Shelby County, Ala. v. Holder

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 19, 2012 Decided May 18, 2012

No. 11-5256

SHELBY COUNTY, ALABAMA,

APPELLANT

v.

ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY

GENERAL OF THE UNITED STATES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00651)

Bert W. Rein argued the cause for appellant. With him on

the briefs were William S. Consovoy, Thomas R. McCarthy,

and Brendan J. Morrissey.

John C. Neiman Jr., Solicitor General, Office of the

Attorney General for the State of Alabama, and Robert D.

Tambling, Assistant Attorney General, were on the brief for

amicus curiae State of Alabama in support of appellant.

Thomas C. Horne, Attorney General, Office of the

Attorney General for the State of Arizona, David R. Cole,

Solicitor General, Michele L. Forney and James E. Barton II,

Assistant Attorneys General, and Samuel S. Olens, Attorney

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General, Office of the Attorney General of the State of

Georgia, were on the brief for amici curiae States of Arizona

and Georgia.

Steven J. Lechner was on the brief as amicus curiae

Mountain States Legal Foundation in support of appellant.

Sarah E. Harrington, Attorney, U.S. Department of

Justice, argued the cause for appellee. With her on the brief

were Ronald C. Machen Jr., U.S. Attorney, and Diana K.

Flynn and Linda F. Thome, Attorneys.

Eric T. Schneiderman, Attorney General, Office of the

Attorney General for the State of New York, Barbara D.

Underwood, Solicitor General. Jim Hood, Attorney General,

Office of the Attorney General for the State of Mississippi,

and Kamala D. Harris, Attorney General, Office of the

Attorney General for the State of California, were on the brief

for amici curiae New York, et al., in support of appellees.

John Payton, Debo P. Adegbile, Elise C. Boddie, Ryan P.

Haygood, Dale E. Ho, Natasha M. Korgaonkar, Arthur B.

Spitzer, Jon M. Greenbaum, and John M. Nonna were on the

brief for intervenors-appellees Earl Cunningham, et al., in

support of appellees.

Deborah N. Archer and Aderson B. Francois were on the

brief for amicus curiae The New York Law School Racial

Justice Project in support of appellee.

Elizabeth B. Wydra was on the brief for amicus curiae

Constitutional Accountability Center in support of appellees.

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Before: TATEL and GRIFFITH, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge TATEL.

Dissenting opinion filed by Senior Circuit Judge

WILLIAMS.

TATEL, Circuit Judge: In Northwest Austin Municipal

Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the

Supreme Court raised serious questions about the continued

constitutionality of section 5 of the Voting Rights Act of

1965. Section 5 prohibits certain “covered jurisdictions” from

making any change in their voting procedures without first

demonstrating to either the Attorney General or a three-judge

district court in Washington that the change “neither has the

purpose nor will have the effect of denying or abridging the

right to vote on account of race or color.” 42 U.S.C.

§ 1973c(a). The Supreme Court warned that the burdens

imposed by section 5 may no longer be justified by current

needs and that its geographic coverage may no longer

sufficiently relate to the problem it targets. Although the

Court had no occasion to resolve these questions, they are

now squarely before us. Shelby County, Alabama, a covered

jurisdiction, contends that when Congress reauthorized

section 5 in 2006, it exceeded its enumerated powers. The

district court disagreed and granted summary judgment for

the Attorney General. For the reasons set forth in this opinion,

we affirm.

I.

The Framers of our Constitution sought to construct a

federal government powerful enough to function effectively

yet limited enough to preserve the hard-earned liberty fought

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for in the War of Independence. They feared not state

government, but centralized national government, long the

hallmark of Old World monarchies. As a result, “[t]he powers

delegated by the . . . Constitution to the federal government,

are few and defined,” while “[t]hose which are to remain in

the State governments are numerous and indefinite.” The

Federalist No. 45 (James Madison). Close to the people, state

governments would protect their liberties.

But the experience of the nascent Republic, divided by

slavery, taught that states too could threaten individual

liberty. So after the Civil War, the Reconstruction

Amendments were added to the Constitution to limit state

power. Adopted in 1865, the Thirteenth Amendment

prohibited involuntary servitude. Adopted three years later,

the Fourteenth Amendment prohibited any state from

“depriv[ing] any person of life, liberty, or property, without

due process of law” or “deny[ing] to any person within its

jurisdiction the equal protection of the laws,” and granted

Congress “power to enforce” its provisions “by appropriate

legislation.” U.S. Const. amend. XIV. Finally, the Fifteenth

Amendment declared that “[t]he right of citizens . . . 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” and vested Congress with “power to enforce this

article by appropriate legislation.” U.S. Const. amend. XV.

Following Reconstruction, however, “the blight of racial

discrimination in voting . . . infected the electoral process in

parts of our country for nearly a century.” South Carolina v.

Katzenbach, 383 U.S. 301, 308 (1966). As early as 1890, “the

States of Alabama, Georgia, Louisiana, Mississippi, North

Carolina, South Carolina, and Virginia” began employing

tests and devices “specifically designed to prevent Negroes

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from voting.” Id. at 310. Among the most notorious devices

were poll taxes, literacy tests, grandfather clauses, and

property qualifications. See Shelby Cnty. v. Holder, 811 F.

Supp. 2d 424, 428 (D.D.C. 2011); see also Katzenbach, 383

U.S. at 310–11. Also widely employed, both immediately

following Reconstruction and again in the mid-twentieth

century, were “laws designed to dilute black voting strength,”

including laws that “gerrymandered election districts,

instituted at-large elections, annexed or deannexed

land . . . and required huge bonds of officeholders.” Shelby

Cnty., 811 F. Supp. 2d at 429 (internal quotation marks

omitted).

The courts and Congress eventually responded. The

Supreme Court struck down grandfather clauses, Guinn v.

United States, 238 U.S. 347 (1915), and white primaries,

Smith v. Allwright, 321 U.S. 649 (1944). Congress “enact[ed]

civil rights legislation in 1957, 1960, and 1964, which sought

to ‘facilitat[e] case-by-case litigation against voting

discrimination.’ ” Shelby Cnty., 811 F. Supp. 2d at 430

(alteration in original) (quoting Katzenbach, 383 U.S. at 313).

But Congress soon determined that such measures were

inadequate: case-by-case litigation, in addition to being

expensive, was slow—slow to come to a result and slow to

respond once a state switched from one discriminatory device

to the next—and thus had “done little to cure the problem of

voting discrimination.” Katzenbach, 383 U.S. at 313.

Determined to “rid the country of racial discrimination in

voting,” id. at 315, Congress passed the Voting Rights Act of

1965.

Unlike prior legislation, the 1965 Act combined a

permanent, case-by-case enforcement mechanism with a set

of more stringent, temporary remedies designed to target

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those areas of the country where racial discrimination in

voting was concentrated. Section 2, the Act’s main permanent

provision, forbids any “standard, practice, or procedure” that

“results in a denial or abridgment of the right of any citizen of

the United States to vote on account of race or color.” 42

U.S.C. § 1973(a). Applicable nationwide, section 2 enables

individuals to bring suit against any state or jurisdiction to

challenge voting practices that have a discriminatory purpose

or result. See Thornburg v. Gingles, 478 U.S. 30, 35 (1986).

Reaching beyond case-by-case litigation and applying

only in certain “covered jurisdictions,” section 5—the focus

of this litigation—“prescribes remedies . . . which go into

effect without any need for prior adjudication.” Katzenbach,

383 U.S. at 327–28. Section 5 suspends “all changes in state

election procedure until they [are] submitted to and approved

by a three-judge Federal District Court in Washington, D.C.,

or the Attorney General.” Nw. Austin, 129 S. Ct. at 2509. A

jurisdiction seeking to change its voting laws or procedures

must either submit the change to the Attorney General or seek

preclearance directly from the three-judge court. If it opts for

the former and if the Attorney General lodges no objection

within sixty days, the proposed law can take effect. 42 U.S.C.

§ 1973c(a). But if the Attorney General lodges an objection,

the submitting jurisdiction may either request reconsideration,

28 C.F.R. § 51.45(a), or seek a de novo determination from

the three-judge district court. 42 U.S.C. § 1973c(a). Either

way, preclearance may be granted only if the jurisdiction

demonstrates that the proposed change to its voting law

neither “has the purpose nor . . . the effect of denying or

abridging the right to vote on account of race or color.” Id.

Prior to section 5’s enactment, states could stay ahead of

plaintiffs and courts “ ‘by passing new discriminatory voting

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laws as soon as the old ones had been struck down.’ ” Beer v.

United States, 425 U.S. 130, 140 (1976) (quoting H.R. Rep.

No. 94-196, at 57–58 (1975)). But section 5 “shift[ed] the

advantage of time and inertia from the perpetrators of the evil

to its victim.” Katzenbach, 383 U.S. at 328. It did so by

placing “the burden on covered jurisdictions to show their

voting changes are nondiscriminatory before those changes

can be put into effect.” Shelby Cnty., 811 F. Supp. 2d at 431.

Section 5 thus “pre-empted the most powerful tools of black

disenfranchisement,” Nw. Austin, 129 S. Ct. at 2509, resulting

in “undeniable” improvements in the protection of minority

voting rights, id. at 2511.

Section 4(b) contains a formula that, as originally

enacted, applied section 5’s preclearance requirements to any

state or political subdivision of a state that “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.” Shelby Cnty., 811 F. Supp. 2d at 432 (citing Voting

Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437,

438 (“1965 Act”)). Congress chose these criteria carefully. It

knew precisely which states it sought to cover and crafted the

criteria to capture those jurisdictions. Id. (citing testimony

before Congress in 2005–2006). Unsurprisingly, then, the

jurisdictions originally covered in their entirety, Alabama,

Georgia, Louisiana, Mississippi, South Carolina, and

Virginia, “were those southern states with the worst historical

records of racial discrimination in voting.” Id.

Because section 4(b)’s formula could be both over- and

underinclusive, Congress incorporated two procedures for

adjusting coverage over time. First, as it existed in 1965,

section 4(a) allowed jurisdictions to earn exemption from

coverage by obtaining from a three-judge district court a

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declaratory judgment that in the previous five years (i.e.,

before they became subject to the Act) they had used no test

or device “for the purpose or with the effect of denying or

abridging the right to vote on account of race or color.” 1965

Act § 4(a). This “bailout” provision, as subsequently

amended, addresses potential overinclusiveness, allowing

jurisdictions with clean records to terminate their section 5

preclearance obligations. Second, section 3(c) authorizes

federal courts to require preclearance by any non-covered

state or political subdivision found to have violated the

Fourteenth or Fifteenth Amendments. 42 U.S.C. § 1973a(c).

Specifically, courts presiding over voting discrimination suits

may “retain jurisdiction for such period as [they] may deem

appropriate” and order that during that time no voting change

take effect unless either approved by the court or unopposed

by the Attorney General. Id. This judicial “bail-in” provision

addresses the formula’s potential underinclusiveness.

As originally enacted in 1965, section 5 was to remain in

effect for five years. In South Carolina v. Katzenbach, the

Supreme Court sustained the constitutionality of section 5,

holding that its provisions “are a valid means for carrying out

the commands of the Fifteenth Amendment.” 383 U.S. at 337.

Congress subsequently renewed the temporary provisions,

including sections 4(b) and 5, in 1970 (for five years), then in

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

years). In each version, “[t]he coverage formula [in section

4(b)] remained the same, based on the use of voting-eligibility

tests [or devices] and the rate of registration and turnout

among all voters, but the pertinent dates for assessing these

criteria moved from 1964 to include 1968 and eventually

1972.” Nw. Austin, 129 S. Ct. at 2510. In 1975 Congress

made one significant change to section 4(b)’s scope: it

amended the definition of “test or device” to include the

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practice of providing only English-language voting materials

in jurisdictions with significant non-English-speaking

populations. Act of Aug. 6, 1975, Pub. L. No. 94-73, § 203,

89 Stat. 400, 401–02 (codified at 42 U.S.C. § 1973b(f)(3)).

Although not altering the basic coverage formula, this change

expanded section 4(b)’s scope to encompass jurisdictions

with records of voting discrimination against “language

minorities.” See Briscoe v. Bell, 432 U.S. 404, 405 (1977).

The Supreme Court sustained the constitutionality of each

extension, respectively, in Georgia v. United States, 411 U.S.

526 (1973), City of Rome v. United States, 446 U.S. 156

(1980), and Lopez v. Monterey County, 525 U.S. 266 (1999).

Significantly for the issue before us, the 1982 version of

the Voting Rights Act made bailout substantially more

permissive. Prior to 1982, bailout was extremely limited: no

jurisdiction could bail out if it had used discriminatory voting

tests or practices when it first became subject to section 5,

even if it had since eliminated those practices. Shelby Cnty.,

811 F. Supp. 2d at 434. By contrast, after 1982 the Act

allowed bailout by any jurisdiction with a “clean” voting

rights record over the previous ten years. Id. The 1982

reauthorization also permitted a greater number of

jurisdictions to seek bailout. Previously, “only covered states

(such as Alabama) or separately-covered political

subdivisions (such as individual North Carolina counties)

were eligible to seek bailout.” Id. After 1982, political

subdivisions within a covered state could bail out even if the

state as a whole was ineligible. Id.

Setting the stage for this litigation, Congress extended the

Voting Rights Act for another twenty-five years in 2006. See

Fannie Lou Hamer, Rosa Parks, and Coretta Scott King

Voting Rights Act Reauthorization and Amendments Act of

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2006, Pub. L. No. 109-246, 120 Stat. 577 (“2006 Act”). In

doing so, it acted on the basis of a legislative record “over

15,000 pages in length, and includ[ing] statistics, findings by

courts and the Justice Department, and first-hand accounts of

discrimination.” Shelby Cnty., 811 F. Supp. 2d at 435

(internal quotation marks omitted). Congress also amended

section 5 to overrule the Supreme Court’s decisions in

Georgia v. Ashcroft, 539 U.S. 461, 479–80 (2003) (which

held 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” and that

“a court should not focus solely on the comparative ability of

a minority group to elect a candidate of its choice”), and Reno

v. Bossier Parish School Board, 528 U.S. 320, 328 (2000)

(“Bossier II”) (which held that “the ‘purpose’ prong of § 5

covers only retrogressive dilution”). See 2006 Act § 5

(codified at 42 U.S.C. § 1973c(b)–(d)).

The 2006 Act’s constitutionality was immediately

challenged by “a small utility district” subject to its

provisions. See Nw. Austin, 129 S. Ct. at 2508. After finding

the district ineligible for bailout, the three-judge district court

concluded that the reauthorized Voting Rights Act was

constitutional. Nw. Austin Mun. Util. Dist. No. One v.

Mukasey, 573 F. Supp. 2d 221, 283 (D.D.C. 2008). On

appeal, the Supreme Court identified two “serious . . .

questions” about section 5’s continued constitutionality,

namely, whether the “current burdens” it imposes are

“justified by current needs,” and whether its “disparate

geographic coverage is sufficiently related to the problem that

it targets.” Nw. Austin, 129 S. Ct. at 2512–13. But invoking

the constitutional avoidance doctrine, id. at 2508, 2513, the

Court interpreted the statute to allow any covered jurisdiction,

including the utility district bringing suit in that case, to seek

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bailout, thus avoiding the need to resolve the “big question,”

id. at 2508: Did Congress exceed its constitutional authority

when it reauthorized section 5? Now that question is squarely

presented.

II.

Shelby County filed suit in the U.S. District Court for the

District of Columbia, seeking both a declaratory judgment

that sections 4(b) and 5 of the Voting Rights Act are facially

unconstitutional and a permanent injunction prohibiting the

Attorney General from enforcing them. Shelby Cnty., 811 F.

Supp. 2d at 427. Unlike the utility district in Northwest

Austin, Shelby County never sought bailout, and for good

reason. Because the county had held several special elections

under a law for which it failed to seek preclearance and

because the Attorney General had recently objected to

annexations and a redistricting plan proposed by a city within

Shelby County, the County was clearly ineligible for bailout.

See id. at 446 n.6. As the district court—Judge John D.

