pl.'s Reply in Supp. of Pl.'s Mot. for Summ. J. ("Pl.'s

Reply") at 2 (explaining that "[t]he Supreme Court has made clear that all enforcement

legislation is subject to congruence and proportionality review, and it has specifically relied on

the voting rights cases in adopting and applying this test").

The parties in Nw. Austin engaged in the same dispute regarding the proper standard of

review to apply in assessing the constitutionality of Section 5. See Nw. Austin II, 129 S. Ct. at

2512. Although the Supreme Court ultimately declined to resolve the issue, see id.; but see id. at

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

Boerne provides the framework for reviewing the constitutionality of Section 5), the three-judge

court below held that "Katzenbach's rationality standard governs this case," Nw. Austin I, 573 F.

Supp. 2d at 241.

That court described Katzenbach's "rationality standard" and Boerne's "congruence and

proportionality test" as "two distinct standards for evaluating the constitutionality of laws

enforcing the Civil War Amendments." 573 F. Supp. 2d at 235-36. After summarizing what it

characterized as "these two lines of cases," the court said that "the time has come to choose

between them." 573 F. Supp. 2d at 241. The court ultimately "chose" Katzenbach for two

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reasons (although it went on to find that Section 5 passed muster under both Katzenbach and the

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

Rome, which had "applied Katzenbach's rationality test," constituted controlling precedent

directly on point. Id. Although City of Rome pre-dates Boerne, the Nw. Austin I panel reasoned

that because neither Boerne nor any case since had questioned the standard of review utilized in

City of Rome, that standard had not been overruled. See id. at 242. Hence, the court concluded

that the type of review enunciated in Katzenbach and employed in City of Rome still governed

the plaintiff's challenge to the 2006 extension of Section 5, even assuming that Boerne had "cast

some doubt" on Katzenbach and City of Rome. Id. at 246. Second, the court pointed to the fact

that Boerne involved a challenge to Congress's enforcement authority under § 5 of the Fourteenth

Amendment, id. at 517, whereas Katzenbach and City of Rome involved challenges to Section 5,

which, "at its core," constitutes legislation enacted under § 2 of the Fifteenth Amendment, id. at

243-44. "Even if the City of Boerne cases changed the test for all statutes enacted pursuant to the

Fourteenth Amendment," the court explained, "those cases leave the Fifteenth Amendment

standard untouched." Id. at 243.

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

Boerne, and cases following Boerne reveals that the Supreme Court has not left the standard of

review for Fifteenth Amendment enforcement legislation "untouched"; moreover, it has not

established a "distinct standard" for evaluating Fourteenth Amendment enforcement legislation

different from that traditionally employed in the Fifteenth Amendment context. Rather, Boerne

merely explicated and refined the one standard of review that has always been employed to

assess legislation enacted pursuant to both the Fourteenth and Fifteenth Amendments. See

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Appellant's Br., Nw. Austin II, 2009 WL 453246, at *33 (Feb. 19, 2009) (explaining that "Boerne

and the cases following it do no more than elaborate and clarify the standard for reviewing

Congress's efforts to enforce the Reconstruction Amendments"). The question is not, then,

whether this Court, as "a district court bound by Supreme Court precedent," should follow

"Katzenbach and City of Rome even if . . . the City of Boerne cases cast some doubt on those

cases," Nw. Austin I, 573 F. Supp. 2d at 246. If this Court viewed Boerne and its enunciation of

the congruence and proportionality test as merely "casting doubt" on Katzenbach and City of

Rome, it would, indeed, still be obligated to follow those earlier cases, and leave to the Supreme

Court "the prerogative of overruling its own decisions," Rodriguez de Quijas v. Shearson/Am.

Express, Inc., 490 U.S. 477, 484 (1989). Rather, the question is whether, given the elaboration

of the Katzenbach standard that was undertaken by the Supreme Court in Boerne, this Court

should nonetheless adhere to the standard as first articulated in Katzenbach, simply because the

Boerne elaboration occurred in the Fourteenth Amendment context, not the Fifteenth. Such a

course would, in this Court's view, constitute a misunderstanding of Boerne. This Court will

therefore review the Supreme Court's evolving descriptions of the nature of Congress's

enforcement powers under the Reconstruction Amendments, as explicated in Katzenbach,

Boerne and later cases, to show that Boerne's congruence and proportionality framework reflects

a refined version of the same method of analysis utilized in Katzenbach, and hence provides the

appropriate standard of review to assess Shelby County's facial constitutional challenge to

Section 5 and Section 4(b).

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A. The "Virtually Identical" Enforcement Clauses of the Fourteenth and Fifteenth

Amendments

Section 5 of the Fourteenth Amendment provides that "Congress shall have the power to

enforce, by appropriate legislation, the provisions of this article," U.S. CONST . amend. XIV, § 5,

while § 2 of the Fifteenth Amendment states that "Congress shall have power to enforce this

article by appropriate legislation," U.S. CONST . amend. XV, § 2.8 Given the nearly identical

language and similar origin of these two Reconstruction Amendments, there would seem to be

"no reason to treat the enforcement provision of the Fifteenth Amendment differently than the

identical provision of the Fourteenth Amendment, and the Supreme Court has not held to the

contrary." Mixon v. State of Ohio, 193 F.3d 389, 399 (6th Cir. 1999); see also Hayden v. Pataki,

449 F.3d 305, 331 n.5 (2d Cir. 2006) (finding "no indication in Supreme Court precedent, or in

logic, that the Congress and the legislatures that enacted and ratified the Fourteenth and Fifteenth

Amendments intended that they be 'enforced' in different ways").

In fact, the Supreme Court has repeatedly emphasized -- both before, in, and after

Boerne -- that the nature of the enforcement power conferred by § 5 of the Fourteenth

Amendment is "virtually identical" to that conferred by § 2 of the Fifteenth Amendment. See Bd.

of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 373 n.8 (2001); see also Boerne, 521 U.S. at

518 (comparing Congress's Fourteenth Amendment enforcement authority to its "parallel power

to enforce the provisions of the Fifteenth Amendment"); Katzenbach v. Morgan, 384 U.S. 641,

651 (1966) (explaining that "Section 2 of the Fifteenth Amendment grants Congress a similar

8

In this Opinion, the Court uses "Section 5" to refer to Section 5 of the Voting Rights

Act, and "§ 5" to refer to the enforcement clause of the Fourteenth Amendment. Similarly, the

Court uses "Section 2" to refer to Section 2 of the Voting Rights Act, and § 2 to refer to the

enforcement clause of the Fifteenth Amendment.

-43-

power to [that of § 5 of the Fourteenth Amendment]," as both sections permit Congress to

"enforce by 'appropriate legislation' the provisions of that amendment"); Dep't of Human Res. v.

Hibbs, 538 U.S. 721, 742 n.1 (2003) (Scalia, J., dissenting) (noting that "Section 2 of the

Fifteenth Amendment is practically identical to § 5 of the Fourteenth Amendment"); Lopez, 525

U.S. at 294 n.6 (Thomas, J., dissenting) (explaining that while "City of Boerne involved the

Fourteenth Amendment enforcement power, we have always treated the nature of the

enforcement powers conferred by the Fourteenth and Fifteenth Amendments as coextensive");

City of Rome, 446 U.S. at 208 n.1 (Rehnquist, J., dissenting) (stating that "the nature of the

enforcement powers conferred by the Fourteenth and Fifteenth Amendments has always been

treated as coextensive").

Hence, when the Supreme Court in Katzenbach first examined whether Congress's

enactment of the Voting Rights Act exceeded its power to "enforce" the Fifteenth Amendment

"by appropriate legislation," the Court looked for guidance to Ex Parte Virginia -- a case

involving Congress's parallel enforcement power under § 5 of the Fourteenth Amendment. See

Katzenbach, 383 U.S. at 326-27 (citing Ex Parte Virginia, 100 U.S. 339, 345-46 (1879)). In Ex

Parte Virginia, the Supreme Court assessed the nature of Congress's power under the

enforcement clauses of the Thirteenth and Fourteenth Amendments,9 and explained that

"[w]hatever legislation is appropriate, that is, adapted to carry out the objects the amendments

have in view, whatever tends to enforce submission to the prohibitions they contain, and to

secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of

9

Section 1 of the Thirteenth Amendment abolishes slavery, and § 2 provides, in terms

identical to those in § 2 of the Fifteenth Amendment, that "Congress shall have power to enforce

this article by appropriate legislation." See U.S. CONST . amend. XIII.

