# Shelby County, Alabama v. Holder > District Court, District of Columbia · September 21, 2011 URL: https://www.frixlaw.com/law-library/cases/2663632 ## Case - **Court:** District Court, District of Columbia - **Decided:** September 21, 2011 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Judge John D. Bates - **Nature of suit:** Civil - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2663632 ## How later opinions describe it (automated extraction) - describing Shelby County's involvement in Dillard - explaining that the court must "identify with some precision the scope of the constitutional right at issue" - noting that the Voting Rights Act was only enacted after "traditional litigation had proved ineffective" in the course of describing why the Act reflects an appropriately "detailed but limited remedial scheme" - explaining that the Voting Rights Act, unlike Title I of the ADA, was targeted at "those areas of the Nation where abundant evidence of States' systematic denial of [voting] rights was identified" ## Opinion text 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, -1- 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 -2- 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 -3- 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- -4- 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 -5- 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). -6- "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 -7- 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. -8- 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 -9- 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). -10- 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 -11- "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 -12- 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 -13- 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 -14- 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 -15- 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 -16- 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, -17- "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 -18- 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 -19- 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 -20- 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. -21- 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 -22- 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. -23- 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 -24- 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 -26- "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 -27- 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 -28- 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. -29- 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 -30- 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). -32- 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 -33- 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 -34- 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 -35- 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]. -36- 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 -37- 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). -38- 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. -39- 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 -40- 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 -41- 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). -42- 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. -44- 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 -45- 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 -46- 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. -47- '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 -48- 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). -49- 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 -50- 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 -51- 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 -52- 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 -53- 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 -54- 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, -55- 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. -56- 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 -57- "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"). -58- 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 Boe [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2663632. Public record. Not legal advice.