Bates—recognized, the “serious constitutional questions”

raised in Northwest Austin could “no longer be avoided.” Id.

at 427.

Addressing these questions in a thorough opinion, the

district court upheld the constitutionality of the challenged

provisions and granted summary judgment for the Attorney

General. After reviewing the extensive legislative record and

the arguments made by Shelby County, the Attorney General,

and a group of defendant-intervenors, the district court

concluded that “Section 5 remains a ‘congruent and

proportional remedy’ to the 21st century problem of voting

discrimination in covered jurisdictions.” Id. at 428.

Responding to the Supreme Court’s concerns in Northwest

Austin, the district court found the record evidence of

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contemporary discrimination in covered jurisdictions “plainly

adequate to justify section 5’s strong remedial and

preventative measures,” id. at 492 (internal quotation marks

omitted), and to support Congress’s predictive judgment that

failure to reauthorize section 5 “ ‘would leave minority

citizens with the inadequate remedy of a Section 2 action,’ ”

id. at 498 (quoting H.R. Rep. No. 109-478, at 57 (2006)). This

evidence consisted of thousands of pages of testimony,

reports, and data regarding racial disparities in voter

registration, voter turnout, and electoral success; the nature

and number of section 5 objections; judicial preclearance suits

and section 5 enforcement actions; successful section 2

litigation; the use of “more information requests” and federal

election observers; racially polarized voting; and section 5’s

deterrent effect. Id. at 465–66.

As to section 4(b), the district court acknowledged that

the legislative record “primarily focused on the persistence of

voting discrimination in covered jurisdictions—rather than on

the comparative levels of voting discrimination in covered

and non-covered jurisdictions.” Id. at 507. Nonetheless, the

district court pointed to “several significant pieces of

evidence suggesting that the 21st century problem of voting

discrimination remains more prevalent in those jurisdictions

that have historically been subject to the preclearance

requirement”—including the disproportionate number of

successful section 2 suits in covered jurisdictions and the

“continued prevalence of voting discrimination in covered

jurisdictions notwithstanding the considerable deterrent effect

of Section 5.” Id. at 506–07. Thus, although observing that

Congress’s reauthorization “ensured that Section 4(b) would

continue to focus on those jurisdictions with the worst

historical records of voting discrimination,” id. at 506, the

district court found this continued focus justified by current

13

evidence that discrimination remained concentrated in those

juridictions. See id. (explaining that Congress did not renew

the coverage formula to punish past sins, but rather because it

found “substantial evidence of contemporary voting

discrimination by the very same jurisdictions that had

histories of unconstitutional conduct”). Finally, the district

court emphasized that Congress had based reauthorization not

on “a perfunctory review of a few isolated examples of voting

discrimination by covered jurisdictions,” but had

“ ‘approached its task seriously and with great care.’ ” Id. at

496 (quoting Nw. Austin, 573 F. Supp. 2d at 265). Given this,

the district court concluded that Congress’s predictive

judgment about the continued need for section 5 in covered

jurisdictions was due “substantial deference,” id. at 498

(internal quotation marks omitted), and therefore “decline[d]

to overturn Congress’s carefully considered judgment,” id. at

508. Our review is de novo. See McGrath v. Clinton, 666 F.3d

1377, 1379 (D.C. Cir. 2012) (“We review the district court’s

decision to grant summary judgment de novo.”).

On appeal, Shelby County reiterates its argument that,

given the federalism costs section 5 imposes, the provision

can be justified only by contemporary evidence of the kind of

“ ‘unremitting and ingenious defiance’ ” that existed when the

Voting Rights Act was originally passed in 1965. Appellant’s

Br. 8 (quoting Katzenbach, 383 U.S. at 309). Insisting that the

legislative record lacks “evidence of a systematic campaign of

voting discrimination and gamesmanship by the covered

jurisdictions,” Shelby County contends that section 5’s

remedy is unconstitutional because it is no longer congruent

and proportional to the problem it seeks to cure. Id. at 8–9;

see also City of Boerne v. Flores, 521 U.S. 507, 520 (1997)

(“There must be a congruence and proportionality between

the injury to be prevented or remedied and the means adopted

14

to that end.”). In addition, Shelby County argues, section 4(b)

contains an “obsolete” coverage formula that fails to identify

the problem jurisdictions, and because the jurisdictions it

covers are not uniquely problematic, the formula is no longer

rational “ ‘in both practice and theory.’ ” Appellant’s Br. 11–

12 (quoting Katzenbach, 383 U.S. at 330).

III.

Northwest Austin sets the course for our analysis,

directing us to conduct two principal inquiries. First,

emphasizing that section 5 “authorizes federal intrusion into

sensitive areas of state and local policymaking that imposes

substantial federalism costs,” the Court made clear that

“[p]ast success alone . . . is not adequate justification to retain

the preclearance requirements.” 129 S. Ct. at 2511.

Conditions in the South, the Court pointed out, “have

unquestionably improved”: racial disparities in voter

registration and turnout have diminished or disappeared, and

“minority candidates hold office at unprecedented levels.” Id.

Of course, “[i]t may be that these improvements are

insufficient and that conditions continue to warrant

preclearance under the Act.” Id. at 2511–12. But “the Act

imposes current burdens,” and we must determine whether

those burdens are “justified by current needs.” Id. at 2512.

Second, the Act, through section 4(b)’s coverage

formula, “differentiates between the States, despite our

historic tradition that all the States enjoy equal sovereignty.”

Id. (internal quotation marks omitted). And while equal

sovereignty “ ‘does not bar . . . remedies for local evils,’ ” id.

(omission in original) (quoting Katzenbach, 383 U.S. at 328–

29), the Court warned that section 4(b)’s coverage formula

may “fail[] to account for current political conditions”—that

is, “[t]he evil that § 5 is meant to address may no longer be

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concentrated in the jurisdictions singled out for preclearance.”

Id. These concerns, the Court explained, “are underscored by

the argument” that section 5 may require covered jurisdictions

to adopt race-conscious measures that, if adopted by non-

covered jurisdictions, could violate section 2 of the Act or the

Fourteenth Amendment. Id. (citing Georgia v. Ashcroft, 539

U.S. at 491 (Kennedy, J., concurring) (“[C]onsiderations of

race that would doom a redistricting plan under the

Fourteenth Amendment or § 2 seem to be what save it under

§ 5.”)). To be sure, such “[d]istinctions can be justified in

some cases.” Id. But given section 5’s serious federalism

costs, Northwest Austin requires that we ask whether section

4(b)’s “disparate geographic coverage is sufficiently related

to the problem that it targets.” Id.

Before addressing Northwest Austin’s two questions, we

must determine the appropriate standard of review. As the

Supreme Court noted, the standard applied to legislation

enacted pursuant to Congress’s Fifteenth Amendment power

remains unsettled. See id. at 2512–13 (noting, but declining to

resolve the parties’ dispute over the appropriate standard of

review). Reflecting this uncertainty, Shelby County argues

that the “congruence and proportionality” standard for

Fourteenth Amendment legislation applies, see City of

Boerne, 521 U.S. at 520, whereas the Attorney General insists

that Congress may use “any rational means” to enforce the

Fifteenth Amendment, see Katzenbach, 383 U.S. at 324.

Although the Supreme Court declined to resolve this issue in

Northwest Austin, the questions the Court raised—whether

section 5’s burdens are justified by current needs and whether

its disparate geographic reach is sufficiently related to that

problem—seem to us the very questions one would ask to

determine whether section 5 is “congruen[t] and

proportional[] [to] the injury to be prevented,” City of Boerne,

16

521 U.S. at 520. We thus read Northwest Austin as sending a

powerful signal that congruence and proportionality is the

appropriate standard of review. In any event, if section 5

survives the arguably more rigorous “congruent and

proportional” standard, it would also survive Katzenbach’s

“rationality” review.

Of course, this does not mean that the Supreme Court’s

prior decisions upholding the Voting Rights Act are no longer

relevant. Quite to the contrary, Katzenbach and City of Rome

tell us a great deal about “[t]he evil that § 5 is meant to

address,” Nw. Austin, 129 S. Ct. at 2512, as well as the types

of evidence that are probative of “current needs,” id.

Moreover, City of Boerne relied quite heavily on Katzenbach

for the proposition that section 5, as originally enacted and

thrice extended, was a model of congruent and proportional

legislation. See City of Boerne, 521 U.S. at 525–26, 530

(relying on Katzenbach to explain how the Court evaluates

remedial legislation under the Fourteenth and Fifteenth

Amendments); see also id. at 532–33 (describing

characteristics of the Voting Rights Act, as analyzed by

Katzenbach and City of Rome, that made it congruent and

proportional).

We can likewise seek guidance from the Court’s

Fourteenth Amendment decisions applying the congruent and

proportional standard to other legislation. In those cases, the

Court made clear that the record compiled by Congress must

contain evidence of state “conduct transgressing the

Fourteenth Amendment’s substantive provisions,” Coleman v.

Court of Appeals of Md., 132 S. Ct. 1327, 1333 (2012), and

that invasions of state interests based on “abstract

generalities,” id. at 1337, or “supposition and conjecture,” id.

at 1336, cannot be sustained. Once satisfied that Congress has

17

identified a pattern of constitutional violations, however, the

Court has deferred to Congress’s judgment, even in the face

of a rather sparse legislative record. In Nevada Department of

Human Resources v. Hibbs, for example, the Court upheld the

constitutionality of the family-care provision of the Family

and Medical Leave Act, which allows eligible employees to

take up to twelve weeks of unpaid leave, and “creates a

private right of action to seek both equitable relief and money

damages against any employer (including a public agency).”

538 U.S. 721, 724 (2003) (internal quotation marks omitted).

Although evidence of discriminatory leave policies by state

governments was hardly extensive, see Tennessee v. Lane,

541 U.S. 509, 528–29 & n.17 (2004) (describing the limited

evidence relied upon in Hibbs, “little of which concerned

unconstitutional state conduct”), the Court deferred to

Congress’s “reasonabl[e] conclu[sions],” Hibbs, 538 U.S. at

734, and held that the evidence was “weighty enough to

justify” prophylactic legislation, id. at 735. Similarly, in Lane

the Court considered whether Congress had authority under

the Fourteenth Amendment to pass Title II of the Americans

with Disabilities Act, which prohibits public entities,

including states, from discriminating on the basis of disability

in their services, programs, and activities. 541 U.S. at 513.

Looking into the record and noting the long history of state

discrimination against disabled individuals, the Court found it

“not difficult to perceive the harm that Title II is designed to

address.” See id. at 524–25. It held, again with great

deference to Congress’s take on the evidence, that the record,

“including judicial findings of unconstitutional state action,

and statistical, legislative, and anecdotal evidence of the

widespread exclusion of persons with disabilities from the

enjoyment of public services,” made “clear beyond

peradventure” that Title II was appropriate prophylactic

legislation, id. at 529—and this despite the fact that the record

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included only two reported decisions finding unconstitutional

state action of the precise type at issue, see id. at 544

(Rehnquist, C.J., dissenting). By contrast, the Court has found

that Congress exceeded its Fourteenth Amendment authority

where the legislative record revealed a “virtually complete

absence” of evidence of unconstitutional state conduct. Id. at

521 (majority opinion) (citing Fla. Prepaid Postsecondary

Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647–48

(1999)); see also City of Boerne, 521 U.S. at 530 (legislative

record “lack[ed] examples of modern instances” of the

targeted constitutional violations); Kimel v. Fla. Bd. of

Regents, 528 U.S. 62, 89 (2000) (“Congress never identified

any pattern of age discrimination by the States, much less any

discrimination whatsoever that rose to the level of

constitutional violation.”).

We read this case law with two important qualifications.

First, we deal here with racial discrimination in voting, one of

the gravest evils that Congress can seek to redress. See Yick

Wo v. Hopkins, 118 U.S. 356, 370 (1886) (“[The right to vote]

is regarded as a fundamental political right, because

preservative of all rights.”); Adarand Constructors, Inc. v.

Pena, 515 U.S. 200, 216 (1995) (“racial classifications [are]

constitutionally suspect and subject to the most rigid scrutiny”

(citation omitted) (internal quotation marks omitted)). When

Congress seeks to combat racial discrimination in voting—

protecting both the right to be free from discrimination based

on race and the right to be free from discrimination in voting,

two rights subject to heightened scrutiny—it acts at the apex

of its power. See Hibbs, 538 U.S. at 736 (noting that it is

“easier for Congress to show a pattern of unconstitutional

violations” when it enforces rights subject to heightened

scrutiny); Lane, 541 U.S. at 561–63 (Scalia, J., dissenting)

(“Giving [Congress’s enforcement powers] more expansive

19

scope with regard to measures directed against racial

discrimination by the States accords to practices that are

distinctively violative of the principal purpose of the

[Reconstruction Amendments] a priority of attention that [the

Supreme] Court envisioned from the beginning, and that has

repeatedly been reflected in [the Court’s] opinions.”).

Expressly prohibited by the Fifteenth Amendment, racial

discrimination in voting is uniquely harmful in several ways:

it cannot be remedied by money damages and, as Congress

found, lawsuits to enjoin discriminatory voting laws are

costly, take years to resolve, and leave those elected under the

challenged law with the benefit of incumbency.

Second, although the federalism costs imposed by the

statutes at issue in Hibbs and Lane (abrogating sovereign

immunity to allow suits against states for money damages)

are no doubt substantial, the federalism costs imposed by

section 5 are a great deal more significant. To be sure, in most

cases the preclearance process is “routine” and “efficient[],”

resulting in prompt approval by the Attorney General and

rarely if ever delaying elections. See Reauthorizing the Voting

Rights Act’s Temporary Provisions: Policy Perspectives and

Views from the Field: Hearing Before the Subcomm. on the

Constitution, Civil Rights and Propery Rights of the S. Comm.

on the Judiciary, 109th Cong. 312–13 (2006) (testimony of

Donald M. Wright, North Carolina State Board of Elections)

(stating that most preclearance submissions “take only a few

minutes to prepare” and that the Justice Department

cooperates with jurisdictions to ensure that “preclearance

issue[s] d[o] not delay an election”). But section 5 sweeps

broadly, requiring preclearance of every voting change no

matter how minor. Section 5 also places the burden on

covered jurisdictions to demonstrate to the Attorney General

or a three-judge district court here in Washington that the

20

proposed law is not discriminatory. Given these significant

burdens, in order to determine whether section 5 remains

congruent and proportional we are obligated to undertake a

review of the record more searching than the Supreme

Court’s review in Hibbs and Lane.

Although our examination of the record will be probing,

we remain bound by fundamental principles of judicial

restraint. Time and time again the Supreme Court has

emphasized that Congress’s laws are entitled to a

“presumption of validity.” City of Boerne, 521 U.S. at 535.

As the Court has explained, when Congress acts pursuant to

its enforcement authority under the Reconstruction

Amendments, its judgments about “what legislation is needed

. . . are entitled to much deference.” Id. (internal quotation

marks omitted). Even when applying intermediate scrutiny,

the Court has accorded Congress deference “out of respect for

its authority to exercise the legislative power,” and in

recognition that Congress “is far better equipped than the

judiciary to amass and evaluate the vast amounts of data

bearing upon legislative questions.” Turner Broad. Sys., Inc.

v. FCC, 520 U.S. 180, 195, 196 (1997) (internal quotation

marks omitted) (rejecting a First Amendment challenge to the

“must-carry” provisions of the Cable Television Consumer

Protection and Competition Act). And critically for our

purposes, although Northwest Austin raises serious questions

about section 5’s constitutionality, nothing in that opinion

alters our duty to resolve those questions using traditional

principles of deferential review. Indeed, the Court reiterated

not only that “judging the constitutionality of an Act of

Congress is ‘the gravest and most delicate duty that [a court]

is called on to perform,’ ” Nw. Austin, 129 S. Ct. at 2513

(quoting Blodgett v. Holden, 275 U.S. 142, 147–48 (1927)

(Holmes, J., concurring)), but also that “[t]he Fifteenth

21

Amendment empowers ‘Congress,’ not the Court, to

determine in the first instance what legislation is needed to

enforce it,” id.

A.