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the laws against State denial or invasion, if not prohibited, is brought within the domain of

congressional power." Ex Parte Virginia, 100 U.S. at 346. Quoting this language, the Supreme

Court in Katzenbach rejected the contention that § 2 of the Fifteenth Amendment permits

Congress to "do no more than to forbid violations of the Fifteenth Amendment in general terms."

383 U.S. at 327. Rather, the Court explained, § 2 of the Fifteenth Amendment -- like § 5 of the

Fourteenth Amendment -- provides Congress with "full remedial powers" to enforce the

Amendment by "appropriate" legislation; that is, to pass legislation to make the Amendment's

protections "'fully effective.'" See id. at 326 (quoting Ex Parte Virginia, 100 U.S. at 345).

According to the Court in Katzenbach, "[t]he basic test to be applied in a case involving

s[ection] 2 of the Fifteenth Amendment" is the same as that to be applied "in all cases concerning

the express powers of Congress with relation to the reserved powers of the States." Id. As Chief

Justice Marshall said in McCulloch v. Maryland: "'Let the end be legitimate, let it be within the

scope of the constitution, and all means which are appropriate, which are plainly adapted to that

end, which are not prohibited, but consist with the letter and spirit of the constitution, are

constitutional.'" Id. (quoting McCulloch v. Maryland, 4 Wheat. 316, 421 (1819)).

After setting forth Congress's Fifteenth Amendment enforcement authority in these broad

terms, the Supreme Court in Katzenbach proceeded to engage in a careful analysis of whether

Section 5 and Section 4(b) constituted "appropriate" enforcement legislation, as that word is

defined in McCulloch v. Maryland and Ex Parte Virginia. With respect to the coverage formula

in Section 4(b), the Court acknowledged that Congress had confined the Act's most stringent

remedies -- such as preclearance -- to "a small number of States and political subdivisions which

in most instances were familiar to Congress by name." See Katzenbach, 383 U.S. at 328. The

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decision to target only certain sections of the country and not others was based on "evidence of

actual voting discrimination" in these areas, and the Court found it "acceptable" for Congress to

"limit its attention to the geographic areas where immediate action seemed necessary." Id. at

328-29. "Legislation need not deal with all phases of a problem in the same way," the Court

explained, "so long as the distinctions drawn have some basis in practical experience." Id. at

331. Because the distinctions drawn by the coverage formula in Section 4(b) had such a basis,

the Court found that the formula was "rational in both practice and theory." See id. at 330.

The Court also concluded that Section 5's preclearance requirement constituted a

"permissibly decisive" response to the problem of states "contriving new rules of various kinds

for the sole purpose of perpetuating voting discrimination in the face of adverse federal court

decrees." Id. at 335. Given the "voluminous" legislative record amassed by Congress during its

consideration of the Act, id. at 308, which contained ample evidence of "obstructionist tactics" in

covered jurisdictions, id. at 328, the Court noted that "Congress had reason to suppose that these

States might try similar maneuvers in the future in order to evade the remedies for voting

discrimination contained in the Act itself," thereby justifying the need for a prophylactic measure

like Section 5, see id. at 334-35. The Court determined, then, on the basis of the evidence of

voting discrimination in the record, that Congress had "exercised its powers under the Fifteenth

Amendment in an appropriate manner" when it enacted Section 5 and Section 4(b). Id. at 324.

The same year that it decided Katzenbach, the Supreme Court had occasion to re-examine

the nature of Congress's enforcement authority under § 5 of the Fourteenth Amendment, and in

so doing made clear that the test for reviewing exercises of Congress's Fourteenth and Fifteenth

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Amendment enforcement powers is the same. See Katzenbach v. Morgan, 384 U.S. at 651.10 In

Katzenbach v. Morgan, the Supreme Court addressed a Fourteenth Amendment challenge to

Section 4(e) of the Voting Rights Act, which guaranteed the right to vote to persons educated in

Puerto Rico who satisfied certain educational criteria but who could not read or write English.

Registered voters in New York challenged Section 4(e) insofar as it forbid New York from

enforcing its state election laws, which made the ability to read and write English a precondition

to voting. See id. at 643-45. Rejecting this challenge, the Supreme Court explained that § 5 of

the Fourteenth Amendment is a "positive grant of legislative power," which permits Congress to

"enforce" the Amendment by enacting legislation to prevent state action even if that state action

would not otherwise be "prohibited by the provision of the Amendment that Congress sought to

enforce." Id. at 648. Because there was a "basis" upon which Congress could have found that

New York's application of its English literacy requirement to deny the right to vote to non-

English speakers educated in Puerto Rico "constituted invidious discrimination in violation of the

Equal Protection Clause," id. at 656, Congress was entitled to respond to this state-sponsored

discrimination by passing Section 4(e), even assuming that Section 4(e) would prevent some

applications of New York's state election law that did not, in and of themselves, violate the

substantive provisions of the Fourteenth Amendment, see id. at 648.

The Supreme Court in Katzenbach v. Morgan explained the nature of Congress's

Fourteenth Amendment enforcement power with reference to South Carolina v. Katzenbach,

noting that § 2 of the Fifteenth Amendment "grants Congress a similar power to enforce by

10

The Court uses the shorthand "Katzenbach" to refer to Katzenbach v. South Carolina,

but employs the full case name for Katzenbach v. Morgan.

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'appropriate legislation' the provisions of that amendment; and we recently held . . . that '[t]he

basic test to be applied in a case involving s[ection] 2 of the Fifteenth Amendment is the same as

in all cases concerning the express powers of Congress with relation to the reserved powers of

the States'": namely, the test identified in McCulloch v. Maryland. Id. at 651 (internal citations

omitted). Hence, the Court confirmed, the meaning of "appropriate," as stated in McCulloch v.

Maryland and Ex Parte Virginia, governs Congress's enforcement authority under both § 5 of the

Fourteenth Amendment and § 2 of the Fifteenth Amendment. See id.

When the Supreme Court next addressed a facial challenge to the constitutionality of

Section 5 in City of Rome, it again held that McCulloch v. Maryland and Ex Parte Virginia

provide the basic framework for assessing whether legislation is "appropriate" under § 2 of the

Fifteenth Amendment. See City of Rome, 446 U.S. at 174-75. The Court also elaborated on its

discussion in Katzenbach v. Morgan by describing the precise nature of Congress's authority to

"enforce" the Reconstruction Amendments. According to the Court, "even if § 1 of the

[Fifteenth] Amendment prohibits only purposeful discrimination," id. at 173, Congress may,

under the authority vested in it by § 2, "prohibit state action that, though in itself not violative of

§ 1, perpetuates the effects of past discrimination," id. at 176.

As one scholar has pointed out, this "reference to 'past discrimination' suggests that

Congress is authorized to prohibit [discriminatory] effects only if the Court believes it is

reasonable to infer discriminatory purposes in the past." Paul Winke, Why the Preclearance and

Bailout Provisions of the Voting Rights Act Are Still a Constitutionally Proportional Remedy, 28

N.Y.U. REV . L. & SOC. CHANGE 69, 80 (2003). In other words, City of Rome implies that

Congress may exercise its § 2 enforcement powers by prohibiting electoral practices that do not

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themselves violate § 1 of the Fifteenth Amendment only as a means of "attacking the

perpetuation of earlier, purposeful racial discrimination." See City of Rome, 446 U.S. at 177

(describing the Supreme Court's holding in Oregon v. Mitchell, 400 U.S. 112 (1970)) (emphasis

added). But City of Rome made clear that when Congress does legislate pursuant to § 2 of the

Fifteenth Amendment in response to earlier, purposeful voting discrimination, such legislation

need only be "'appropriate' as that term is defined in McCulloch v. Maryland and Ex Parte

Virginia." Id. at 177. The Supreme Court in City of Rome thus framed the specific question

before it as whether, in re-authorizing Section 5 in 1975, "Congress could rationally have

concluded that, because electoral changes by jurisdictions with a demonstrable history of

intentional racial discrimination in voting create the risk of purposeful discrimination, it was

proper to prohibit changes that have a discriminatory impact." Id. (emphasis added).