Guided by these principles, we begin with Northwest

Austin’s first question: Are the current burdens imposed by

section 5 “justified by current needs”? 129 S. Ct. at 2512. The

Supreme Court raised this question because, as it emphasized

and as Shelby County argues, the conditions which led to the

passage of the Voting Rights Act “have unquestionably

improved[,] . . . no doubt due in significant part to the Voting

Rights Act itself.” Id. at 2511. Congress also recognized this

progress when it reauthorized the Act, finding that “many of

the first generation barriers to minority voter registration and

voter turnout that were in place prior to the [Voting Rights

Act] have been eliminated.” H.R. Rep. No. 109-478, at 12.

The dissent’s charts nicely display this progress. Racial

disparities in voter registration and turnout have “narrowed

considerably” in covered jurisdictions and are now largely

comparable to disparities nationwide. Id. at 12–17; see also

Dissenting Op. at 12–13 figs.I & II. Increased minority

voting, in turn, has “resulted in significant increases in the

number of African-Americans serving in elected offices.”

H.R. Rep. No. 109-478, at 18; see also Dissenting Op. at 15

fig.III. For example, in the six states fully covered by the

1965 Act, the number of African Americans serving in

elected office increased from 345 to 3700 in the decades since

1965. H.R. Rep. No. 109-478, at 18.

But Congress found that this progress did not tell the

whole story. It documented “continued registration and

turnout disparities” in both Virginia and South Carolina. Id. at

25. Virginia, in particular, “remain[ed] an outlier,” S. Rep.

22

No. 109-295, at 11 (2006): although 71.6 percent of white,

non-Hispanic voting age residents registered to vote in 2004,

only 57.4 percent of black voting age residents registered, a

14.2-point difference. U.S. Census Bureau, Reported Voting

and Registration of the Total Voting-Age Population, at

tbl.4a, available at http://www.census.gov/hhes/www/

socdemo/voting/publications/p20/2004/tables.html (last

visited May 9, 2012). Also, although the number of African

Americans holding elected office had increased significantly,

they continued to face barriers to election for statewide

positions. Congress found that not one African American had

yet been elected to statewide office in Mississippi, Louisiana,

or South Carolina. In other covered states, “ ‘often it is only

after blacks have been first appointed to a vacancy that they

are able to win statewide office as incumbents.’ ” H.R. Rep.

No. 109-478, at 33 (quoting Nat’l Comm’n on the Voting

Rights Act, Protecting Minority Voters: The Voting Rights

Act at Work 1982–2005, at 38 (2006) (“Nat’l Comm’n

Report”)).

Congress considered other types of evidence that, in its

judgment, “show[ed] that attempts to discriminate persist and

evolve, such that Section 5 is still needed to protect minority

voters in the future.” Id. at 21. It heard accounts of specific

instances of racial discrimination in voting. It heard analysis

and opinions by experts on all sides of the issue. It

considered, among other things, six distinct categories of

evidence: (1) Attorney General objections issued to block

proposed voting changes that would, in the Attorney

General’s judgment, have the purpose or effect of

discriminating against minorities; (2) “more information

requests” issued when the Attorney General believes that the

information submitted by a covered jurisdiction is insufficient

to allow a preclearance determination; (3) successful lawsuits

23

brought under section 2 of the Act; (4) federal observers

dispatched to monitor elections under section 8 of the Act; (5)

successful section 5 enforcement actions filed against covered

jurisdictions for failing to submit voting changes for

preclearance, as well as requests for preclearance denied by

the United States District Court for the District of Columbia;

and (6) evidence that the mere existence of section 5 deters

officials from even proposing discriminatory voting changes.

Finally, Congress heard evidence that case-by-case section 2

litigation was inadequate to remedy the racial discrimination

in voting that persisted in covered jurisdictions.

Before delving into the legislative record ourselves, we

consider two arguments raised by Shelby County that, if

meritorious, would significantly affect how we evaluate that

record.

First, Shelby County argues that section 5 can be

sustained only on the basis of current evidence of “a

widespread pattern of electoral gamesmanship showing

systematic resistance to the Fifteenth Amendment.”

Appellant’s Br. 23. According to the County, the preclearance

remedy may qualify as congruent and proportional only

“when it addresses a coordinated campaign of discrimination

intended to circumvent the remedial effects of direct

enforcement of Fifteenth Amendment voting rights.” Id. at 7.

We disagree. For one thing, how could we demand evidence

of gamesmanship of the sort present at the time of

Katzenbach given that section 5 preclearance makes such

tactics virtually impossible? Equally important, Shelby

County’s argument rests on a misreading of Katzenbach.

Although the Court did describe the situation in 1965 as one

of “unremitting and ingenious defiance of the Constitution,”

Katzenbach, 383 U.S. at 309, nothing in Katzenbach suggests

24

that such gamesmanship was necessary to the Court’s

judgment that section 5 was constitutional. Rather, the critical

factor was that “Congress had found that case-by-case

litigation was inadequate to combat widespread and persistent

discrimination in voting.” Id. at 328; see also id. at 313–15

(explaining why laws facilitating case-by-case litigation had

“proved ineffective”). In City of Rome, the Court, while

recognizing that “undeniable” progress had been made,

sustained section 5’s constitutionality without ever

mentioning gamesmanship of any kind, 446 U.S. at 181–82; it

relied instead on racial disparities in registration, the low

number of minority elected officials, and the number and

nature of Attorney General objections, id. at 180–81.

Reinforcing this interpretation of Katzenbach and City of

Rome, the Supreme Court explained in City of Boerne that

“[t]he [Voting Rights Act’s] new, unprecedented remedies

were deemed necessary given the ineffectiveness of the

existing voting rights laws, and the slow, costly character of

case-by-case litigation,” 521 U.S. at 526 (citation omitted).

The Court reiterated the point in Board of Trustees of the

University of Alabama v. Garrett, 531 U.S. 356, 373 (2001):

“In [enacting the Voting Rights] Act . . . Congress also

determined that litigation had proved ineffective . . . .”

This emphasis on the inadequacy of case-by-case

litigation makes sense: if section 2 litigation is adequate to

deal with the magnitude and extent of constitutional

violations in covered jurisdictions, then Congress might have

no justification for requiring states to preclear their voting

changes. Put another way, what is needed to make section 5

congruent and proportional is a pattern of racial

discrimination in voting so serious and widespread that case-

by-case litigation is inadequate. Given this, the question

before us is not whether the legislative record reflects the kind

25

of “ingenious defiance” that existed prior to 1965, but

whether Congress has documented sufficiently widespread

and persistent racial discrimination in voting in covered

jurisdictions to justify its conclusion that section 2 litigation

remains inadequate. If it has, then section 5’s “substantial

federalism costs” remain justified because preclearance is still

needed to remedy continuing violations of the Fifteenth

Amendment.

Second, Shelby County urges us to disregard much of the

evidence Congress considered because it involves “vote

dilution, going to the weight of the vote once cast, not access

to the ballot.” Appellant’s Br. 26. Specifically, the County

faults Congress for relying on selective annexations, certain

redistricting techniques, at-large elections, and other practices

that do not prevent minorities from voting but instead “dilute

minority voting strength,” 2006 Act § 2(b)(4)(A). According

to the County, because the Supreme Court has “never held

that vote dilution violates the Fifteenth Amendment,” Bossier

II, 528 U.S. at 334 n.3, we may not rely on such evidence to

sustain section 5 as a valid exercise of Congress’s Fifteenth

Amendment enforcement power.

It is true that neither the Supreme Court nor this court has

ever held that intentional vote dilution violates the Fifteenth

Amendment. But the Fourteenth Amendment prohibits vote

dilution intended “invidiously to minimize or cancel out the

voting potential of racial or ethnic minorities.” City of Mobile

v. Bolden, 446 U.S. 55, 66 (1980); see also, e.g., Shaw v.

Reno, 509 U.S. 630, 641 (1993). Although the Court’s

previous decisions upholding section 5 focused on Congress’s

power to enforce the Fifteenth Amendment, the same

“congruent and proportional” standard, refined by the

inquiries set forth in Northwest Austin, appears to apply

26

“irrespective of whether Section 5 is considered [Fifteenth

Amendment] enforcement legislation, [Fourteenth

Amendment] enforcement legislation, or a kind of hybrid

legislation enacted pursuant to both amendments.” Shelby

Cnty., 811 F. Supp. 2d at 462 (footnote omitted); see also City

of Boerne, 521 U.S. at 518 (suggesting that Congress’s

“power to enforce the provisions of the Fifteenth

Amendment” is “parallel” to its power to enforce the

Fourteenth Amendment). Indeed, when reauthorizing the Act

in 2006, Congress expressly invoked its enforcement

authority under both the Fourteenth and Fifteenth

Amendments. See H.R. Rep. No. 109-478, at 90 (“[T]he

Committee finds the authority for this legislation under

amend. XIV, § 5 and amend. XV, § 2.”); id. at 53 & n.136

(stating that Congress is acting under its Fourteenth and

Fifteenth Amendment powers in reauthorizing the Voting

Rights Act). Accordingly, like Congress and the district court,

we think it appropriate to consider evidence of

unconstitutional vote dilution in evaluating section 5’s

validity. See City of Rome, 446 U.S. at 181 (citing Congress’s

finding that “[a]s registration and voting of minority citizens

increase[], other measures may be resorted to which would

dilute increasing minority voting strength” as evidence of the

continued need for section 5 (internal quotation marks

omitted)).

Consideration of this evidence is especially important

given that so-called “second generation” tactics like

intentional vote dilution are in fact decades-old forms of

gamesmanship. That is, “as African Americans made progress

in abolishing some of the devices whites had used to prevent

them from voting,” both in the late nineteenth century and

again in the 1950s and 1960s, “[o]fficials responded by

adopting new measures to minimize the impact of black

27

reenfranchisement.” Voting Rights Act: Evidence of

Continued Need: Hearing Before the Subcomm. on the

Constitution of the H. Comm. on the Judiciary, 109th Cong.

141–43 (2006) (“Evidence of Continued Need”). These

measures—“well-known” tactics such as “ ‘pack[ing]’ ”

minorities into a single district, spreading minority voters

thinly among several districts, annexing predominately white

suburbs, and so on—were prevalent “forms of vote dilution”

then, and Congress determined that these persist today. Id.

Specifically, Congress found that while “first generation

barriers”—flagrant attempts to deny access to the polls that

were pervasive at the time of Katzenbach—have diminished,

“second generation barriers” such as vote dilution have been

“constructed to prevent minority voters from fully

participating in the electoral process.” 2006 Act § 2(b)(2)

(congressional findings). Although such methods may be

“more subtle than the visible methods used in 1965,”

Congress concluded that their “effect and results are the same,

namely a diminishing of the minority community’s ability to

fully participate in the electoral process and to elect their

preferred candidates of choice.” H.R. Rep. No. 109-478, at 6.

Having resolved these threshold issues, we return to the

basic question: Does the legislative record contain sufficient

probative evidence from which Congress could reasonably

conclude that racial discrimination in voting in covered

jurisdictions is so serious and pervasive that section 2

litigation remains an inadequate remedy? Reviewing the

record ourselves and focusing on the evidence most probative

of ongoing constitutional violations, we believe it does.

To begin with, the record contains numerous “examples

of modern instances” of racial discrimination in voting, City

of Boerne, 521 U.S. at 530. Just a few recent examples:

28

• Kilmichael, Mississippi’s abrupt 2001 decision to

cancel an election when “an unprecedented number” of

African Americans ran for office, H.R. Rep. No. 109-

478, at 36–37 (internal quotation marks omitted);

• Webster County, Georgia’s 1998 proposal to reduce the

black population in three of the education board’s five

single-member districts after the school district elected a

majority black school board for the first time, Voting

Rights Act: Section 5 of the Act—History, Scope, and

Purpose: Hearing Before Subcomm. on the Constitution

of the House Judiciary Comm., 109th Cong. 830–31

(2006) (“History, Scope, and Purpose”);

• Mississippi’s 1995 attempt to evade preclearance and

revive a dual registration system “initially enacted in

1892 to disenfranchise Black voters” and previously

struck down by a federal court, H.R. Rep. No. 109-478,

at 39;

• Washington Parish, Louisiana’s 1993 attempt to reduce

the impact of a majority-African American district by

“immediately creat[ing] a new at-large seat to ensure

that no white incumbent would lose his seat,” id. at 38;

• Waller County, Texas’s 2004 attempt to reduce early

voting at polling places near a historically black

university and its threats to prosecute students for

“illegal voting,” after two black students announced

their intent to run for office, Evidence of Continued

Need 185–86.

The legislative record also contains examples of overt

hostility to black voting power by those who control the

electoral process. In Mississippi, for instance, state legislators

opposed an early 1990s redistricting plan that would have

29

increased the number of black majority districts, referring to

the plan publicly as the “black plan” and privately as the

“nigger plan,” Modern Enforcement of the Voting Rights Act:

Hearing Before the S. Comm. on the Judiciary, 109th Cong.

22 (2006) (“Modern Enforcement”) (internal quotation marks

omitted); see also S. Rep. No. 109-295, at 14. In Georgia, the

state House Reapportionment Committee Chairman “told his

colleagues on numerous occasions, ‘I don’t want to draw

nigger districts,’ ” H.R. Rep. No. 109-478, at 67 (quoting

Busbee v. Smith, 549 F. Supp. 495, 501 (D.D.C. 1982)). The

district court pointed to numerous additional examples of

intentional discrimination in the legislative record. See Shelby

Cnty., 811 F. Supp. 2d at 472–76, 477–79, 480–81, 481–85,

485–87; see also Nw. Austin, 573 F. Supp. 2d at 258–62, 289–

301.

In addition to these examples of flagrant racial

discrimination, several categories of evidence in the record

support Congress’s conclusion that intentional racial

discrimination in voting remains so serious and widespread in

covered jurisdictions that section 5 preclearance is still

needed. We explore each in turn.

First, Congress documented hundreds of instances in

which the Attorney General, acting pursuant to section 5,

objected to proposed voting changes that he found would

have a discriminatory purpose or effect. Significantly,

Congress found that the absolute number of objections has

not declined since the 1982 reauthorization: the Attorney

General interposed at least 626 objections during the twenty-

two years from 1982 to 2004 (an average of 28.5 each year),

compared to 490 interposed during the seventeen years from

1965 to 1982 (an average of 28.8 each year). Evidence of

Continued Need 172; see also S. Rep. No. 109-295, at 13–14

30

(finding 754 objections between 1982 and the first half of

2006).

Formal objections were not the only way the Attorney

General blocked potentially discriminatory changes under

section 5. Congress found that between 1990 and 2005, “more

information requests” (MIRs) prompted covered jurisdictions

to withdraw or modify over 800 proposed voting changes.

Evidence of Continued Need 2553, 2565; H.R. Rep. No. 109-

478, at 40–41. Although MIRs take no position on the merits

of a preclearance request, Congress had evidence indicating

that the Attorney General sometimes uses them to “send

signals to a submitting jurisdiction about the assessment of

their proposed voting change” and to “promot[e] compliance

by covered jurisdictions.” Evidence of Continued Need 2541.

Congress found that because “[t]he actions taken by a

jurisdiction [in response to an MIR] are often illustrative of

[its] motives,” the high number of withdrawals and

modifications made in response to MIRs constitutes

additional evidence of “[e]fforts to discriminate over the past

25 years.” H.R. Rep. No. 109-478, at 40–41.

Shelby County contends that section 5 objections and

MIRs, however numerous, “do[] not signal intentional voting

discrimination” because they represent only the Attorney

General’s opinion and need not be based on discriminatory

intent. Appellant’s Br. 30–31; see also id. at 32. Underlying

this argument is a fundamental principle with which we

agree: to sustain section 5, the record must contain “evidence

of a pattern of constitutional violations,” Hibbs, 538 U.S. at

729, and voting changes violate the constitution only if

motivated by discriminatory animus, Reno v. Bossier Parish

Sch. Bd., 520 U.S. 471, 481 (1997) (“Bossier I”). Although

not all objections rest on an affirmative finding of intentional

31

discrimination, the record contains examples of many that do.

See Nw. Austin, 573 F. Supp. 2d at 289–301 (appendix

providing examples of objections based on discriminatory

intent). Between 1980 and 2004, the Attorney General issued

at least 423 objections based in whole or in part on

discriminatory intent. Voting Rights Act: Section 5—

Preclearance Standards: Hearing Before the Subcomm. on

the Constitution of the H. Comm. on the Judiciary, 109th

Cong. 180–81 (2005) (“Preclearance Standards”). Moreover,

in the 1990s, before the Supreme Court limited the Attorney

General’s ability to object based on discriminatory but non-

retrogressive intent, see Bossier II, 528 U.S. 320 (limiting the

scope of section 5’s purpose prong in a decision overturned

by the 2006 Act), “the purpose prong of Section 5 had

become the dominant legal basis for objections,”

Preclearance Standards 177, with seventy-four percent of

objections based in whole or in part on discriminatory intent,

id. at 136. Although it is true that objections represent “only

one side’s opinion,” Appellant’s Br. 30, Congress is entitled

to rely upon the Attorney General’s considered judgment

“when it prescribes civil remedies . . . under [section] 2 of the

Fifteenth Amendment.” Katzenbach, 383 U.S. at 330

(explaining that “Congress obviously may avail itself of

information from any probative source,” including evidence

“adduced by the Justice Department”). In fact, in City of

Rome the Supreme Court considered objections to be

probative evidence of unconstitutional voting discrimination.

See 446 U.S. at 181.

Shelby County also points out that the percentage of

proposed voting changes blocked by Attorney General

objections has steadily declined—from a height of 4.06

percent (1968–1972) to 0.44 percent (1978–1982) to 0.17

percent (1993–1997) and to 0.05 percent (1998–2002). An

32

Introduction to the Expiring Provisions of the Voting Rights

Act and Legal Issues Relating to Reauthorization: Hearing

Before the S. Comm. on the Judiciary, 109th Cong. 219

(2006) (“Introduction to the Expiring Provisions”). But the

most dramatic decline in the objection rate—which, as the

district court observed, “has always been low,” Shelby Cnty.,

811 F. Supp. 2d at 470—occurred in the 1970s, before the

Supreme Court upheld the Act for a third time in City of

Rome. See Introduction to the Expiring Provisions 219. Also,

the average number of objections per year has not declined,

suggesting that the level of discrimination has remained

constant as the number of proposed voting changes, many

likely quite minor, has increased. See H.R. Rep. No. 109-478,

at 22 (showing increase in the annual number of voting

changes submitted for preclearance, from 300–400 per year in

the early 1970s to 4000–5000 per year in the 1990s and

2000s). As the district court pointed out, there may be “many

plausible explanations for the recent decline in objection

rates.” See Shelby Cnty., 811 F. Supp. 2d at 471. Even in the

six years from 2000 to 2006, after objection rates had dropped

to their lowest, Attorney General objections affected some

660,000 minority voters. The Continuing Need for Section 5

Pre-Clearance: Hearing Before the S. Comm. on the

Judiciary, 109th Cong. 58 (2006) (“Continuing Need”).

Ultimately, Congress believed that the absolute number of

objections represented the better indicator of the extent of

discrimination in covered jurisdictions. This judgment—

whether to accord greater weight to absolute numbers or to

objection rates—is precisely the kind that a legislature is “far

better equipped” than a court to evaluate, Turner Broad., 520

U.S. at 195 (internal quotation marks omitted).

As for MIRs, we agree with Shelby County that they are

less probative of discrimination than objections. An MIR does

33

not represent a judgment on the merits, and submitting

jurisdictions might have many reasons for modifying or

withdrawing a proposed change in response to one. But the

record contains evidence from which Congress could

“reasonabl[y] infer[],” id. (internal quotation marks omitted),

that at least some withdrawals or modifications reflect the

submitting jurisdiction’s acknowledgement that the proposed

change was discriminatory. See Evidence of Continued Need

178 (stating that a jurisdiction’s decision to withdraw a

proposed changes in response to an MIR “is frequently a tacit

admission of one or more proposed discriminatory changes”);

id. at 809–10 (explaining that after the Attorney General

requested more information on a redistricting plan containing

only two majority-black districts, the jurisdiction withdrew

the proposal and ultimately adopted a redistricting plan with

three majority-black districts); H.R. Rep. No. 109-478, at 41

(explaining that Monterey County’s proposal to reduce the

number of polling places received preclearance only after the

County withdrew five polling place consolidations in

response to an MIR). Given this, Congress reasonably

concluded that some of the 800-plus withdrawals and

modifications in response to MIRs “reflect[]” “[e]fforts to

discriminate over the past 25 years.” H.R. Rep. No. 109-478,

at 40.

The second category of evidence relied on by Congress,

successful section 2 litigation, reinforces the pattern of

discrimination revealed by objections and MIRs. The record

shows that between 1982 and 2005, minority plaintiffs

obtained favorable outcomes in some 653 section 2 suits filed

in covered jurisdictions, providing relief from discriminatory

voting practices in at least 825 counties. Evidence of

Continued Need 208, 251. Shelby County faults the district

court for relying on evidence of successful section 2 litigation

34

“even though ‘a violation of Section 2 does not require a

showing of unconstitutional discriminatory intent.’ ”

Appellant’s Br. 34 (quoting Shelby Cnty., 811 F. Supp. 2d at

481). The County’s premise is correct: although the

Constitution prohibits only those voting laws motivated by

discriminatory intent, section 2 prohibits all voting laws for

which “ ‘based on the totality of circumstances, it is shown

that the political processes leading to nomination or election

in the State or political subdivision are not equally open to

participation by members of a [protected] class.’ ” Bartlett v.

Strickland, 556 U.S. 1, 10–11 (2009) (quoting 42 U.S.C.

§ 1973(b)). In practice, however, this “results test,” as applied

in section 2 cases, requires consideration of factors very

similar to those used to establish discriminatory intent based

on circumstantial evidence. Compare Gingles, 478 U.S. at

36–37 (listing factors considered under the results test), with

Rogers v. Lodge, 458 U.S. 613, 623–27 (1982) (relying on

virtually identical factors to affirm a finding of intentional

discrimination). Also, as the district court pointed out, “courts

will avoid deciding constitutional questions” if, as is the case

in virtually all successful section 2 actions, the litigation can

be resolved on narrower grounds. Shelby Cnty., 811 F. Supp.

2d at 482; see also, e.g., White v. Alabama, 74 F.3d 1058,

1071 n.42 (11th Cir. 1996) (“Because we dispose of the

district court’s judgment on the ground that it violates the

Voting Rights Act, we need not, and indeed, should not,

discuss whether the judgment violates the Equal Protection

Clause.”). This explains why the legislative record contains so

few published section 2 cases with judicial findings of

discriminatory intent, see Dissenting Op. at 26; 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. 986–87 (2005)

(“Impact and Effectiveness”) (report by Ellen Katz et al.)—

35

courts have no need to find discriminatory intent once they

find discriminatory effect. But Congress is not so limited.

Considering the evidence required to prevail in a section 2

case and accounting for the obligation of Article III courts to

avoid reaching constitutional questions unless necessary, we

think Congress quite reasonably concluded that successful

section 2 suits provide powerful evidence of unconstitutional

discrimination. In addition, as with Attorney General

objections, we cannot ignore the sheer number of successful

section 2 cases—653 over 23 years, averaging more than 28

each year. This high volume of successful section 2 actions is

particularly dramatic given that Attorney General objections

block discriminatory laws before they can be implemented

and that section 5 deters jurisdictions from even attempting to

enact such laws, thereby reducing the need for section 2

litigation in covered jurisdictions. See Continuing Need 26

(explaining that section 5 “makes the covered jurisdiction[s]

much ‘cleaner’ than they would have been without Section 5

coverage”).

Third, Congress relied on evidence of “the tens of

thousands of Federal observers that have been dispatched to

observe elections in covered jurisdictions.” 2006 Act

§ 2(b)(5). Specifically, 300 to 600 observers were dispatched

annually between 1984 and 2000, H.R. Rep. No. 109-478, at

44, amounting to 622 separate dispatches (most or all

involving multiple observers) to covered jurisdictions,

Evidence of Continued Need 180–82; see also 42 U.S.C.

§ 1973f(a)(2) (authorizing dispatch of federal observers to

covered jurisdictions based upon either “written meritorious

complaints from residents, elected officials, or civic

participation organizations,” or the Attorney General’s

judgment that observers are necessary to enforce the

Fourteenth or Fifteenth Amendment). Of these, sixty-six

36

percent were concentrated in five of the six states originally

covered by section 5—Alabama, Georgia, Louisiana,

Mississippi, and South Carolina. H.R. Rep. No. 109-478, at

44. In some instances, monitoring by federal observers

“bec[ame] the foundation of Department of Justice

enforcement efforts,” as in Conecuh County, Alabama, and

Johnson County, Georgia, where reports by federal observers

enabled the federal government to bring suit against county

officials for discriminatory conduct in polling locations,

ultimately resulting in consent decrees. Id.; see also Voting

Rights Act: Sections 6 and 8—The Federal Examiner and

Observer Program: Hearing Before the Subcomm. on the

Constitution of the H. Comm. on the Judiciary, 109th Cong.

42–43 (2006) (“Sections 6 and 8”). As Congress saw it, this

continued need for federal observers in covered jurisdictions

is indicative of discrimination and “demonstrates that the

discriminatory conduct experienced by minority voters is not

solely limited to tactics to dilute the voting strength of

minorities but continues to include tactics to disenfranchise,

such as harassment and intimidation inside polling locations.”

H.R. Rep. No. 109-478, at 44.

Shelby County insists that the Attorney General’s

decision to dispatch federal observers “indicates only that . . .

there might be conduct with the effect of disenfranchising

minority citizens, which might or might not be purposeful

discrimination.” Appellant’s Br. 35–36. As the district court

explained, however, “observers are not assigned to a

particular polling location based on sheer speculation; they

are only dispatched if ‘there is a reasonable belief that

minority citizens are at risk of being disenfranchised.’ ”

Shelby Cnty., 811 F. Supp. 2d at 486 (quoting H.R. Rep. No.

109-478, at 44). Indeed, the Justice Department conducts pre-

election investigations in order to identify jurisdictions where

37

federal observers are likely to be necessary. See Sections 6

and 8, at 37–39 (explaining that the Justice Department

conducts pre-election surveys and field investigations to

identify jurisdictions where federal observers will be needed).

The record shows that federal observers in fact witnessed

discrimination at the polls, sometimes in the form of

intentional harassment, intimidation, or disparate treatment of

minority voters. See id. at 30–31 (describing discriminatory

treatment and harassment of minorities by poll officials in

Alabama); id. at 34 (describing discriminatory treatment of

minority voters in Texas and Arizona); id. at 43 (describing

the exclusion of African Americans from service as poll

workers in Johnson County, Georgia). Thus, although the

deployment of federal observers is hardly conclusive

evidence of unconstitutional discrimination, we think

Congress could reasonably rely upon it as modest, additional

evidence of current needs.

Fourth, Congress found evidence of continued

discrimination in two types of preclearance-related lawsuits.

Examining the first of these—actions brought to enforce

section 5’s preclearance requirement—Congress noted that

“many defiant covered jurisdictions and State and local

officials continue to enact and enforce changes to voting

procedures without the Federal Government’s knowledge.”

H.R. Rep. No. 109-478, at 41. Between 1982 and 2004, at

least 105 successful section 5 enforcement actions were

brought against such jurisdictions. Evidence of Continued

Need 250. Shelby County believes that successful section 5

enforcement actions are “not reliable evidence of intentional

voting discrimination” because “[t]he most that a section 5

enforcement action can establish . . . is that a voting change—

and quite possibly a nondiscriminatory voting change—was

not properly submitted for preclearance.” Appellant’s Br. 34.

38

But the legislative record does contain evidence that at least

some of the 105 successful section 5 enforcement suits were

initiated in response to attempts by covered jurisdictions to

implement purposefully discriminatory laws without federal

oversight. See Shelby Cnty., 811 F. Supp. 2d at 480

(describing section 5 actions against Mississippi and Waller

County, Texas, “in which the unprecleared voting changes

appeared to have been motivated by discriminatory animus”);

Evidence of Continued Need 176 (explaining that after a

section 5 enforcement suit forced Mississippi to submit its

dual registration law for preclearance, the Attorney General

objected based on the law’s racially discriminatory purpose

and effect). Therefore, Congress could reasonably have

concluded that such cases, even if few in number, provide at

least some evidence of continued willingness to evade the

Fifteenth Amendment’s protections, for they reveal continued

efforts by recalcitrant jurisdictions not only to enact

discriminatory voting changes, but to do so in defiance of

section 5’s preclearance requirement.

In addition to section 5 enforcement suits, Congress

found evidence of continued discrimination in “the number of

requests for declaratory judgments [for preclearance] denied

by the United States District Court for the District of

Columbia.” 2006 Act § 2(b)(4)(B). The number of

unsuccessful judicial preclearance actions appears to have

remained roughly constant since 1966: twenty-five requests

were denied or withdrawn between 1982 and 2004, compared

to seventeen between 1966 and 1982. Evidence of Continued

Need 177–78, 275. Shelby County does not contest the

relevance of this evidence.

Finally, and bolstering its conclusion that section 5

remains necessary, Congress “f[ound] that the existence of

39

Section 5 deterred covered jurisdictions from even attempting

to enact discriminatory voting changes.” H.R. Rep. No. 109-

478, at 24. In Congress’s view, “Section 5’s strong deterrent

effect” and “the number of voting changes that have never

gone forward as a result of [that effect]” are “[a]s important

as the number of objections that have been interposed to

protect minority voters against discriminatory changes” that

had actually been proposed. Id. As Congress explained,

“ ‘[o]nce officials in covered jurisdictions become aware of

the logic of preclearance, they tend to understand that

submitting discriminatory changes is a waste of taxpayer time

and money and interferes with their own timetables, because

the chances are good that an objection will result.’ ” Id.

(quoting Nat’l Comm’n Report 57). For this reason, the mere

existence of section 5 “ ‘encourage[s] the legislature to ensure

that any voting changes would not have a discriminatory

effect on minority voters, and that it would not become

embroiled in the preclearance process.’ ” Id. (quoting

Laughlin McDonald, The Case for Extending and Amending

the Voting Rights Act: Voting Rights Litigation, 1982–2006:

A Report of the Voting Rights Project of the American Civil

Liberties Union 15 (2006)). Congress considered testimony

that section 5 has had just this effect on state and local

redistricting processes. See H.R. Rep. No. 109-478, at 24

(describing section 5’s “critical” influence on the Georgia

legislature’s redistricting process, which culminated in a plan

that was precleared with no objection by the Attorney General

(internal quotation marks omitted)); Evidence of Continued

Need 362–63 (explaining how concerns about obtaining

preclearance prevented Fredericksburg, Virginia, from

eliminating an African American majority district). In other

words, Congress had “some reason to believe that without

[section 5’s] deterrent effect on potential misconduct,” the

40

evidence of continued discrimination in covered jurisdictions

“might be considerably worse.” S. Rep. No. 109-295, at 11.

Shelby County argues that Congress’s finding of

deterrence reflects “ ‘outdated assumptions about racial

attitudes in the covered jurisdictions’ ” that we should not

“indulge[].” Appellant’s Br. 38 (quoting Nw. Austin, 129 S.

Ct. at 2525 (Thomas, J., concurring in judgment in part and

dissenting in part)). We agree that evaluating section 5’s

deterrent effect raises sensitive and difficult issues. As the

dissent rightly points out, the claimed effect is hard to

measure empirically and even harder to consider judicially.

Dissenting Op. at 24. We also agree with the dissent that

section 5 could not stand based on claims of deterrence alone,

nor could deterrence be used in some hypothetical case to

justify renewal “to the crack of doom,” id. But the difficulty

of quantifying the statute’s deterrent effect is no reason to

summarily reject Congress’s finding that the evidence of

racial discrimination in voting would look worse without

section 5—a finding that flows from record evidence

unchallenged by the dissent. As explained above, Congress’s

deterrent effect finding rests on evidence of current and

widespread voting discrimination, as well as on testimony

indicating that section 5’s mere existence prompts state and

local legislators to conform their conduct to the law. And

Congress’s finding—that is, a finding about how the world

would have looked absent section 5—rests on precisely the

type of fact-based, predictive judgment that courts are ill-

equipped to second guess. See Turner Broad., 520 U.S. at 195

(“In reviewing the constitutionality of a statute, courts must

accord substantial deference to the predictive judgments of

Congress.” (internal quotation marks omitted)).