To answer this question, the Court looked to the evidence upon which Congress had

relied in deciding to reauthorize Section 5 in 1975. See id. at 180-82. The Court noted that

Congress had given "careful consideration to the propriety of readopting § 5's preclearance

requirement" and had considered evidence such as racial disparities in voter registration, the

number of minority elected officials, and "the number and types of submissions made by covered

jurisdictions and the number and nature of objections interposed by the Attorney General." Id. at

181. After considering such evidence, Congress "not only determined that § 5 should be

extended for another seven years," but gave Section 5 a "ringing endorsement," explaining that

Section 5 had been largely responsible for the increased minority political participation in the ten

years since the Voting Rights Act's passage, and for ensuring that such progress was not

"'destroyed through new procedures and techniques.'" Id. (quoting H.R. Rep. 94-196, at 10-11).

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Citing Congress's finding that Section 5 was "necessary to preserve the 'limited and fragile'

achievements of the Act and to promote further amelioration of voting discrimination," the Court

found that, based on the evidence in the congressional record, the 1975 extension of Section 5

"was plainly a constitutional method of enforcing the Fifteenth Amendment." Id. at 182.

B. Boerne's Refinement of Katzenbach and City of Rome

Then came City of Boerne. There, the Supreme Court addressed a challenge to the

Religious Freedom Restoration Act ("RFRA"), a statute that Congress had enacted pursuant to §

5 of the Fourteenth Amendment, and which prohibited states from imposing a "substantial

burden" on the free exercise of religion unless they could show that the burden was (1) in

furtherance of a "compelling" governmental interest; and (2) the "least restrictive means" of

furthering that interest. 521 U.S. at 515-16. The Court in Boerne began its analysis of RFRA by

quoting the familiar passage from Ex Parte Virginia on the meaning of "appropriate" § 5

enforcement legislation. See id. at 517-18. After noting that Ex Parte Virginia had only outlined

"the scope of Congress' § 5 power in . . . broad terms," id. at 517, the Court proceeded to expand

on these "broad terms" by confirming what Katzenbach v. Morgan and City of Rome had already

made clear: namely, that "[l]egislation which deters or remedies constitutional violations can fall

within the sweep of Congress's enforcement power even if in the process it prohibits conduct

which is not itself unconstitutional." Id. at 518.

But the Court in Boerne went on to explain that Congress's power under § 5 is not

unlimited. "Legislation which alters the meaning of the Free Exercise Clause cannot be said to

be enforcing the Clause," the Court said, since Congress "has been given the power 'to enforce,'"

but "not the power to determine what constitutes a constitutional violation." Id. at 519. The

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Court acknowledged that there is a fine line "between measures that remedy or prevent

unconstitutional actions and measures that make a substantive change in the governing law," and

it explained that while Congress "must have wide latitude in determining where [the line] lies,"

ultimately it is for the Court to decide whether Congress has overstepped the bounds of its

authority by attempting to "decree the substance of the Fourteenth Amendment's restrictions on

the States." Id. at 519-20. Hence, the Court concluded, in order for legislation to be upheld as a

valid exercise of Congress's § 5 power, "[t]here must be a congruence and proportionality

between the injury to be prevented or remedied and the means adopted to that end." Id.

But in making this statement, the Supreme Court in Boerne did not purport to overrule

Katzenbach, nor did it seek to distinguish between the standards of review to be applied in the

Fourteenth and Fifteenth Amendment enforcement contexts. To the contrary, the Court cited

Katzenbach as a paradigmatic example of a case that had "revolve[d] around the question

whether § 5 legislation can be considered remedial," see Boerne, 521 U.S. at 525 (citing

Katzenbach, 383 U.S. at 808) -- despite the fact that Katzenbach involved § 2 legislation, not § 5

legislation. The Boerne Court also discussed Katzenbach v. Morgan and City of Rome in great

detail, see, e.g., Boerne 521 U.S. at 527-28, 533, without providing any indication that it was

departing from the method of analysis it had used to assess Congress's exercise of its Fourteenth

and Fifteenth Amendment enforcement authority in those cases. Instead, the Supreme Court in

Boerne cited Katzenbach v. Morgan and City of Rome as illustrative of the principle that

Congress may, consistent with § 5, enact "strong remedial and preventative measures to respond

to the widespread and persisting deprivation of constitutional rights resulting from this country's

history of racial discrimination." See Boerne, 521 U.S. at 526. Because it had previously upheld

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challenged provisions of the Voting Rights Act only on the basis of actual evidence of

unconstitutional voting discrimination by states, see id. at 526-28, the Court found no reason to

view its Voting Rights Act jurisprudence under § 2 of the Fifteenth Amendment as inconsistent

with the pronouncement that "[t]he appropriateness of remedial measures must be considered in

light of the evil presented," id. at 530 (citing Katzenbach, 383 U.S. at 308).

Applying this standard to RFRA, however, the Court decided that RFRA was "so out of

proportion to a supposed remedial or preventative object that it cannot be understood as

responsive to, or designed to prevent, unconstitutional behavior." Boerne, 521 U.S. at 532. In

reaching this conclusion, the Court found a comparison between RFRA and the Voting Rights

Act to be "instructive." Id. at 530. Whereas the Voting Rights Act had been passed on the basis

of an extensive legislative record replete with instances of state-sponsored voting discrimination

in violation of the Fifteenth Amendment, RFRA's legislative record lacked "examples of modern

instances of generally applicable laws passed because of religious bigotry." Id. Indeed, the

record contained no documented episodes of religious persecution that had occurred in the past

40 years. Id. And unlike the Voting Rights Act -- which was limited both in terms of the

"discrete class of laws" that it affected (voting laws) and in the states that it covered (those where

"constitutional violations were most likely") -- RFRA's "[s]weeping coverage" displaced laws in

every state, "of almost every description and regardless of subject matter." Id. at 532. Finally,

while Section 5 of the Voting Rights Act was enacted as a temporary provision, with a procedure

by which jurisdictions could bail out of its requirements, RFRA had "no termination date or

termination mechanism." Id. at 532-33.

The Supreme Court in Boerne made clear that a statute need not contain these kinds of

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limiting features in order to be sustained as congruent and proportional § 5 legislation. Id. at

533. But it explained that where "a congressional enactment pervasively prohibits constitutional

state action in an effort to remedy or to prevent unconstitutional state action, limitations of this

kind tend to ensure Congress' means are proportionate to ends legitimate under § 5." Id.

(emphasis added). Given the lack of any such limitations in RFRA, together with the absence of

any recent documented instances of religious persecution in the legislative record, the Court in

Boerne held that "RFRA cannot be considered remedial, preventative legislation." Id. at 532.

"Simply put, RFRA is not designed to identify and counteract state laws likely to be

unconstitutional because of their treatment of religion." Id. at 534-35.

After Boerne, the Supreme Court continued to refine the congruence and proportionality

framework in a series of cases addressing whether Congress had validly abrogated state

sovereign immunity pursuant to § 5 of the Fourteenth Amendment. See Nw. Austin I, 573 F.

Supp. 2d at 240-41. In the first of these cases, the Court struck down the Patent and Plant

Variety Protection Remedy Clarification Act, which subjected states to patent infringement suits,

on the ground that Congress had failed to identify any "pattern of patent infringement by the

States, let alone a pattern of constitutional violations" that could justify the Act as an appropriate

remedial measure under § 5. See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav.