41

This brings us, then, to Congress’s ultimate conclusion.

After considering the entire record, including

• 626 Attorney General objections that blocked

discriminatory voting changes;

• 653 successful section 2 cases;

• over 800 proposed voting changes withdrawn or

modified in response to MIRs;

• tens of thousands of observers sent to covered

jurisdictions;

• 105 successful section 5 enforcement actions;

• 25 unsuccessful judicial preclearance actions;

• and section 5’s strong deterrent effect, i.e., “the

number of voting changes that have never gone

forward as a result of Section 5,” H.R. Rep. No. 109-

478, at 24;

Congress found that serious and widespread intentional

discrimination persisted in covered jurisdictions and that

“case-by-case enforcement alone . . . would leave minority

citizens with [an] inadequate remedy.” Id. at 57. In reaching

this conclusion, Congress considered evidence that section 2

claims involve “intensely complex litigation that is both

costly and time-consuming.” Modern Enforcement 96; see

also Introduction to the Expiring Provisions 141 (describing a

Federal Judicial Center study finding that voting rights cases

require nearly four times more work than an average district

court case and rank as the fifth most work-intensive of the

sixty-three types of cases analyzed); City of Boerne, 521 U.S

at 526 (noting the “slow costly character of case-by-case

litigation” under section 2). It heard from witnesses who

explained that “it is incredibly difficult for minority voters to

pull together the resources needed” to pursue a section 2

lawsuit, particularly at the local level and in rural

42

communities. Modern Enforcement 96; see also History,

Scope, and Purpose 84 (explaining that voters “in local

communities and particularly in rural areas . . . do not have

access to the means to bring litigation under Section 2”). Such

testimony is particularly significant given that the vast

majority of section 5 objections (92.5 percent from 2000 to

2005) pertained to local voting changes. See Michael J. Pitts,

Let’s Not Call the Whole Thing Off Just Yet: A Response to

Samuel Issacharoff’s Suggestion to Scuttle Section 5 of the

Voting Rights Act, 84 Neb. L. Rev. 605, 612–13 (2005); see

also id. at 616 (“[S]ection 2 cases are much less likely to be

filed when it comes to redistricting in smaller

jurisdictions[.]”). Congress also heard testimony that during

the time it takes to litigate a section 2 action—often several

years—proponents of a discriminatory law may enjoy its

benefits, potentially winning elections and gaining the

advantage of incumbency before the law is overturned.

Impact and Effectiveness 43–44. Given all of this, and given

the magnitude and persistence of discrimination in covered

jurisdictions, Congress concluded that case-by-case

litigation—slow, costly, and lacking section 5’s prophylactic

effect—“would be ineffective to protect the rights of minority

voters.” H.R. Rep. No. 109-478, at 57.

According to Shelby County, “[e]valuation of the

probative evidence shows there is no longer systematic

resistance to the Fifteenth Amendment in the covered

jurisdictions that cannot be solved through case-by-case

litigation.” Appellant’s Br. 38. Congress, however, reached a

different conclusion, and as explained above, the County has

offered no basis for thinking that Congress’s judgment is

either unreasonable or unsupported by probative evidence.

The dissent accuses us of “overstat[ing] the inadequacies of

§ 2, such as cost and the consequences of delay.” Dissenting

43

Op. at 8. But the conclusion that section 2 is inadequate is

Congress’s, not ours. The dissent believes that the costs of

section 2 actions can “be assumed by the Department of

Justice,” id., but it cites nothing in the record to support such

speculation. The dissent also believes that “courts may as

always use the standard remedy of a preliminary injunction to

prevent irreparable harm caused by adjudicative delay.” Id. at

8–9. But Congress knows that plaintiffs can seek preliminary

injunctions and reasonably determined that this possibility—

that plaintiffs with few resources litigating a fact-intensive

section 2 case will be able to satisfy the heavy burden

required for preliminary injunctive relief—was insufficient to

alleviate its concerns about the inadequacy of section 2

actions.

The point at which section 5’s strong medicine becomes

unnecessary and therefore no longer congruent and

proportional turns on several critical considerations, including

the pervasiveness of serious racial discrimination in voting in

covered jurisdictions; the continued need for section 5’s

deterrent and blocking effect; and the adequacy of section 2

litigation. These are quintessentially legislative judgments,

and Congress, after assembling and analyzing an extensive

record, made its decision: section 5’s work is not yet done.

Insofar as Congress’s conclusions rest on predictive

judgments, we must, contrary to the dissent’s approach, apply

a standard of review even “more deferential than we accord to

judgments of an administrative agency.” Turner Broad., 520

U.S. at 195. Given that we may not “displace [an agency’s]

choice between two fairly conflicting views, even though the

court would justifiably have made a different choice had the

matter been before it de novo,” Universal Camera Corp. v.

NLRB, 340 U.S. 474, 488 (1951), we certainly cannot do so

here. Of course, given the heavy federalism costs that section

44

5 imposes, our job is to ensure that Congress’s judgment is

reasonable and rests on substantial probative evidence. See

Turner Broad., 520 U.S. at 195 (“In reviewing the

constitutionality of a statute . . . [o]ur sole obligation is to

assure that, in formulating its judgments, Congress has drawn

reasonable inferences based on substantial evidence.”

(internal quotation marks omitted)). After thoroughly

scrutinizing the record and given that overt racial

discrimination persists in covered jurisdictions

notwithstanding decades of section 5 preclearance, we, like

the district court, are satisfied that Congress’s judgment

deserves judicial deference.

B.

Having concluded that section 5’s “current burdens” are

indeed justified by “current needs,” we proceed to the second

Northwest Austin inquiry: whether the record supports the

requisite “showing that a statute’s disparate geographic

coverage is sufficiently related to the problem that it targets.”

129 S. Ct. at 2512. Recall that this requirement stems from

the Court’s concern that “[t]he Act . . . differentiates between

the States, despite our historic tradition that all the States

enjoy ‘equal sovereignty.’ ” Id. “The evil that § 5 is meant to

address,” the Court observed, “may no longer be concentrated

in the jurisdictions singled out [by section 4(b)] for

preclearance.” Id.

Before examining the record ourselves, we emphasize

that the Act’s disparate geographic coverage—and its relation

to the problem of voting discrimination—depends not only on

section 4(b)’s formula, but on the statute as a whole,

including its mechanisms for bail-in and bailout. Bailout

functions as an integral feature of section 4’s coverage

scheme: jurisdictions are subject to section 5 only if (1) they

45

are captured by section 4(b), and (2) they have not bailed out,

meaning that they have failed to demonstrate a clean voting

record as defined in section 4(a). See 42 U.S.C. §§ 1973b(a),

1973c(a). In addition, jurisdictions not captured by section

4(b) but which nonetheless have serious, recent records of

voting discrimination, may be “bailed in”—i.e., subjected to

section 5 preclearance—pursuant to section 3(c). See 42

U.S.C. § 1973a(c). Therefore, the question before us is

whether the statute as a whole, not just the section 4(b)

formula, ensures that jurisdictions subject to section 5 are

those in which unconstitutional voting discrimination is

concentrated.

The most concrete evidence comparing covered and non-

covered jurisdictions in the legislative record comes from a

study of section 2 cases published on Westlaw or Lexis

between 1982 and 2004. Impact and Effectiveness 964–1124

(report by Ellen Katz et al.). Known as the Katz study, it

reached two key findings suggesting that racial discrimination

in voting remains “concentrated in the jurisdictions singled

out for preclearance,” Nw. Austin, 129 S. Ct. at 2512. First,

the study found that of the 114 published decisions resulting

in outcomes favorable to minority plaintiffs, 64 originated in

covered jurisdictions, while only 50 originated in non-covered

jurisdictions. Thus, although covered jurisdictions account for

less than 25 percent of the country’s population, they

accounted for 56 percent of successful section 2 litigation

since 1982. Impact and Effectiveness 974; see also H.R. Rep.

No. 109-478, at 53. When the Katz data is adjusted to reflect

these population differences (based on the Census Bureau’s

2004 population estimates, the most recent data then available

to Congress), the rate of successful section 2 cases in covered

jurisdictions (.94 per million residents) is nearly four times

the rate in non-covered jurisdictions (.25 per million

46

residents), as illustrated in the chart below. See Ellen Katz &

The Voting Rights Initiative, VRI Database Master List

(2006), http://sitemaker.umich.edu/votingrights/files/master

list.xls; U.S. Dep’t of Justice, Section 5 Covered

Jurisdictions, http://www.justice.gov/crt/about/vot/sec_5/

covered.php (last visited May 9, 2012); U.S. Census Bureau,

Annual Estimates of the Population for the United States and

States, and for Puerto Rico: April 1, 2000 to July 1, 2004,

available at http://www.census.gov/popest/data/historical/

2000s/vintage_2004/state.html (last visited May 9, 2012);

U.S. Census Bureau, Annual Estimates of the Resident

Population for Counties: April 1, 2000 to July 1, 2004,

available at http://www.census.gov/popest/data/counties/

totals/2004/CO-EST2004-01.html (last visited May 9, 2012);

U.S. Census Bureau, Population Estimates: Minor Civil

Divisions: 2000 to 2004, available at http://www.census.gov/

popest/data/cities/totals/2004/SUB-EST2004-5.html (last

visited May 9, 2012).

Successful Published Section 2 Cases

per Million Residents

1.00

Cases per Million Residents

0.90

0.80

0.70

0.60

0.50

0.40

0.30

0.20

0.10

0.00

Covered Jurisdictions Non-Covered

Jurisdictions

47

Second, the study found higher success rates in covered

jurisdictions than in non-covered jurisdictions. Specifically,

40.5 percent of published section 2 decisions in covered

jurisdictions resulted in favorable outcomes for plaintiffs,

compared to only 30 percent in non-covered jurisdictions.

Impact and Effectiveness 974.

The difference between covered and non-covered

jurisdictions becomes even more pronounced when

unpublished section 2 decisions—primarily court-approved

settlements—are taken into account. As the Katz study noted,

published section 2 lawsuits “represent only a portion of the

section 2 claims filed or decided since 1982” since many

claims were settled or otherwise resolved without a published

opinion. Id. at 974. According to data compiled by the

National Commission on the Voting Rights Act and Justice

Department historian Peyton McCrary, there have been at

least 686 unpublished successful section 2 cases since 1982,

amounting to a total of some 800 published and unpublished

cases with favorable outcomes for minority voters. See Decl.

of Dr. Peyton McCrary 13 (“McCrary Decl.”). Of these,

approximately 81 percent were filed in covered jurisdictions.

Id. When this data is broken down state-by-state, separately

identifying covered and non-covered portions of partially

covered states, the concentration of successful section 2 cases

in the covered jurisdictions is striking. Of the eight states with

the highest number of successful published and unpublished

section 2 cases per million residents—Alabama, Mississippi,

Arkansas, Texas, South Carolina, Georgia, and the covered

portions of South Dakota and North Carolina—all but one are

covered. See Supp. Decl. of Dr. Peyton McCrary 3–7; U.S.

Dep’t of Justice, Section 5 Covered Jurisdictions,

http://www.justice.gov/crt/about/vot/sec_5/covered.php (last

visited May 9, 2012); U.S. Census Bureau, Annual Estimates

48

of the Population for the United States and States, and for

Puerto Rico: April 1, 2000 to July 1, 2004, available at

http://www.census.gov/popest/data/historical/2000s/vintage

_2004/state.html (last visited May 9, 2012); U.S. Census

Bureau, Annual Estimates of the Resident Population for

Counties: April 1, 2000 to July 1, 2004, available at

http://www.census.gov/popest/data/counties/totals/2004/CO-

EST2004-01.html (last visited May 9, 2012); U.S. Census

Bureau, Population Estimates: Minor Civil Divisions: 2000 to

2004, available at http://www.census.gov/popest/data/cities/

totals/2004/SUB-EST2004-5.html (last visited May 9, 2012).

The only exception is Arkansas, which, though not captured

by section 4(b), was subjected to partial preclearance pursuant

to a 1990 federal court order, i.e., “bailed in.” See Jeffers v.

Clinton, 740 F. Supp. 585, 601–02 (E.D. Ark. 1990).

Similarly, of the fourteen states with the highest number of

successful published and unpublished section 2 cases per

million residents—the eight listed above, plus Montana,

Louisiana, New Mexico, Virginia, and the non-covered

portions of South Dakota and North Carolina—eleven are

either covered, including the seven states originally covered

by the 1965 Act, or were bailed in for some period (Arkansas

and New Mexico). See Travis Crum, Note, The Voting Rights

Act’s Secret Weapon: Pocket Trigger Litigation and Dynamic

Preclearance, 119 Yale L.J. 1992, 2010 & nn.100–01 (2010)

(discussing bail-in of Arkansas and New Mexico). This data

is displayed in the chart on the following page.

49

Cases Per Million Residents

10

15

20

25

30

35

40

45

0

5

South Dakota - C

Alabama

Mississippi

North Carolina - C

Arkansas

Texas

Successful Published and Unpublished Section 2 Cases

South Carolina

Georgia

Montana

South Dakota - NC

Louisiana

New Mexico

North Carolina - NC

Virginia

Rhode Island

per Million Residents

North Dakota

Delaware

California - C

Florida - NC

Tennessee

Maryland

Illinois

Hawaii

New York - C

Colorado

Florida - C

Indiana

Nebraska

Connecticut

New York - NC

(NC)

Jurisdictions

Non-Covered

Jurisdictions

Bailed-In

Jurisdictions (C)

Covered

Massachusetts

California - NC

Utah

Arizona

Missouri

Pennsylvania

New Jersey

Wisconsin

Ohio

Michigan - NC

50

Shelby County objects to the use of unpublished section 2

data, pointing out that although Congress considered the

National Commission’s analysis of unpublished cases in

covered jurisdictions, the legislative record does not contain

McCrary’s analysis of unpublished cases in non-covered

jurisdictions. We agree that there are reasons to approach this

data with caution: McCrary prepared his analysis after the

2006 reauthorization, and because his data regarding

unpublished cases in non-covered jurisdictions was collected

separately from the data on unpublished cases in covered

jurisdictions, we cannot be certain that the data collection

methods were identical. That said, the Supreme Court has

considered post-enactment evidence to find at least one law

congruent and proportional, see Lane, 541 U.S. at 524–25

nn.6–9 & 13 (citing articles and cases published ten or more

years after the Americans with Disabilities Act was enacted,

as well as recent versions of statutes and regulations), and

here a majority of the unpublished cases from non-covered

jurisdictions (as well as all from covered jurisdictions)

appears in the legislative record, see McCrary Decl. 10. Also,

while the Katz data on published cases is necessarily

underinclusive, see Impact and Effectiveness 974 (explaining

that the published cases analyzed by the Katz study “represent

only a portion” of all section 2 actions), Shelby County has

identified no errors or inconsistencies in the data analyzed by

McCrary. Indeed, McCrary points out that even if his

methodology identified only half of the unpublished cases in

non-covered jurisdictions, “there would still be 393 more

settlements resolved favorably for minority voters in” covered

jurisdictions. McCrary Decl. 11. For these reasons, although

we would not rely solely on the combined published and

unpublished data, we think it provides helpful additional

evidence that corroborates the disparities in the level of

51

discrimination between covered and non-covered jurisdictions

revealed by the published data.