Bank, 527 U.S. 627, 640 (1999). Instead, Congress appeared to have enacted the legislation only

in "response to a handful of instances of state patent infringement that do not necessarily violate

the Constitution." Id. at 645-46. The Act also did not contain any of the "various limits that

Congress [had] imposed in its voting rights measures," which the Court deemed "particularly

incongruous in light of the scant support for the predicate unconstitutional conduct that Congress

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intended to remedy." Id. at 647. Accordingly, given both the insufficient historical record of

constitutional violations and the broad scope of the Act's coverage, the Court found "it clear that

the Patent Remedy Act cannot be sustained under § 5 of the Fourteenth Amendment." Id.

The following year in Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000), the Court

similarly held that Congress's abrogation of state sovereign immunity in the Age Discrimination

in Employment Act, which permitted suits for money damages against state employers alleged to

have discriminated on the basis of age, exceeded Congress's authority under § 5. While

reaffirming that "Congress' power 'to enforce' the [Fourteenth] Amendment includes the authority

both to remedy and deter violations of rights guaranteed thereunder by prohibiting a somewhat

broader swath of conduct" than that which the Amendment itself proscribes, 528 U.S. at 81, the

Court nonetheless found that Congress had exceeded this enforcement power by failing to

identify "any pattern of age discrimination by the States, much less any discrimination

whatsoever that rose to the level of constitutional violation," id. at 88.

Then, in Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001), the Court again

applied congruence and proportionality review to strike down § 5 enforcement legislation,

finding that the provision of Title I of the Americans with Disabilities Act ("ADA") that

permitted individuals to sue states for money damages exceeded Congress's Fourteenth

Amendment enforcement authority. See 531 U.S. at 374. As in Boerne, the Supreme Court in

Garrett compared the legislative record amassed by Congress in support of the ADA with that

considered by Congress in enacting the Voting Rights Act. Whereas Congress in passing the

Voting Rights Act had documented "a marked pattern of unconstitutional action by the States,"

id., Congress in enacting the ADA had cited only "half a dozen examples" of state-sponsored

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discrimination against the disabled, id. at 369. These incidents fell "far short of even suggesting

the pattern of unconstitutional discrimination on which § 5 legislation must be based." Id. at 370.

The Court also contrasted the ADA's sweeping nation-wide mandate "for the elimination of

discrimination against individuals with disabilities" with the Voting Rights Act's more "limited

remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in

those areas of the Nation where abundant evidence of States' systematic denial of those rights

was identified." Id. at 373 (internal quotation marks and citation omitted). This comparison of

the ADA to the Voting Rights Act made clear "[t]he ADA's constitutional shortcomings." Id.

But after using congruence and proportionality review to strike down four separate pieces

of § 5 enforcement legislation, the Court most recently held that two statutes enacted pursuant to

Congress's Fourteenth Amendment enforcement authority were, in fact, congruent and

proportional. See Hibbs, 538 U.S. at 724; Tennessee v. Lane, 541 U.S. 509, 533-34 (2004). In

Hibbs, the Court upheld the constitutionality of the family-care provision of the Family and

Medical Leave Act ("FMLA"), and in Lane the Court found that Title II of the ADA -- as applied

to claims by the disabled alleging that they had been denied access to the courts because of their

disability -- constituted a valid exercise of Congress's § 5 enforcement power. See Hibbs, 538

U.S. at 724; Lane, 541 U.S. at 533-34. Significantly, both statutes sought to protect a class or

right that receives heightened judicial scrutiny: namely, "suspect gender classifications (the

FMLA) and the fundamental right of access to the courts (ADA Title II)." See Nw. Austin I, 573

F. Supp. 2d at 241. As a result, "'it was easier for Congress to show a pattern of state

constitutional violations' than in Garrett or Kimel, both of which concerned legislation that

targeted classifications subject to rational-basis review." Lane, 541 U.S. at 529 (quoting Hibbs,

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538 U.S. at 736). Given the nature of the classification at issue, the Court in Hibbs compared the

showing needed to uphold the FMLA to that necessary to sustain the Voting Rights Act.

Congress was "similarly successful" in demonstrating a pattern of unconstitutional conduct in the

voting rights context, the Hibbs Court explained, because racial classifications, like gender

classifications, "are presumptively invalid," so "most of the States' acts of race discrimination

violated the Fourteenth Amendment." Hibbs, 538 U.S. at 736.

After Hibbs, Lane, and the other cases that have applied and clarified Boerne, it is now

clear that the standard for reviewing Congress's enactment of remedial, prophylactic legislation

under § 5 of the Fourteenth Amendment involves three steps. See Nw. Austin I, 573 F. Supp. 2d

at 268-69. First, the court must "identify the constitutional right or rights that Congress sought to

enforce" when it enacted the challenged legislation. Lane, 541 U.S. at 522; see also Garrett, 531

U.S. at 365 (explaining that the court must "identify with some precision the scope of the

constitutional right at issue"); Fla. Prepaid, 527 U.S. at 652 (noting that "the first step of the

inquiry . . . is to determine what injury Congress sought to prevent or remedy with the relevant

legislation"). Second, it must "examine whether Congress identified a history and pattern of

unconstitutional [conduct] by the States" that justified the enactment of the remedial measure.

Garrett, 531 U.S. at 368. Finally, the court must decide whether the challenged legislation

constitutes "an appropriate response" to the identified "history and pattern" of unconstitutional

conduct, Lane, 541 U.S. at 530 -- in other words, whether is it "congruent and proportional to the

targeted violation," Garrett, 531 U.S. at 374; Hibbs, 538 U.S. at 737.

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C. Boerne Governs Challenges to Congress's Enforcement Power Under Both § 2 of

the Fifteenth Amendment and § 5 of the Fourteenth Amendment

The only remaining question, then, is whether, notwithstanding the Court's articulation

and refinement of the congruence and proportionality framework in the context of challenges to

Congress's enforcement power under § 5 of the Fourteenth Amendment, a different standard of

review nonetheless governs Congress's exercise of its "parallel power" to enforce § 2 of the

Fifteenth Amendment. Although Boerne and "the cases that define the limits of Congress's

enforcement power have focused primarily on that power as granted by Section 5 of the

Fourteenth Amendment," this Court agrees with the Second Circuit's determination that there is

"no significant reason to conclude that the scope of the enforcement power under the two

amendments is different." See Hayden, 449 F.3d at 331 n.5.

To begin with, the language of the enforcement clauses of the Fourteenth and Fifteenth

Amendments is almost identical, as they both reference Congress's ability to enforce the

Amendment through the enactment of "appropriate" legislation. See id.; compare U.S. CONST .

amend. XIV, § 5 ("Congress shall have the power to enforce, by appropriate legislation, the

provisions of this article") with U.S. CONST . amend. XV, § 2 ("Congress shall have power to

enforce this article by appropriate legislation"). Moreover, the two amendments have similar

origins and histories. See, e.g., Pamela S. Karlan, Two Section Twos and Two Section Fives:

Voting Rights and Remedies After Flores, 39 WM . & MARY L. REV . 725, 725 n.5 (1998)

(explaining that "because the two amendments are rough contemporaries and their enforcement

power provisions are articulated in similar terms, the [Boerne] analysis surely carries over" to the

Fifteenth Amendment context). And perhaps most importantly, the Supreme Court has expressly

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"equated Congress's enforcement power under the two amendments" on a number of occasions,

both before and after Boerne. See Hayden, 449 F.3d at 331 n.5 (citing Garrett, 531 U.S. at 373

n.8; Boerne, 521 U.S. at 517-18; Katzenbach v. Morgan, 384 U.S. at 650-51).

Far from implying that the Fourteenth and Fifteenth Amendments were intended to be

"'enforced' in different ways," Hayden, 449 F.3d at 331 n.5, Boerne itself is also best read to

mean that the nature of Congress's enforcement powers under the two amendments is the same.