The section 2 data, moreover, does not tell the whole

story. As explained above, Congress found that section 5,

which operates only in covered jurisdictions, deters or blocks

many discriminatory voting laws before they can ever take

effect and become the target of section 2 litigation. “Section

5’s reach in preventing discrimination is broad. Its strength

lies not only in the number of discriminatory voting changes it

has thwarted, but can also be measured by the submissions

that have been withdrawn from consideration, the submissions

that have been altered by jurisdictions in order to comply with

the [Voting Rights Act], or in the discriminatory voting

changes that have never materialized.” H.R. Rep. No. 109-

478, at 36. Accordingly, if discrimination were evenly

distributed throughout the nation, we would expect to see

fewer successful section 2 cases in covered jurisdictions than

in non-covered jurisdictions. See Continuing Need 26

(explaining that section 5 “makes the covered jurisdiction[s]

much ‘cleaner’ than they would have been without Section 5

coverage”). Yet we see substantially more.

Shelby County makes two main arguments in response to

this evidence. First, citing Katzenbach’s finding that the

coverage formula was “rational in both practice and theory,”

383 U.S. at 330, it contends that section 4(b) is irrational

because it relies on “decades-old data.” Appellant’s Br. 59. “It

cannot be constitutional,” Shelby County insists, “to rely on

decades-old voting data to establish current voting

discrimination.” Id. In addition, the County claims that in

1965 Congress was concerned with “first-generation”

barriers—tests and devices that denied access to the ballot—

and crafted the coverage formula to capture states that erected

52

such barriers and had low registration rates. But in 2006,

although Congress was more concerned with “second-

generation” barriers—vote dilution techniques that weaken

“minority voting effectiveness”—it retained a coverage

formula aimed at first-generation problems. Thus, Shelby

County concludes, “[t]here is a serious mismatch between the

conduct targeted by Congress and the factors that trigger

coverage under Section 4(b).” Id. at 60.

This argument rests on a misunderstanding of the

coverage formula. As the district court explained, the election

years that serve as coverage “triggers” under section 4(b)

“were never selected because of something special that

occurred in those years.” Shelby Cnty., 811 F. Supp. 2d at

505. Instead, Congress identified the jurisdictions it sought to

cover—those for which it had “evidence of actual voting

discrimination,” Katzenbach, 383 U.S. at 329—and then

worked backward, reverse-engineering a formula to cover

those jurisdictions. See id. (explaining that “Congress began

work with reliable evidence of actual voting discrimination in

a great majority of the States and political subdivisions

affected by the new remedies of the Act” and that it

“eventually evolved” a formula “to describe these areas”).

The coverage formula relied on tests and devices “because of

their long history as a tool for perpetrating the evil,” and

voting rates because “widespread disenfranchisement must

inevitably affect the number of actual voters.” Id. at 330. In

other words, Congress chose the section 4(b) criteria not

because tests, devices, and low participation rates were all it

sought to target, but because they served as accurate proxies

for pernicious racial discrimination in voting. The question,

then, is not whether the formula relies on old data or

techniques, but instead whether it, together with bail-in and

bailout, continues to identify the jurisdictions with the worst

53

problems. If it does, then even though the formula rests on

decades-old factors, the statute is rational in theory because its

“disparate geographic coverage” remains “sufficiently related

to the problem that it targets.” Nw. Austin, 129 S. Ct. at 2512.

Of course, Shelby County’s real argument is that the

statute fails this test, i.e., that it no longer actually identifies

the jurisdictions “uniquely interfering with the right Congress

is seeking to protect through preclearance.” Appellant’s Br.

62. The County points out that Congress never made a finding

that racial discrimination in voting was “concentrated in the

jurisdictions singled out for preclearance.” Nw. Austin, 129 S.

Ct. at 2512. The County also argues that the Katz study is at

best inconclusive, for some non-covered states, such as

Illinois and the non-covered portions of New York, had more

successful published section 2 lawsuits than did several

covered states. In any event, it claims, “aggregated statistics

showing slightly more Section 2 litigation with ‘favorable

outcomes’ in covered jurisdictions as a group is not a rational

basis for subjecting individually-targeted States to another 25

years of preclearance.” Appellant’s Br. 70.

Shelby County’s first point—that Congress failed to

make a finding—is easily answered. Congress did not have to.

United States v. Lopez, 514 U.S. 549, 562 (1995) (Congress

“normally is not required to make formal findings” in order to

legislate). The proper question is whether the record contains

sufficient evidence to demonstrate that the formula continues

to target jurisdictions with the most serious problems. See Nw.

Austin, 129 S. Ct. at 2512. This presents a close question. The

record on this issue is less robust than the evidence of

continued discrimination, see supra Part III.A, although this is

in part due to the difficulty of comparing jurisdictions that

have been subject to two very different enforcement regimes,

54

i.e., covered jurisdictions are subject to both sections 2 and 5

while non-covered jurisdictions are subject only to section 2.

And although the Katz data in the aggregate does suggest that

discrimination is concentrated in covered jurisdictions, just

three covered states—Alabama, Louisiana, and Mississippi—

account for much of the disparity. The covered states in the

middle of the pack—North Carolina, South Carolina,

Virginia, Texas, and Georgia—are about on par with the

worst non-covered jurisdictions. And some covered states—

Alaska and Arizona—had no successful published section 2

cases at all.

As explained above, however, this data presents an

incomplete picture of covered jurisdictions. When we

consider the Katz data in conjunction with other record

evidence, the picture looks quite different. For instance,

although Georgia had only three successful published section

2 cases between 1982 and 2004, during that time the state had

66 successful unpublished section 2 cases, 83 section 5

objections, and 17 successful section 5 enforcement actions.

Evidence of Continued Need 250–51, 272. In addition,

between 1990 and 2005, jurisdictions in Georgia withdrew 90

proposed voting changes in response to MIRs. Id. at 2566.

South Carolina is similar. Although the state had only 3

successful published section 2 cases, it had 30 successful

unpublished section 2 cases, 74 section 5 objections, and 10

successful section 5 enforcement actions, as well as 26 voting

changes withdrawn in response to MIRs and 51 changes that

could not lawfully be implemented for failure to respond to

MIRs. Id. at 250–51, 272, 2566. South Carolina, moreover, is

one of the covered states that not only has continued racial

disparities in voter registration and turnout, but that has never

elected an African American to statewide office. See supra p.

22. Accordingly, even if only a relatively small portion of

55

objections, withdrawn voting changes, and successful section

5 enforcement actions correspond to unconstitutional conduct,

and even if there are substantially more successful

unpublished section 2 cases in non-covered jurisdictions than

the McCrary data reveals, these middle-range covered

jurisdictions appear to be engaged in much more

unconstitutional discrimination compared to non-covered

jurisdictions than the Katz data alone suggests. In fact, the

discrepancy between covered and non-covered jurisdictions is

likely even greater given that, as Congress found, the mere

existence of section 5 deters unconstitutional behavior in the

covered jurisdictions. That is, the middle-range covered states

appear comparable to some non-covered jurisdictions only

because section 5’s deterrent and blocking effect screens out

discriminatory laws before section 2 litigation becomes

necessary. Had section 5 not been in effect, one would expect

significantly more discrimination in North Carolina, South

Carolina, Virginia, Texas, and Georgia, all covered by section

5, than in the non-covered states with the worst records. See

S. Rep. No. 109-295, at 11 (suggesting that “without the

Voting Rights Act’s deterrent effect,” the evidence of

discrimination in the covered jurisdictions “might be

considerably worse”).

To be sure, the coverage formula’s fit is not perfect. But

the fit was hardly perfect in 1965. Accordingly, Katzenbach’s

discussion of this issue offers a helpful guide for our current

inquiry, particularly when we consider all probative record

evidence of recent discrimination—and not just the small

subset of section 2 cases relied upon by the dissent, see

Dissenting Op. at 25–26. In 1965, the formula covered three

states in “which federal courts ha[d] repeatedly found

substantial voting discrimination”—Alabama, Louisiana, and

Mississippi, Katzenbach, 383 U.S. at 329, the same three

56

states that, notwithstanding more than forty years of section 5

enforcement, still account for the highest rates of published

successful section 2 litigation, as well as large numbers of

unpublished successful section 2 cases, section 5 objections,

federal observer coverages, and voting changes withdrawn or

modified in response to MIRs. But the 1965 formula also

“embrace[d] two other States—Georgia and South Carolina—

plus large portions of a third State—North Carolina—for

which there was more fragmentary evidence of recent voting

discrimination mainly adduced by the Justice Department and

the Civil Rights Commission.” Id. at 329–30. Today, the

middle-range covered jurisdictions—North Carolina, South

Carolina, Virginia, Texas, and Georgia—look similar:

although the legislative record contains fewer judicial

findings of racial discrimination in these states, it contains at

least fragmentary evidence, in part based on Attorney General

objections, that these states continue to engage in

unconstitutional racial discrimination in voting. Finally, the

1965 formula swept in several other jurisdictions—including

Alaska, Virginia, and counties in Arizona, Hawaii, and

Idaho—for which Congress apparently had no evidence of

actual voting discrimination. See id. at 318, 329–30. Today,

the Act likewise encompasses jurisdictions for which there is

some evidence of continued discrimination—Arizona and the

covered counties of California, Florida, and New York, see

Evidence of Continued Need 250–51, 272—as well as

jurisdictions for which there appears little or no evidence of

current problems—Alaska and a few towns in Michigan and

New Hampshire.

Critically, moreover, and as noted above, in determining

whether section 5 is “sufficiently related to the problem that it

targets,” we look not just at the section 4(b) formula, but at

the statute as a whole, including its provisions for bail-in and

57

bailout. Bail-in allows jurisdictions not captured by section

4’s coverage formula, but which nonetheless discriminate in

voting, to be subjected to section 5 preclearance. Thus, two

non-covered states with high numbers of successful published

and unpublished section 2 cases—Arkansas and New

Mexico—were subjected to partial preclearance under the

bail-in provision. See Jeffers, 740 F. Supp. at 601–02; Crum,

119 Yale L.J. at 2010 & n.101 (citing Sanchez v. Anaya, No.

82-0067M, slip op. at 8 (D.N.M. Dec. 17, 1984)). Federal

courts have also bailed in jurisdictions in several states,

including Los Angeles County, California; Escambia County,

Florida; Thurston County, Nebraska; Bernalillo County, New

Mexico; Buffalo County, South Dakota; Charles Mix County,

South Dakota; and the city of Chattanooga, Tennessee. See

Crum, 119 Yale L.J. at 2010 & nn.102–08.

Bailout plays an even more important role in ensuring

that section 5 covers only those jurisdictions with the worst

records of racial discrimination in voting. As the Supreme

Court explained in City of Boerne, the availability of bailout

“reduce[s] the possibility of overbreadth” and helps “ensure

Congress’ means are proportionate to [its] ends.” 521 U.S. at

533; see also Katzenbach, 383 U.S. at 329 (“Acknowledging

the possibility of overbreadth, the Act provides for

termination of special statutory coverage at the behest of

States and political subdivisions in which the danger of

substantial voting discrimination has not materialized during

the preceding five years.”). As of May 9, 2012, having

demonstrated that they no longer discriminate in voting, 136

jurisdictions and sub-jurisdictions had bailed out, including 30

counties, 79 towns and cities, 21 school boards, and 6 utility

or sanitary districts. U.S. Dep’t of Justice, Section 4 of the

Voting Rights Act, http://www.justice.gov/crt/about/vot/

misc/sec_4.php#bailout_list (last visited May 9, 2012) (“DOJ

58

Bailout List”). In fact, by ruling in Northwest Austin that any

jurisdiction covered by section 5 could seek bailout—a

development unmentioned by the dissent—the Supreme Court

increased significantly the extent to which bailout helps

“ensure Congress’ means are proportionate to [its] ends,”

Boerne, 521 U.S. at 533. See Nw. Austin, 129 S. Ct. at 2516

(holding that “all political subdivisions—not only those

described in § 14(c)(2)—are eligible to file a bailout suit”).

Not surprisingly, then, the pace of bailout increased after

Northwest Austin: of the successful bailout actions since

1965, 30 percent occurred in the three years after the Supreme

Court issued its decision in 2009. See DOJ Bailout List,

http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout_

list. Also, the Attorney General “has a number of active

bailout investigations, encompassing more than 100

jurisdictions and subjurisdictions from a range of States.” Br.

for Att’y Gen. as Appellee at 47–48, LaRoque v. Holder, No.

11-5349 (D.C. Cir. May 18, 2012).

The importance of this significantly liberalized bailout

mechanism cannot be overstated. Underlying the debate over

the continued need for section 5 is a judgment about when

covered jurisdictions—many with very bad historic records of

racial discrimination in voting—have changed enough so that

case-by-case section 2 litigation is adequate to protect the

right to vote. Bailout embodies Congress’s judgment on this

question: jurisdictions originally covered because of their

histories of discrimination can escape section 5 preclearance

by demonstrating a clean record on voting rights for ten years

in a row. See 42 U.S.C. § 1973b(a)(1) (bailout criteria). As the

House Report states, “covered status has been and continues

to be within the control of the jurisdiction such that those

jurisdictions that have a genuinely clean record and want to

terminate coverage have the ability to do so.” H.R. Rep. No.

59

109-478, at 25. Bailout thus helps to ensure that section 5 is

“sufficiently related to the problem that it targets,” Nw.

Austin, 129 S. Ct. at 2512.

Shelby County complains that bailout helps only “at the

margins,” Appellant’s Br. 53; see also Dissenting Op. at 29,

and the dissent emphasizes that only about 1 percent of

covered jurisdictions and subjurisdictions have applied for

bailout, Dissenting Op. at 29. But absent evidence that there

are “clean” jurisdictions that would like to bail out but cannot

meet the standards, the low bailout rate tells us nothing about

the effectiveness of the bailout provision. See Shelby Cnty.,

811 F. Supp. 2d at 500–01 (describing “several plausible

explanations for th[e] failure to seek bailout,” including “the

minimal administrative cost associated with preclearance, and

the fact that covered jurisdictions see no need to avoid the

preclearance requirement”). As the dissent concedes, since

1982 no bailout application has been denied, Dissenting Op.

at 29, and Congress considered evidence that the bailout

criteria “are easily proven for jurisdictions that do not

discriminate in their voting practices.” Voting Rights Act: An

Examination of the Scope and Criteria for Coverage Under

the Special Provisions of the Act: Hearing Before the

Subcomm. on the Constitution of the H. Comm. on the

Judiciary, 109th Cong. 90 (2005). The dissent speculates that

“opaque standards” may prevent bailouts, Dissenting Op. at

29, but neither it nor Shelby County specifically challenges

Congress’s definition of what constitutes a clean jurisdiction

or how the Attorney General is applying the bailout criteria.

In fact, as noted above, Shelby County never even tried to bail

out and has brought only a facial challenge. If something

about the bailout criteria themselves or how the Attorney

General is applying them is preventing jurisdictions with

clean records from escaping section 5 preclearance, those

60

criteria can be challenged in a separate action brought by any

adversely affected jurisdiction. See United States v. Salerno,

481 U.S. 739, 745 (1987) (explaining that in a facial

challenge, “[t]he fact that [a law] might operate

unconstitutionally under some conceivable set of

circumstances is insufficient to render it wholly invalid”).

This, then, brings us to the critical question: Is the

statute’s “disparate geographic coverage . . . sufficiently

related to the problem that it targets”? Nw. Austin, 129 S. Ct.

at 2512. Of course, if the statute produced “a remarkably bad

fit,” Dissenting Op. at 25, then we would agree that it is no

longer congruent and proportional. But as explained above,

although the section 4(b) formula relies on old data, the

legislative record shows that it, together with the statute’s

provisions for bail-in and bailout—hardly “tack[ed] on,” id. at

30 (internal quotation marks omitted), but rather an integral

part of the coverage mechanism—continues to single out the

jurisdictions in which discrimination is concentrated. Given

this, and given the fundamental principle that we may not

“strik[e] down an Act of Congress except upon a clear

showing of unconstitutionality,” Salazar v. Buono, 130 S. Ct.

1803, 1820 (2010) (plurality opinion), we see no principled

basis for setting aside the district court’s conclusion that

section 5 is “sufficiently related to the problem that it targets,”

Nw. Austin, 129 S. Ct. at 2512.

C.

We turn, finally, to the dissent’s argument that section 5

“requires a jurisdiction not only to engage in some level of

race-conscious decisionmaking, but also on occasion to

sacrifice principles aimed at depoliticizing redistricting.”