In Boerne, the Supreme Court relied on the Voting Rights Act as upheld in Katzenbach and City

of Rome as a paradigmatic example of legislation that satisfies the congruence and

proportionality test, contrasting the Voting Rights Act with RFRA in order to illustrate RFRA's

constitutional deficiencies. See, e.g., 521 U.S. at 518, 525-26, 530-33. Shelby County is correct

to point out that Boerne's repeated reliance on Katzenbach and City of Rome -- both of which

were decided under § 2 of the Fifteenth Amendment -- would be "misplaced," see Pl.'s Mot. at

19, to say the least, if § 5 enforcement legislation "were to be judged against an entirely different

constitutional metric" than that applicable to § 2 enforcement legislation, see Pl.'s Reply at 12;

see also Evan Caminker, "Appropriate" Means-Ends Constraints on Section 5 Powers, 53 STAN .

L. REV . 1127, 1191 (2001) (stating that Boerne "strongly suggests that Section 2 measures

designed to enforce the Fifteenth Amendment are subject to stringent congruence and

proportionality analysis as well"); Mark A. Posner, Time is Still On its Side: Why Congressional

Reauthorization of Section 5 of the Voting Rights Act Represents a Congruent and Proportional

Response to Our Nation's History of Discrimination in Voting, 10 N.Y.U. J. LEGIS. & PUB. POL'Y

51, 89 (2006) (noting that Boerne "strongly intimated that the same analysis applies when

assessing Congress's authority under the two amendments to enact prophylactic legislation").

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Boerne's characterization of Katzenbach as a case that "revolve[d] around the question

whether § 5 legislation can be considered remedial," see Boerne, 521 U.S. at 525 (emphasis

added), also cannot be reconciled with the contention that different modes of analysis govern

judicial review of § 5 and § 2 enforcement legislation. Again, this is because the Court in

Katzenbach upheld the challenged provisions of the Voting Rights Act not as a valid exercise of

Congress's power under § 5 of the Fourteenth Amendment, but as "a valid means of carrying out

the commands of the Fifteenth Amendment." Katzenbach, 383 U.S. at 337. Indeed, the Supreme

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

Katzenbach "revolve[d] around" the issue of what constitutes appropriate § 5 legislation, then, it

could only be because the test for determining the validity of § 5 legislation is the same as that

for determining the validity of § 2 legislation.

It is also significant that the Supreme Court in Boerne did not purport to overrule

Katzenbach v. Morgan, or the half-century of precedent that has treated the nature of the

enforcement power conferred by the Fourteenth and Fifteenth Amendments as coextensive.

See Katzenbach v. Morgan, 384 U.S. at 651 (explaining that McCulloch v. Maryland and Ex

Parte Virginia provide the definition of what constitutes "appropriate" enforcement legislation in

both the Fifteenth and Fourteenth Amendment contexts). The Supreme Court in Boerne began

its analysis by quoting Katzenbach v. Morgan's acknowledgment that "§ 5 is 'a positive grant of

legislative power.'" Boerne, 521 U.S. at 517 (quoting Katzenbach v. Morgan, 384 U.S. at 651).

And it then recited the traditional articulation of "the scope of Congress' § 5 power" as laid out in

Ex Parte Virginia, thereby suggesting that the congruence and proportionality framework was a

mere elaboration of those "broad terms." See Boerne, 521 U.S. at 517-18.

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Under Katzenbach and City of Rome, Ex Parte Virginia's definition of "appropriate"

legislation under the Thirteenth and Fourteenth Amendments also governs what constitutes

"appropriate" legislation under the Fifteenth Amendment. See Katzenbach, 383 U.S. at 326; City

of Rome, 446 U.S. at 174-75. Hence, the Supreme Court's elaboration of Ex Parte Virginia in

Boerne would seem to apply just the same in the Fifteenth Amendment context, at least in the

absence of any indication that Katzenbach and City of Rome were incorrect to rely on a § 5 case

in delineating the scope of Congress's § 2 power. But the Supreme Court in Boerne gave no such

indication. In fact, it suggested just the opposite, by itself relying almost exclusively on § 2 cases

in delineating the scope of Congress's § 5 power. See Karlan, 39 WM . & MARY L. REV . at 725

n.5 (noting that "most of the cases Justice Kennedy cited relied on Congress's use of its

enforcement power under Section 2 of the Fifteenth Amendment").

The Supreme Court's failure in Boerne to announce any departure from Katzenbach and

City of Rome can be explained by the fact that the congruence and proportionality test does not

constitute a novel alternative to the standard of review employed in those earlier cases; rather, it

reflects a more detailed articulation of the same standard that the Court has always applied to

assess Congress's exercise of its Fifteenth Amendment enforcement power. In Katzenbach, the

Court began with the first step of the Boerne framework, determining "what injury Congress

sought to prevent or remedy" when it enacted the challenged provisions of the Voting Rights Act.

Fla. Prepaid, 527 U.S. at 652; see Katzenbach, 383 U.S. at 308 (explaining that the Act was

designed "to banish the blight of racial discrimination in voting"). The Court then proceeded to

the second step of Boerne, looking to whether Congress had "identified a history and pattern of

unconstitutional [conduct] by the States," Garrett, 531 U.S. at 368. In so doing, the Supreme

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Court made clear that the "constitutional propriety" of the Act "must be judged with reference to

the historical experience it reflects," Katzenbach, 383 U.S. at 308, and it pointed to historical

evidence of state-sponsored voting discrimination in the legislative record to justify the need for

the Act, id. at 310 (describing states' use of tests and devices that were "specifically designed to

prevent Negroes from voting"). Although the Court in Katzenbach did not use the words

"congruent" and "proportional" when assessing the challenged provisions of the Act, it did

closely analyze whether Section 5 and Section 4(b) constituted "an appropriate response" to the

"history and pattern" of unconstitutional voting discrimination that Congress had identified, see

Lane, 541 U.S. at 530. So, too, did the Court in City of Rome engage in a Boerne-like analysis,

upholding the 1975 reauthorization of Section 5 only after describing the evidence of voting

discrimination upon which Congress had relied in reauthorizing the Act's temporary provisions.

See City of Rome, 446 U.S. at 182 (finding that "at least another 7 years of statutory remedies"

was "necessary to counter the perpetuation of 95 years of pervasive voting discrimination").

To the extent that the analysis undertaken in Katzenbach and City of Rome was

somewhat less rigorous than that applied in cases since Boerne, that may only be a reflection of

the fact that where a remedial statute is designed to protect a fundamental right or to prevent

discrimination based on a suspect classification, it is "easier for Congress to show a pattern of

state constitutional violations," as required at the second step of Boerne. See Hibbs, 538 U.S. at

736; Lane, 541 U.S. at 529. Because Section 5 seeks to protect the right to vote -- a

"fundamental political right," Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) -- and to prohibit

discrimination based on race -- an "immediately suspect" classification, see Johnson v.

California, 543 U.S. 499, 509 (2005) -- the showing needed to substantiate Section 5 was easier

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to make in Katzenbach and City of Rome than in Kimel or Garrett, which involved

classifications subject to less stringent levels of constitutional scrutiny. See Nw. Austin I, 573 F.

Supp. 2d at 241.

The Attorney General relies heavily on Lopez, a Section 5 case decided shortly after

Boerne, in arguing that congruence and proportionality review does not govern Shelby County's

challenge to the constitutionality of Section 5. See Def.'s Reply in Supp. of Def.'s Mot. for

Summ. J. [Docket Entry 67] at 6. But such reliance is unwarranted. In Lopez, the Supreme

Court examined an as-applied challenge to Section 5 brought by Monterey County, California, a

political subdivision covered by Section 4(b). See Lopez, 525 U.S. at 282. Monterey County

alleged that Section 5 did not apply to its implementation of a voting change required by state

law, since enactment of the change was non-discretionary and California -- the source of the

change -- was not itself a covered jurisdiction subject to Section 5. Id. Rejecting this argument,

the Court held that "the Act's preclearance requirements apply to measures mandated by a

noncovered State to the extent that these measures will effect a voting change in a covered

county." Id. at 269. The Court then briefly addressed the plaintiff's contention that Section 5 was

unconstitutional to the extent that it was interpreted to apply "to voting measures enacted by

States that have not been designated as historical wrongdoers in the voting rights sphere." Id. at

283. Citing Katzenbach and City of Rome, the Court explained that it had previously upheld

Section 5 as a valid exercise of Congress's Fifteenth Amendment enforcement authority -- despite

its "intrusion into areas traditionally reserved to the States" -- and that no different result was

required just because Section 5 "is held to cover acts initiated by non-covered States." Id. The

Court then referenced Boerne as having held that Congress may, under the Fourteenth

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Amendment, "'intrude[] into legislative spheres of autonomy previously reserved to the States.'"

Id. (quoting Boerne, 521 U.S. at 518). Nowhere in Lopez did the Supreme Court mention either

"congruence and proportionality" or "rational basis" review, or purport to apply either standard to

Section 5. To the extent that Lopez cuts in either direction, then, the Court regards it as

reaffirming that Katzenbach, City of Rome, and Boerne are consistent in their evolving

descriptions of Congress's enforcement power under the Fourteenth and Fifteenth Amendments.

Because the Court finds no basis upon which to differentiate between the standards of

review to be applied in the Fourteenth and Fifteenth Amendment enforcement contexts, it need

not decide whether the 2006 reauthorization of Section 5 and Section 4(b) constituted an exercise

of Congress's Fourteenth or Fifteenth Amendment enforcement authority, or a kind of hybrid

legislation enacted pursuant to both amendments. Shelby County correctly points out that to date

"[t]he Fifteenth Amendment has been the exclusive basis for upholding Section 5." See Pl.'s

Reply at 47, 49 n.15; see also City of Rome, 446 U.S. at 173; Katzenbach, 383 U.S. at 327;

Allen, 393 U.S. at 588 (Harlan, J., concurring in part, dissenting in part) (explaining that

"Congress consciously refused to base s[ection] 5 of the Voting Rights Act on its powers under

the Fourteenth Amendment"). But in adopting the Act's protections for language minorities in

1975 and then extending them in 2006, Congress expressly relied on its Fourteenth Amendment

enforcement power as well, since the Fifteenth Amendment speaks only of discrimination on the

basis of "race." See Nw. Austin I, 573 F. Supp. 2d at 243-44; see also S. Rep. No. 94-295, at

814-15 (1975) (explaining that "[t]he Fourteenth Amendment is added as a constitutional basis

for these voting rights amendments" in order to "doubly insure the constitutional basis for the

Act," even though the Department of Justice has taken the position that "'language minorities' are

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members of a 'race or color' group protected under the Fifteenth Amendment"); 42 U.S.C. §

1973aa-1a (finding that, because "citizens of language minorities have been effectively excluded

from participation in the electoral process," it is necessary to prescribe remedial measures "to

enforce the guarantees of the fourteenth and fifteenth amendments").

Some have argued that this reliance on the Fourteenth Amendment was unnecessary, and

that Congress "could have relied solely on its Fifteenth Amendment authority" in extending the

Act's protections to language minorities, since the Supreme Court has "strongly suggested" that

language minorities "qualify as racial groups" within the meaning of the Fifteenth Amendment.

See, e.g., Nw. Austin I, 573 F. Supp. 2d at 243-44. Regardless, there are additional reasons to

question whether Section 5 can still be viewed as pure Fifteenth Amendment enforcement

legislation. Section 5 is designed to combat not only outright denials of the right to vote, but also

vote dilution -- "defined as a regime that denies to minority voters the same opportunity to

participate in the political process and to elect representatives of their choice that majority voters

enjoy." Bossier II, 528 U.S. at 359 (Souter, J., concurring in part, dissenting in part). Although

there is an argument that measures that dilute minorities' voting strength violate the Fifteenth

Amendment's guarantee against "abridgment" of the right to vote, see id., the Supreme Court thus

far has "dealt with vote dilution only under the Fourteenth Amendment," id., and has "never held

that vote dilution violates the Fifteenth Amendment," Bossier II, 528 U.S. at 334 n.3. To the

extent that the Attorney General seeks to rely on evidence of vote dilution to justify the 2006

reauthorization of Section 5, then, it might be necessary to find that Section 5 constitutes valid

Fourteenth Amendment -- as opposed to Fifteenth Amendment -- enforcement legislation. But

again, this issue need not be decided, in light of the Court's conclusion that Boerne provides the

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proper mode of analysis to assess challenges to Congress's enforcement power under both § 5 of

the Fourteenth Amendment and § 2 of the Fifteenth Amendment. Hence, irrespective of whether

Section 5 is considered § 2 enforcement legislation, § 5 enforcement legislation,11 or a kind of

hybrid legislation enacted pursuant to both amendments, it can only be upheld if it is "congruent

and proportional" to the problem of unconstitutional racial discrimination in voting.

III. Application of Boerne to the 2006 Extension of Section 5

A. The Scope of the Constitutional Right At Issue

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

under Boerne is "to identify with some precision the scope of the constitutional right at issue."

See Garrett, 531 U.S. at 365; see also Lane, 541 U.S. at 522. 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 Hibbs, 538 U.S. at 736. 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

11

In Hibbs, the Supreme Court noted that it had previously upheld "certain prophylactic

provisions of the Voting Rights Act as valid exercises of Congress' § 5 power, including the

literacy test ban and preclearance requirements for changes in States' voting procedures." Hibbs,

538 U.S. at 737-38. In support of this proposition, however, the Supreme Court cited only one

case that dealt with preclearance requirements, and that case -- Katzenbach -- upheld Section 5 as

a valid exercise of Congress's § 2 power, not its § 5 power. See id. (citing Katzenbach v.

Morgan, 384 U.S. 641; Oregon v. Mitchell, 400 U.S. 112; Katzenbach, 383 U.S. 301).

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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 enforcement legislation under the

Reconstruction Amendments. See Posner, 10 N.Y.U. J. LEGIS. & PUB. POL'Y at 87. It is for this

reason that "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.

Significantly, Section 5 not only seeks to protect the right to vote -- a "fundamental

political right, because [it is] preservative of all rights," Yick Wo, 118 U.S. at 370 -- but also

seeks to 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 is designed to protect "both the quintessential suspect classification (race) and

the quintessential civil right (the franchise)," defendant-intervenors are correct that Congress

acted at the "zenith of its constitutional enforcement authority" when it reauthorized Section 5 in

2006. See Harris Def.-Ints.' Mot. for Summ. J. ("Harris Mot.") [Docket Entry 55] at 22; see also

Nathaniel Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 YALE L.J. 174,

176 (2007) (explaining that Congress "acted at the apex of its power to enforce the guarantees of

the post-Civil War Amendments" when it enacted the Voting Rights Act). Just as in Hibbs and

Lane, then, it is "easier for Congress to show a pattern of state constitutional violations"

justifying the need for Section 5 than when Congress seeks to enforce rights subject to lesser

levels of constitutional review, since "racial classifications and restrictions on the right to vote -

like gender discrimination (Hibbs) and access to the courts (Lane) - are 'presumptively invalid.'"

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Nw. Austin I, 573 F. Supp. 2d at 270 (quoting Hibbs, 538 U.S. at 736).

B. Evidence of Unconstitutional Voting Discrimination in the Legislative Record

Having determined "the metes and bounds of the constitutional right[s] in question," the

core issue is whether Congress succeeded in identifying "a history and pattern" of

unconstitutional, state-sponsored voting discrimination to justify the 2006 reauthorization of

Section 5. See Garrett, 531 U.S. at 368. Shelby County argues that the evidence of so-called

"second generation barriers" to voting upon which Congress relied in 2006 when it re-authorized

Section 5 -- including evidence of racially polarized voting, preclearance statistics, the continued

filing of Section 2 cases, and the dispatch of federal observers -- cannot justify the extension of

Section 5, since "none of this evidence comes close to proving the existence of pervasive,

intentional discrimination." See Pl.'s Mot. at 32. Instead, Shelby County contends, there are only

two types of evidence that can be used to establish the constitutional necessity of Section 5: "(1)

direct evidence of widespread, intentional voting discrimination and gamesmanship; and (2)

registration data, turnout statistics, and the election of minorities to public office." Pl.'s Reply at

37 (emphasis added). This argument is flawed in several respects.