Dissenting Op. at 4; see also Nw. Austin, 129 S. Ct. at 2512

(explaining that “federalism concerns are underscored by the

61

argument that . . . ‘considerations of race that would doom a

redistricting plan under the Fourteenth Amendment or § 2

seem to be what save it under § 5’ ” and that “[a]dditional

constitutional concerns are raised in saying that this tension

between §§ 2 and 5 must persist in covered jurisdictions and

not elsewhere” (quoting Georgia v. Ashcroft, 539 U.S. at 491

(Kennedy, J., concurring))). According to the dissent, this

concern and the burden imposed by section 5 are aggravated

by the amendments to section 5 Congress added in

conjunction with the 2006 reauthorization. Dissenting Op. at

5–7; see also 2006 Act § 5.

The dissent’s thoughtful arguments face a serious

obstacle. Shelby County neither challenges the

constitutionality of the 2006 amendments or even argues that

they increase section 5’s burdens, nor does it argue that

section 5 requires covered jurisdictions to undertake

impermissible considerations of race. These issues, in other

words, are entirely unbriefed, and as we have repeatedly made

clear, “appellate courts do not sit as self-directed boards of

legal inquiry and research, but essentially as arbiters of legal

questions presented and argued by the parties before them.”

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).

Where, as here, “counsel has made no attempt to address the

issue, we will not remedy the defect, especially where, as

here, important questions of far-reaching significance are

involved.” Id. (internal quotation marks omitted).

Even were they not forfeited, the dissent’s concerns

would not have satisfied the standards for mounting a facial

constitutional challenge. Such a challenge, the Supreme Court

has made clear, is “the most difficult . . . to mount

successfully, since the challenger must establish that no set of

circumstances exists under which the Act would be valid.”

62

Salerno, 481 U.S. at 745. Yet the amendments, as well as the

Supreme Court’s concern that section 5 may sometimes

require otherwise impermissible race-conscious

decisionmaking, are implicated only in a subset of cases.

Specifically, the amendment overturning Bossier II is

implicated only in cases involving a discriminatory but non-

retrogressive purpose, see 42 U.S.C. § 1973c(c); the

amendments overturning Georgia v. Ashcroft, like the

Supreme Court’s concern about race-conscious

decisionmaking, are implicated primarily in redistricting cases

where section 5 seems to require consideration of race as a

“ ‘predominant factor.’ ” See Nw. Austin, 129 S. Ct. at 2512

(quoting Georgia v. Ashcroft, 539 U.S. at 491 (Kennedy, J.,

concurring)); 42 U.S.C. § 1973c(b), (d). In other words, even

assuming the dissent is correct, it would not have established

that “no set of circumstances exists under which the Act

would be valid,” Salerno, 481 U.S. at 745. Indeed, addressing

the dissent’s arguments would lead us into the very kind of

“speculation” and “anticipat[ion]” of constitutional questions

that require courts to “disfavor[]” facial challenges. Wash.

State Grange v. Wash. State Republican Party, 552 U.S. 442,

450 (2008) (internal quotation marks omitted).

IV.

In Northwest Austin, the Supreme Court signaled that the

extraordinary federalism costs imposed by section 5 raise

substantial constitutional concerns. As a lower federal court

urged to strike this duly enacted law of Congress, we must

proceed with great caution, bound as we are by Supreme

Court precedent and confined as we must be to resolve only

the precise legal question before us: Does the severe remedy

of preclearance remain “congruent and proportional”? The

legislative record is by no means unambiguous. But Congress

drew reasonable conclusions from the extensive evidence it

63

gathered and acted pursuant to the Fourteenth and Fifteenth

Amendments, which entrust Congress with ensuring that the

right to vote—surely among the most important guarantees of

political liberty in the Constitution—is not abridged on

account of race. In this context, we owe much deference to

the considered judgment of the People’s elected

representatives. We affirm.

So ordered.

WILLIAMS, Senior Circuit Judge, dissenting: Section 5 of

the Voting Rights Act imposes rather extraordinary burdens

on “covered” jurisdictions—nine states (and every jurisdiction

therein), plus a host of jurisdictions scattered through several

other states. See Voting Section, U.S. Dep’t of Justice,

Section 5 Covered Jurisdictions, http://www.justice.gov/crt/ab

out/vot/sec_5/covered.php (last visited May 9, 2012) (listing

the covered jurisdictions). Unless and until released from

coverage (a process discussed below), each of these

jurisdictions must seek the Justice Department’s approval for

every contemplated change in election procedures, however

trivial. See 42 U.S.C. § 1973c. Alternatively, it can seek

approval from a three-judge district court in the District of

Columbia. See id. Below I’ll address the criteria by which

the Department and courts assess these proposals; for now,

suffice it to say that the act not only switches the burden of

proof to the supplicant jurisdiction, but also applies

substantive standards quite different from those governing the

rest of the nation.

Section 4(b) of the act states two criteria by which

jurisdictions are chosen for this special treatment: whether a

jurisdiction had (1) a “test or device” restricting the

opportunity to register or vote and (2) a voter registration or

turnout rate below 50%. See 42 U.S.C. § 1973b(b). But

§ 4(b) specifies that the elections for which these two criteria

are measured must be ones that took place several decades

ago. The freshest, most recent data relate to conditions in

November 1972—34 years before Congress extended the act

for another 25 years (and thus 59 years before the extension’s

scheduled expiration). See id. The oldest data—and a

jurisdiction included because of the oldest data is every bit as

covered as one condemned under the newest—are another

eight years older. See id.

2

Of course sometimes a skilled dart-thrower can hit the

bull’s eye throwing a dart backwards over his shoulder. As I

will try to show below, Congress hasn’t proven so adept.

Whether the criteria are viewed in absolute terms (are they

adequate in themselves to justify the extraordinary burdens of

§ 5?) or in relative ones (do they draw a rational line between

covered and uncovered jurisdictions?), they seem to me

defective. They are not, in my view, “congruent and

proportional,” as required by controlling Supreme Court

precedent. My colleagues find they are. I dissent.

* * *

Although it is only the irrational coverage formula of

§ 4(b) that I find unconstitutional, it is impossible to assess

that formula without first looking at the burdens § 5 imposes

on covered jurisdictions. Any answer to the question whether

§ 4(b) is “sufficiently related to the problem it targets,”

Northwest Austin Municipal Utility Dist. No. One v. Holder,

129 S. Ct. 2504, 2512 (2009), that is, whether it is “congruent

and proportional,” must be informed by the consequences

triggered by § 4(b). (I agree with the majority that Northwest

Austin “send[s] a powerful signal that congruence and

proportionality is the appropriate standard of review.” Maj.

Op. at 16.)1 The greater the burdens imposed by § 5, the more

1

Given such a standard, I cannot understand how we could

apply Salerno’s “no set of circumstances” test, see Maj. Op. at 61-

62, quite apart from the test’s questionable continued vitality, see,

e.g., Washington State Grange v. Washington State Republican

Party, 552 U.S. 442, 449 (2008). Suppose Congress had actually

designed the coverage formula by having the chair of the Senate

Judiciary Committee throw darts at a map and had included every

jurisdiction where a dart landed. Would we be expected to reject a

facial challenge simply on a showing that the behavior of one

covered jurisdiction was so blatantly unconstitutional as to cry out

for application of § 5?

3

accurate the coverage scheme must be. If, for example, § 5

merely required covered jurisdictions to notify the Justice

Department of an impending change in voting procedures,

without giving the Department power to delay or thwart

implementation, even a rather loose coverage formula would

likely appear proportional.

But § 5 requires much more than notice. For covered

jurisdictions, it mandates anticipatory review of state

legislative or administrative acts, requiring state and local

officials to go hat in hand to Justice Department officialdom

to seek approval of any and all proposed voting changes. See

42 U.S.C. § 1973c(a). Since its inception, even supporters of

the Voting Rights Act have recognized that the preclearance

regime was particularly “strong medicine” for a particularly

extreme problem. Voting Rights Act: Hearings on H.R. 6400

Before Subcomm. No. 5 of the House Comm. on the Judiciary,

89th Cong. 110 (1965) (statement of Rep. Chelf). When it

first upheld the VRA, the Supreme Court recognized it as a

“complex scheme of stringent remedies” and § 5 in particular

as an “uncommon exercise of congressional power.” South

Carolina v. Katzenbach, 383 U.S. 301, 315, 334 (1966). And

only a few years ago the Supreme Court reminded us that the

federalism costs of § 5 are “substantial.” Northwest Austin,

129 S. Ct. at 2511.

A critical aspect of those costs is the shifted burden of

proof (a matter I’ll discuss below in the realm of its most

significant application). So too is the section’s broad sweep:

§ 5 applies to any voting change proposed by a covered

jurisdiction, without regard to kind or magnitude, and thus

governs many laws that likely could never “deny or abridge” a

“minority group’s opportunity to vote.” See 42 U.S.C.

§ 1973c(a); Allen v. State Bd. of Elections, 393 U.S. 544, 566

(1969) (“The legislative history on the whole supports the

view that Congress intended to reach any state enactment,

4

which altered the election law of a covered State in even a

minor way.”). This obvious point is underscored by the

miniscule and declining share of covered jurisdictions’

applications that draw Justice Department objections—with

only five objections for every ten thousand submissions

between 1998 and 2002. See Richard L. Hasen,

Congressional Power to Renew the Preclearance Provisions

of the Voting Rights Act After Tennessee v. Lane, 192 OHIO

ST. L.J. 177, 192 & fig.3 (2005) (noting that the Department’s

objection rate has “been falling steadily” ever since the early

years of the VRA and equaled 0.05% between 1998 and

2002). In the vast majority of cases, then, the overall effect of

§ 5 is merely to delay implementation of a perfectly proper

law.

Of course the most critical features of § 5 are the

substantive standards it applies to the covered jurisdictions.

Whether a proposed voting change can be precleared turns on

whether it would have a retrogressive effect on minority

voters. See Beer v. United States, 425 U.S. 130, 141 (1976).

In practice this standard requires a jurisdiction not only to

engage in some level of race-conscious decisionmaking, but

also on occasion to sacrifice principles aimed at depoliticizing

redistricting. Suppose a covered jurisdiction sought to

implement what we may loosely call “good government”

principles. It might, for example, delegate the task of

redistricting to a computer programmed to apply criteria such

as compactness, contiguity, conformity to existing political

boundaries, and satisfaction of one person, one vote

requirements. Despite these worthy goals, the resulting plan,

if it happened to reduce the number of majority-minority

districts, would fail preclearance, as the government

acknowledged at oral argument. See Tr. of Oral Arg. at 37-

38. As Justice Kennedy cautioned in Georgia v. Ashcroft, 539

U.S. 461 (2003), “[C]onsiderations of race that would doom a

redistricting plan under the Fourteenth Amendment . . . seem

5

to be what save it under § 5.” Id. at 491 (Kennedy, J.,

concurring); see also Miller v. Johnson, 515 U.S. 900, 927

(1995) (noting that Justice Department’s “implicit command

that States engage in presumptively unconstitutional race-

based districting brings the Act . . . into tension with the

Fourteenth Amendment”).

Unfortunately, when Congress passed the 2006 version of

the VRA, it not only disregarded but flouted Justice

Kennedy’s concern. New subsections (b) and (d) were added

to § 5 to overturn Georgia v. Ashcroft, thereby restricting the

flexibility of states to experiment with different methods of

maintaining (and perhaps even expanding) minority influence.

The Georgia Court had prescribed a holistic approach to § 5,

instructing courts confronting a proposed voting change “not

[to] focus solely on the comparative ability of a minority

group to elect a candidate of its choice,”2 539 U.S. at 480

(majority opinion), but also to consider the “extent to which a

new plan changes the minority group’s opportunity to

participate in the political process” writ large, id. at 482.

Georgia thus gave covered jurisdictions an opportunity to

make trade-offs between concentrating minority voters in

increasingly safe districts and spreading some of those voters

out into additional districts; the latter choice, the Court

pointed out, might increase the “substantive representation”

they enjoy and lessen the risks of “isolating minority voters

from the rest of the State” and of “narrowing [their] political

influence to only a fraction of political districts.” Id. at 481;

see also Samuel Issacharoff, Is Section 5 of the Voting Rights

2

The discourse revolving around § 5 invariably assumes that

members of a minority have virtually identical interests and

preferences. I follow that pattern here, reserving for the end of the

opinion consideration of how such an assumption relates to the real

world and to the 15th Amendment.

6

Act a Victim of Its Own Success?, 104 COLUM. L. REV. 1710,

1729 (2004) (expressing concern that § 5’s “narrow focus on

securing the electability of minority candidates could

compromise the range of political accords available to

minority voters and thereby, under conditions of mature

political engagement, actually thwart minority political

gains”); David Epstein & Sharyn O’Halloran, Measuring the

Electoral and Policy Impact of Majority-Minority Voting

Districts, 43 AM. J. POL. SCI. 367, 390-92 (1999) (noting that

overreliance on majority-minority districts means that

“moderate senators will likely be replaced by extremists,”

undermining the ability to create “biracial coalitions [which]

are a key to passing racially progressive policies”). In so

doing, the Court recognized that a minority group might in

fact “achieve greater overall representation . . . by increasing

the number of representatives sympathetic to the interests of

minority voters,” rather than merely by electing the maximum

possible number of representatives dependent on securing a

majority of minority votes. 539 U.S. at 483.

As amended, the act forecloses this choice. Preclearance

now has an exclusive focus—whether the plan diminishes the

ability of minorities (always assumed to be a monolith) to

“elect their preferred candidates of choice,” irrespective of

whether policymakers (including minority ones) decide that a

group’s long-term interests might be better served by less

concentration—and thus less of the political isolation that

concentration spawns. See 42 U.S.C. § 1973c(b); id.

§ 1973c(d); see also Texas v. United States, -- F. Supp. 2d --,

2011 WL 6440006, at *4 (D.D.C. Dec. 22, 2011) (interpreting

the amended law to overturn Georgia). The amended § 5 thus

not only mandates race-conscious decisionmaking, but a

particular brand of it. In doing so, the new § 5 aggravates

both the federal-state tension with which Northwest Austin

was concerned and the tension between § 5 and the

7

Reconstruction Amendments’ commitment to

nondiscrimination.

Another 2006 amendment makes the § 5 burden even

heavier. Section 5 prohibits preclearance of laws that have the

“purpose” of “denying or abridging the right to vote on

account of race or color.” 42 U.S.C. § 1973c(a). The Court

had interpreted “purpose” to be consistent with § 5’s effects

prong, so that the term justified denying preclearance only to

changes with a “retrogressive” purpose, rather than changes

with either that or a discriminatory purpose. See Reno v.

Bossier Parish School Bd., 528 U.S. 320, 341 (2000)

(“Bossier II”). The 2006 amendments reversed that decision,

specifying that “purpose” encompassed “any discriminatory

purpose.” 42 U.S.C. § 1973c(c) (emphasis added). This

broadening of the § 5 criteria may seem unexceptionable, but

the Court had previously found that assigning covered

jurisdictions the burden of proving the absence of

discriminatory purpose was precisely the device that the

Department had employed in its pursuit of maximizing

majority-minority districts at any cost: “The key to the

Government’s position, which is plain from its objection

letters if not from its briefs to this court . . . , is and always has

been that Georgia failed to proffer a nondiscriminatory

purpose for its refusal in the first two submissions to take the

steps necessary to create [an additional] majority-minority

district.” Miller, 515 U.S. at 924. By inserting discriminatory

purpose into § 5, and requiring covered jurisdictions

affirmatively to prove its absence, Congress appears to have,

at worst, restored “the Justice Department’s implicit command

that States engage in presumptively unconstitutional race-

based districting,” id. at 927, and at best, “exacerbate[d] the

substantial federalism costs that the preclearance procedure

already exacts,” Bossier II, 528 U.S. at 336.

8

The majority correctly notes that Shelby did not argue

that either of these amendments is unconstitutional. See Maj.