To begin with, "[i]n identifying past evils, Congress obviously may avail itself of

information from any probative source." Katzenbach, 383 U.S. at 330. To be sure, there must be

an established "pattern of constitutional violations" in order to justify remedial, prophylactic

legislation like Section 5, see Fla. Prepaid, 527 U.S. at 640, and discriminatory intent is a

necessary element of a Fourteenth or Fifteenth Amendment violation, see, e.g., City of Mobile,

446 U.S. at 62, 67. Shelby County is therefore correct that some evidence of purposeful state-

sponsored voting discrimination is needed to sustain Section 5. But Shelby County is incorrect

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to suggest that such evidence must be "direct." See Pl.'s Reply at 37. To the contrary, the

Supreme Court has repeatedly recognized that unconstitutional "discriminatory intent need not be

proved by direct evidence." See Rogers v. Lodge, 458 U.S. 613, 618 (1982) (emphasis added)

(citing Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 265 (1977); Washington

v. Davis, 426 U.S. 229, 242 (1976)). Rather, "an invidious discriminatory purpose may often be

inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears

more heavily on one race than another." Washington v. Davis, 426 U.S. at 242. Moreover, as

the Supreme Court in Katzenbach made clear, Congress is not bound by the standards of proof

applicable in judicial proceedings "when it prescribes civil remedies against other organs of

government under s[ection] 2 of the Fifteenth Amendment." See Katzenbach, 383 U.S. at 330.

Because the discriminatory effects of a challenged practice can constitute "powerful evidence of

the intent with which it was adopted or maintained," Continuing Need 186 (prepared statement of

Pamela S. Karlan), this Court would be remiss if it were to limit its examination of the legislative

record to judicially proven instances of discriminatory intent.

Shelby County's suggestion that circumstantial evidence of voting discrimination cannot

justify the 2006 reauthorization of Section 5 is also belied by City of Rome. There, in upholding

the 1975 extension of Section 5, the Supreme Court pointed to no recent "direct" evidence of

intentional voting discrimination by covered jurisdictions. Instead, it found that Section 5's

reauthorization was justified based on the country's history of intentional discrimination in

voting, together with more recent circumstantial evidence of continued voting discrimination,

which included evidence of racial disparities in voter registration and turnout, the number of

minority elected officials, and the nature and number of Section 5 objections. See City of Rome,

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446 U.S. at 181. Clearly, then, such evidence is -- at the very least -- relevant in assessing

whether Section 5 remains "justified by current needs." Nw. Austin II, 129 S. Ct. at 2512.

Not only is Shelby County incorrect to suggest that Section 5 can only be sustained on the

basis of recent "direct" evidence of intentional voting discrimination, but it is also wrong to

suggest that Congress lacked such evidence when it reauthorized Section 5 in 2006. Having

examined the 2006 legislative record, this Court -- like the three-judge court in Nw. Austin I --

has found ample evidence of purposeful voting discrimination by covered jurisdictions. The

record describes one instance in which Mississippi state legislators opposed a redistricting plan

that would have given African-Americans an increased opportunity to elect representatives of

their choice, referring to the plan "on the House floor as the 'black plan' and privately as 'the n-

plan.'" S. Rep. No. 109-295, at 14. On another occasion, Georgia's Chair of its House

Reapportionment Committee told his colleagues in the Georgia legislature that he was uncertain

as to the outcome of the state's redistricting process, "because the Justice Department is trying to

make us draw nigger districts and I don't want to draw nigger districts." See Busbee v. Smith,

549 F. Supp. 494, 501 (D.D.C. 1982); see also H.R. Rep. No. 109-478, at 67; Voting Rights Act:

The Judicial Evolution of the Retrogression Standard, Hearing Before the Subcomm. on the

Constitution of the H. Comm. on the Judiciary, 109th Cong. 54 (Nov. 9, 2005) (prepared

statement of Laughlin McDonald). In Shelby County's home state of Alabama, there were

reports of voting officials "closing the doors on African-American voters before the . . . voting

hours were over," see 1 Evidence of Continued Need 182 (Nat'l Comm'n Report), and of white

voting officials using racial epithets to describe African-American voters in the presence of

federal observers, see S. Rep. No. 109-295, at 130, 132. In both Texas and South Carolina,

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witnesses described various kinds of intimidation and harassment being directed at blacks at the

polls, see 1 Evidence of Continued Need 138 (Nat'l Comm'n Report); S. Rep. No. 109-295, at

307, 311, while one witness from Virginia testified that "hate literature" had been distributed in

his neighborhood, threatening to "lynch" African-Americans who voted in particular ways, see S.

Rep. No. 109-295, at 355. All these examples of intentional voting discrimination took place not

in the 1950s or 1960s, but in the 1980s, 1990s, and 2000s.

Yet Shelby County argues that even this kind of evidence carries little weight, as it is

merely "anecdotal" and such "anecdotal examples of intentional discrimination" cannot justify

the continued operation of Section 5. See Pl.'s Reply 39. Again, this Court disagrees. As

Professor Theodore Arrington explained in his 2006 testimony before the Senate Judiciary

Committee, "[t]he examination of specific cases cannot be dismissed as mere anecdotes,"

because "anecdote is the singular of data." Continuing Need 26 (responses of Theodore S.

Arrington to questions submitted by Senators Cornyn, Coburn, Leahy, Kennedy, and Kohl)

("Arrington Responses"); see also Understanding the Benefits and Costs of Section 5 Pre-

Clearance, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 19 (May 17, 2006)

("Benefits and Costs") (testimony of Drew S. Days III) (explaining that to characterize "examples

that are quite concrete . . . violations of the Voting Rights Act . . . as anecdotes, I think, is really

to miss the point" since these "so-called anecdotes go right to the very heart of the matter").

Taken together, the large collection of anecdotes in the legislative record constitutes a valid form

of data that must be assessed and weighed -- not dismissed as "isolated examples" of voting

discrimination, see Pl.'s Reply at 39.

Anecdotes are by no means the only form of data in the legislative record that shows the

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continued existence of unconstitutional voting discrimination by covered jurisdictions. One

study relied on by Congress found that 89% of the 209 objections to redistricting plans in the

1990s were based, at least in part, on discriminatory intent. See Preclearance Standards 181

(Peyton McCrary et al., "The End of Preclearance As We Knew It: How the Supreme Court

Transformed Section 5 of the Voting Rights Act") (hereinafter, "McCrary Study"). In other

words, the Justice Department determined that discriminatory purpose was a motivating factor in

no less than 186 of the redistricting plans proposed by covered jurisdictions during the 1990s. Id.

at 177, 181. Another study in the legislative record identified 24 lawsuits involving more than

one hundred instances of intentionally discriminatory conduct in voting since 1982. See Impact

and Effectiveness 986 (Katz Study). Such evidence can hardly be dismissed as "anecdotal."

Ultimately, an assessment of all the evidence in the legislative record confirms that

Congress was, in fact, responding to what it reasonably perceived to be a continuing history and

pattern of unconstitutional conduct by covered jurisdictions when it reauthorized Section 5 in

2006. Although some scholars voiced concern during the 2006 reauthorization hearings that "the

Act has been so effective it will be hard to produce enough evidence of intentional

discrimination by the states so as to justify the extraordinary preclearance remedy for another 25

years," see, e.g., Introduction to Expiring Provisions 216 (prepared statement of Richard L.

Hasen) ("Hasen Prepared Statement"); id. at 221 (prepared statement of Samuel Issacharoff)

("Issacharoff Prepared Statement"), Congress succeeded in doing just that. Despite the marked

improvements in minority political participation over the last several decades -- due, in large

part, to the effectiveness of the Voting Rights Act -- the 2006 legislative record reveals that, just

as in 1975, "'a bleaker side of the picture yet exists.'" City of Rome, 446 U.S. at 180 (internal

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citations omitted).

This Court will begin, as did the three-judge court in Nw. Austin I, by examining the

three types of evidence relied on by the Supreme Court in City of Rome when it upheld the 1975

reauthorization of Section 5 -- evidence of (1) racial disparities in voter registration (and

turnout); (2) the number of minority elected officials; and (3) the nature and number of Section 5

objections. The Court will then assess the other types of evidence cited by Congress when it

reauthorized Section 5 in 2006, including evidence of (4) more information requests; (5) Section

5 preclearance suits; (6) Section 5 enforcement actions; (7) Section 2 litigation; (8) the dispatch

of federal observers; (9) racially polarized voting; and (10) Section 5's deterrent effect. In the

course of its review, the Court will call particular attention to the evidence of intentional, state-

sponsored voting discrimination contained in the legislative record, keeping in mind that there

must be "a history and pattern of unconstitutional [conduct] by the States" to justify a remedial,

prophylactic measure like Section 5. See Garrett, 531 U.S. at 368.

1. Minority Voter Registration and Turnout

Shelby County points to the "dramatic rise in African-American voter registration and

turnout rates" since 1965 as evidence that Section 5's protections are no longer constitutionally

justified. See Pl.'s Reply at 44; see also Pl.'s Mot. at 25-26. It is true that there has been a

substantial increase in black voter registration and turnout in the South since the Voting Rights

Act was first enacted. See 1 Evidence of Continued Need 156-57 (Nat'l Comm'n Report). In

1964, the year before the Act's passage, the black voter registration rate was only 32% in

Louisiana, 23% in Alabama, and a meager 6.7% in Mississippi. Id. In each of these states, the

white voter registration rate was at least 50 percentage points higher than the corresponding rate

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for blacks. See Katzenbach, 383 U.S. at 313. Only ten years later, however, black voter

registration rates in the South had already increased substantially -- no doubt as a result of the

Act's prohibition of those tests and devices that had previously been employed to deny blacks

access to the ballot. See S. Rep. No. 94-295, at 779. In Mississippi, for example, the percentage

of blacks who were registered to vote multiplied almost tenfold in the seven years following the

Act's passage, jumping from 6.7% in 1964 to 63.2% in 1971-1972. Id.

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

remained troubled by the "[s]ignificant disparity" that "persisted between the percentages of

whites and Negroes registered in at least several of the covered jurisdictions." 446 U.S. at 180.

In 1975, black voter registration rates in Alabama, Louisiana, and North Carolina continued to

lag behind those of whites by as much as 23.6, 16, and 17.8 percentage points, respectively. See

S. Rep. No. 94-295, at 779. Hence, while "the City of Rome Court acknowledged the dramatic

progress the South had made since 1965," it still "found the evidence of continued discrimination

sufficient to justify the 1975 extension" of the Act's temporary provisions. See Nw. Austin I, 573

F. Supp. 2d at 247. After City of Rome, then, the question is not whether there has been

substantial improvement in minority voter registration and turnout since the Act's passage in

1965 (or even since the Act's reauthorization in 1975 or 1982), but whether, in spite of this

substantial improvement, there remained significant racial disparities in voter registration and

turnout when Congress reauthorized Section 5 in 2006. See id.

Just as in 1975, Congress in 2006 did find that significant disparities persisted between

minority and non-minority voter registration and turnout in several jurisdictions subject to

preclearance under Section 5. In Virginia, for example, Congress reported that the black voter

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registration rate in 2004 was almost 11 percentage points behind the corresponding rate for

whites, while the racial disparity in voter turnout was even greater, with only 49% of blacks

turning out to vote, as compared to 63% of whites. See H.R. Rep. No. 109-478, at 25. Similarly,

in Texas, Congress found a 20 percentage point gap in voter registration between whites and

Hispanics, id. at 29, with an even greater gap in voter turnout, see S. Rep. No. 109-295, at 11.

Nationwide, the 2004 voter registration and turnout rates for Hispanics were approximately half

the corresponding rates for whites, with only 34.3% of Hispanics registering and 28% turning out

to vote, as compared to 67.9% and 60.3% for whites. Id. Although the difference between black

and white voter registration and turnout rates was less significant, blacks nationwide still

registered and turned out to vote at rates below those of whites in 2004, with only 64.3% of

blacks registering, and 56.1% of blacks turning out to vote. Id.

Moreover, as the three-judge court in Nw. Austin I pointed out, these statistics understate

the true disparities between minority and non-minority voter registration and turnout. That is

because in computing the voter registration and turnout rates for whites, Congress included

Hispanics. See Nw. Austin I, 573 F. Supp. 2d at 248. Given the low registration and turnout

rates of Hispanic voters, the inclusion of these voters in the "white" category served to lower the

overall white voter registration and turnout rates reported by Congress, thereby reducing the true

disparity between black and white voter registration and turnout (as well as the disparity between

Hispanic and white voter registration and turnout). See id.; see also Persily, 117 YALE L.J. at 197

(explaining that "once Hispanics are taken out of the white category the picture changes

considerably"). For instance, Congress reported that in five of the 16 states covered in whole or

in part by Section 4(b) (California, Georgia, Mississippi, North Carolina, and Texas), voter

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registration and turnout in 2004 was higher among blacks than whites. See S. Rep. No. 109-295,

at 11. But when black voter registration and turnout rates are compared to the rates for non-

Hispanic whites, only one of these states (Mississippi) had higher black than white voter

registration and turnout in 2004. See Nw. Austin I, 573 F. Supp. 2d at 248. In each of the other

states covered in whole or in part by Section 4(b) for which comparative data was available,

voter registration was lower for blacks than for non-Hispanic whites. See U.S. Census Bureau,

Voting and Registration in the Election of November 2004 tbl. 4a., Reported Voting and

Registration of the Total Voting-Age Population, by Sex, Race and Hispanic Origin, for States,

available at http://www.census.gov/population/www/socdemo/voting/cps2004.html (hereinafter,

"2004 U.S. Census Bureau Report") (last visited September 19, 2011); see also S. Rep. No. 109-

295, at 11 (relying on 2004 U.S. Census Bureau Report).12

In many covered states, the disparities between black and non-Hispanic white voter

registration and turnout were stark: in both Arizona and Florida, for example, voter turnout rates

among non-Hispanic whites were more than 20 percentage points higher than voter turnout rates

among blacks, while in Louisiana and Texas, voter registration rates among non-Hispanic whites

were more than five percentage points higher than voter registration rates among blacks. See

2004 U.S. Census Bureau Report. When the data for non-Hispanic whites are used, the

disparities between black and white voter registration and turnout rates in Virginia become even

12

In North Carolina and Alabama, for which the 2004 voter registration rate for blacks

was lower than the rate for non-Hispanic whites, the voter turnout rate for blacks was higher than

the rate for non-Hispanic whites. See 2004 U.S. Census Bureau Report. Aside from North

Carolina, Alabama and Mississippi, all of the remaining 14 states covered in whole or in part by

Section 4(b) had lower voter registration and turnout rates for blacks than for non-Hispanic

whites. See id.

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more pronounced than those reported by Congress. Whereas Congress found that Virginia had a

10.8 percentage point racial disparity in voter registration and a 14 percentage point racial

disparity in voter turnout, see H.R. Rep. No. 109-478, at 25, the racial disparities become 14.2

and 16.6 percentage points, respectively, when black voter registration and turnout rates are

compared to the rates for non-Hispanic whites. See 2004 U.S. Census Report.

The 2004 disparities between Hispanic and white voter registration also become more

severe when Hispanics are taken out of the "white" category. Although Congress reported a 20

percentage point gap in voter registration between Hispanics and whites in Texas in 2004, see

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

is compared to the rate for non-Hispanic whites, see 2004 U.S. Census Report. Even greater

gaps bet

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