Op. at 61. Neither do I. Appellant does argue however that

§ 4(b) is unconstitutional, that is, that § 4(b) is not a congruent

and proportional response to the problem currently posed by

voting discrimination. To answer that question one must

necessarily first assess the severity of the consequences of

coverage under § 4(b) (i.e., subjection to § 5 as it exists

today). See supra at p. 2.

Whether Congress is free to impose § 5 on a select set of

jurisdictions also depends in part, of course, on possible

shortcomings in the remedy that § 2 provides for the country

as a whole. That section creates a right to sue any jurisdiction

to stop voting practices that “result[] in a denial or

abridgement” of the right to vote “on account of race or

color.” 42 U.S.C. § 1973(a). Doubtless the section is less

drastic a remedy than § 5 (and thus by some criteria less

effective). But it is easy to overstate the inadequacies of § 2,

such as cost and the consequences of delay. Compare Maj.

Op. at 41-42. Unlike in most litigation, plaintiffs’ costs for

§ 2 suits can in effect be assumed by the Department of

Justice by its either exercising its authority to bring suit itself,

see, e.g., United States v. Blaine County, 363 F.3d 897 (9th

Cir. 2004), or by intervening in support of the plaintiff, as it

often does. See, e.g., Brown v. Bd. of School Comm’rs, 706

F.2d 1103, 1107 (11th Cir. 1983). So far as Departmental

resource constraints are concerned, narrowing § 5’s reach

would, as a matter of simple arithmetic, enable it to increase

§ 2 enforcement with whatever resources it stopped spending

on § 5. For those cases where the Justice Department still

fails to intervene, § 2 provides for reimbursement of attorney

and expert fees for prevailing parties. See 42 U.S.C.

§ 1973l(e). Finally, as to the risk that discriminatory practices

may take hold before traditional litigation has run its course,

courts may as always use the standard remedy of a

9

preliminary injunction to prevent irreparable harm caused by

adjudicative delay. See Perry v. Perez, 132 S. Ct. 934, 942

(2012).

Indeed, the ubiquitous availability of § 2 is of course a

reminder that § 5 was created for the specific purpose of

overcoming state and local resistance to federal anti-

discrimination policy. When the Supreme Court first upheld

the act in 1966, it found that § 5 was necessary because “case-

by-case litigation,” now governed by § 2, was “inadequate to

combat the widespread and persistent discrimination in

voting.” Katzenbach, 383 U.S. at 328. While § 2 was tailored

to redress actual instances of discrimination, § 5 was crafted

to overcome a “century of systematic resistance to the

Fifteenth Amendment” and ongoing “obstructionist tactics.”

Id.

But life in the covered jurisdictions has not congealed in

the 48 years since the first triggering election (or the 40 years

since the most recent). “[C]urrent burdens . . . must be

justified by current needs,” Northwest Austin, 129 S. Ct. at

2512, and the burden imposed by § 5 has only grown heavier

in those same years.

In order for § 4(b) to be congruent and proportional then,

the disparity in current evidence of discrimination between the

covered and uncovered jurisdictions must be proportionate to

the severe differential in treatment imposed by § 5. Put

another way, a distinct gap must exist between the current

levels of discrimination in the covered and uncovered

jurisdictions in order to justify subjecting the former group to

§ 5’s harsh remedy, even if one might find § 5 appropriate for

a subset of that group.

* * *

10

I now turn to assessing the evidence used to justify the

§ 4(b) coverage formula. The parties have offered no

sophisticated statistical analysis of voting discrimination in

the covered and uncovered jurisdictions, and what follows

does not purport to fill the sophistication gap.

The data considered are drawn from the evidence the

parties have cited, as well as the more general set compiled by

Congress, especially data the Supreme Court has previously

found important. For instance, when it upheld the

preclearance regime in 1980, the Supreme Court noted both

the “significant disparity” that still existed between African-

American and white voter registration rates, and the fact that

the number of black elected officials in covered jurisdictions

“fell far short of being representative” of the number of

African-Americans residing in covered jurisdictions. City of

Rome v. United States, 446 U.S. 156, 180-81 (1980). Beyond

voter registration and black elected officials, the parties point

us to comparative, state-by-state data detailing the number of

federal observers sent into states to oversee elections, plus the

number of successful § 2 lawsuits. I take each of these in

turn.

Voter Registration and Turnout

Section 4(b)’s coverage formula is keyed to two

indicators of voter access: voter turnout and the use of tests

and devices in voter registration. See 42 U.S.C. § 1973b(b).

In 1966 the Supreme Court characterized the VRA as

“specifically designed” to remedy the “misuse of tests and

devices” that characterized the “widespread and persistent

discrimination” at the time. Katzenbach, 383 U.S. at 331.

Section 5 was thus meant, at the very least, to ensure that

members of minority groups had equal access to the voting

booth.

11

Figures I and II3 focus on this central problem. The two

charts compare white and black registration and turnout rates

in the 2004 election, using state-by-state estimates from the

U.S. Census Bureau. See U.S. Census Bureau, Reported

Voting and Registration of the Total Voting-Age Population,

at tbl.4a, available at http://www.census.gov/hhes/www/socde

mo/voting/publications/p20/2004/tables.html. Each chart

takes the number of non-Hispanic whites who registered or

turned out as a proportion of the total citizen voting-age

population (“CVAP”) and compares that ratio to the same

ratio for the black population, i.e., it displays the ratio of these

two ratios for each state. Thus the greater the ratio (and the

further to the left on the chart), the greater the racial disparity.

The chart excludes states where the Census Bureau was

unable to make reliable estimates of black registration and

turnout rates (presumably because the black population was

too small to get a sufficient sample).4

3

All the charts exclude Michigan and New Hampshire, both

partially covered states, because the few small townships covered

constitute only a minute portion of those states and, as far as I can

tell, have never been the subject of a § 5 action.

4

The only covered jurisdictions excluded are Alaska, New

Hampshire, and South Dakota. Of those, only Alaska is a fully

covered state. The other states excluded for want of data are

Hawaii, Idaho, Iowa, Kansas, Maine, Montana, Nebraska, New

Mexico, North Dakota, Oregon, Rhode Island, Utah, Vermont,

West Virginia, and Wyoming.

12

13

14

There appears to be no positive correlation between

inclusion in § 4(b)’s coverage formula and low black

registration or turnout. Quite the opposite. To the extent that

any correlation exists, it appears to be negative—

condemnation under § 4(b) is a marker of higher black

registration and turnout. Most of the worst offenders—states

where in 2004 whites turned out or were registered in

significantly higher proportion than African-Americans—are

not covered. These include, for example, the three worst—

Massachusetts, Washington, and Colorado. And in Alabama

and Mississippi, often thought of as two of the worst

offenders, African-Americans turned out in greater proportion

than whites.

Black Elected Officials

The other metric that the Rome Court considered was the

number of black elected officials. Figure III uses U.S. Census

Bureau data from 2000 and a state-by-state breakdown of such

officials from that same year and displays the number of

African-Americans who had been elected to office as a

proportion of their share of the total CVAP in a given state.

See David A Bostis, Joint Ctr. for Pol. & Econ. Studies, Black

Elected Officials: A Statistical Summary 2000, available at

http://www.jointcenter.org/research/black-elected-officials-a-

statistical-summary-2000; U.S. Census Bureau, Voting-Age

Population and Voting-Age Citizens, at tbls.1-1 & 1-3,

available at http://www.census.gov/population/www/cen2000

/briefs/phc-t31/index.html. Thus, the higher the percentage

(and accordingly the further to the right on the chart), the

closer African-Americans’ share of elected positions is to

equaling their share of the CVAP. States where the African-

American share of CVAP was less than 3% are excluded.

15

16

Again the results are the inverse of § 4(b)’s

presuppositions. Covered jurisdictions have far more black

officeholders as a proportion of the black population than do

uncovered ones. Of the ten states with the highest proportion

of black elected officials relative to population, eight are

covered states, with the top five all being fully covered states

(Virginia, Louisiana, South Carolina, Mississippi, and

Alabama). Nor can the poor scores achieved by some

uncovered states be chalked up to small black populations.

Illinois, Missouri, Delaware and Michigan, where African-

Americans comprise at least 10% of the CVAP, all fall to the

left (i.e., on the worse side) of every one of the states fully

covered by § 4(b). While the relatively high number of black

officeholders in covered states might be taken as a testament

to § 5’s past success, no one could credibly argue that the

numbers are proof of the coverage scheme’s continued

rationality.

In upholding § 5, the district court acknowledged that the

number of black elected officials had increased but found the

nature of the positions insufficient, pointing particularly to the

nationwide disparity between the black proportion of the

population (11.9%) and the number of black officials elected

to statewide office (5%). Shelby County v. Holder, 811 F.

Supp. 2d 424, 468-69 (D.D.C. 2011). It is unclear how this

supports singling out the covered jurisdictions. Of the 35

black officials holding statewide elective office in the whole

country in 2000 (including 2 from the U.S. Virgin Islands),

nearly a third (11) came from fully covered states, Bostis,

supra, at 24 tbl.7A, a proportion roughly equivalent to these

jurisdictions’ share of the nation’s African-American citizen

voting-age population (about 33%), see U.S. Census Bureau,

Voting-Age Population and Voting-Age Citizens, supra, at

tbl.1-3. Of course one might expect that the higher average

African-American share of the population in the covered

states would lead to a higher share of statewide elected

17

officials. But if on that account one thinks there has been a

shortfall in the covered states, it might be caused in part by the

Justice Department’s policy of maximizing majority-minority

districts, with the concomitant risks of “isolating minority

voters from the rest of the State” and “narrowing [their]

political influence to only a fraction of political districts.”

Georgia v. Ashcroft, 539 U.S. 461, 481 (2003). If African-

American candidates primarily face solidly African-American

constituencies, and thus develop political personas pitched

overwhelmingly to the Democratic side of the aisle, it would

hardly be surprising that they might face special obstacles

seeking statewide office (assuming, of course, racially-

polarized voting, as § 5 does). See Epstein, supra, at 390-92.

Federal Observers

Section 8 of the VRA authorizes the Department to send

federal observers to covered jurisdictions in order to enter

polling places and monitor elections if “necessary to enforce

the guarantees of the 14th or 15th amendment.” 42 U.S.C.

§ 1973f(a)(2)(B). Additionally, § 3(a) permits a court to

authorize the appointment of federal observers in any political

subdivision, whether covered or uncovered, if the court finds

it “appropriate to enforce the voting guarantees of the

fourteenth or fifteenth amendment.” Id. § 1973a(a); see also

id. § 1973f(a)(1). In an extensive report, the National

Commission on the Voting Rights Act mapped the number of

occasions these observers had been assigned to states in the

22-year period between the prior VRA authorization (1982)

and the 2004 election. See Nat’l Comm’n on the Voting

Rights Act, Protecting Minority Voters: The Voting Rights Act

at Work 1982-2005, at 61 & Map 10B (Feb. 2006) (“Nat’l

Comm’n Report”). Figure IV shows the state-by-state

distribution of observer coverages per million minority

residents, where the minority population is calculated by

subtracting the non-Hispanic white population from the total

18

2004 population, as estimated by the U.S. Census Bureau.

See U.S. Census Bureau, Annual Estimates of the Population

for Race Alone and Hispanic or Latino Origin for the United

States and States: July 1, 2004, available at http://www.censu

s.gov/popest/data/historical/2000s/vintage_2004/state.html.

Superficially, Figure IV supports § 4(b), indicating that

observers are being sent to covered states more often than to

uncovered ones. Six of the “worst” eight states are covered

ones. But a number of factors undermine any serious

inference. First, the National Commission report explains that

it has captured “each occasion when federal observers are

detailed to a jurisdiction covered by Section 5 or Section 203.”

Nat’l Comm’n Report at 60 (emphasis added). The apparent

implication is that the Commission didn’t purport to collect

data for jurisdictions not covered by either of those sections; if

so, the data are useless for comparative purposes. Indeed,

testimony before Congress suggests that the Civil Rights

Division simply doesn’t use “observers” for uncovered states,

preferring instead to send its own staff lawyers to monitor

elections “[i]n areas of the country where Federal observers

cannot be sent” (presumably meaning, “cannot be sent without

the necessity and deterrent of getting court approval”). Voting

Rights Act: Sections 6 and 8—The Federal Examiner and

Observer Program: Hearing Before the Subcomm. on the

Constitution of the Comm. on the Judiciary, 109th Cong. 196

(2005) (statement of Bernard Schlozman). In fact, when

calling this to Congress’s attention, a Department official

noted that the “the great bulk of . . . recent enforcement cases

since, say 1993, have involved jurisdictions (e.g.,

Massachusetts, California, New York, New Jersey, Florida,

Washington, and Pennsylvania) where there is no statutory

authority to send Federal observers.” Id.

19

20

Even if we were to assume the National Commission’s

figures to be complete, and thus that every federal observer

between 1982 and 2004 was sent to a jurisdiction already

covered under some part of the VRA (either § 5 or § 203), this

suggests another limitation on the data’s relevance: The same

Department that administers § 5 preclearance also decides

where to send observers, so it is unsurprising that the covered

states, which are already in the Department’s sights, would

also receive the most observers. Finally, § 3 forces the Justice

Department to go to court for authorization to assign

observers to uncovered areas, while § 8 imposes no such

hurdle for the covered ones, undermining further the data’s

already questionable value.

Successful Section 2 Lawsuits

The final metric for which comparative data exist is

reported, successful § 2 lawsuits. Appellees point us to a

comprehensive list of reported, post-1982 § 2 cases compiled

by Professor Ellen Katz and the Voting Rights Initiative at the

University of Michigan Law School. See Ellen Katz & The

Voting Rights Initiative, VRI Database Master List (2006)

(“Katz Master List”), available at http://sitemaker.umich.edu/

votingrights/files/masterlist.xls. Relying on these data, the

district court noted that more than 56% of successful § 2 suits

from 1982 to 2006 have been filed in covered jurisdictions,

although those jurisdictions comprise only a quarter of the

nation’s population. See Shelby County, 811 F. Supp. 2d at

506.

But the persuasive power of this statistic dissolves when

we disaggregate the data by state. Figure V looks at each

state’s number of successful § 2 lawsuits between 1982 and

2005, per million residents, using the same 2004 U.S. Census

Bureau population estimates used above. Because Professor

Katz’s database helpfully informs us whether each lawsuit

21

was located in a covered or uncovered jurisdiction, it is

possible to break out the covered portions of partially covered

states from the uncovered portions:5 A “(C)” below the

state’s abbreviation indicates that the data pertain only to the

covered portion of that state, and an “(NC)” indicates the

opposite. Because one successful case in a covered portion of

South Dakota in 24 years produced a ratio of 43 cases for

every hypothetical million residents, the covered portions of

South Dakota are excluded in order to avoid distorting the

chart’s scale.

5

In order to separately calculate the populations of the covered

portions of partially covered states (namely, New York, California,

North Carolina, and Florida), Chart V uses the county-specific

population estimates from the U.S. Census Bureau. See U.S.

Census Bureau, Annual Estimates of the Resident Population for

Counties: April 1, 2000 to July 1 2004, http://www.census.gov/pope

st/data/counties/totals/2004/CO-EST2004-01.html (linking to

county-specific data for these states and others); Voting Section,

U.S. Dep’t of Justice, Section 5 Covered Jurisdictions,

http://www.justice.gov/crt/about/vot/sec_5/covered.php (last visited

May 9, 2012).

22

23

Like the federal observer data discussed above, Figure V

suggests that a more narrowly tailored coverage formula—

capturing only Mississippi, Alabama, and Louisiana, and

possibly the covered portions of South Dakota and North

Carolina—might be defensible. But beyond these, the

covered jurisdictions appear indistinguishable from their

uncovered peers. The five worst uncovered jurisdictions,

including at least two quite populous states (Illinois and

Arkansas), have worse records than eight of the covered

jurisdictions: the six covered states appearing to the right, plus

two fully covered states—Arizona and Alaska—which do not

appear on the chart at all because there has been not one

successful § 2 suit in those states in the whole 24-year period.

Of the ten jurisdictions with the greatest number of successful

§ 2 lawsuits, only four are covered (five if we add back in the

covered portion of South Dakota). A formula with an error

rate of 50% or more does not seem “congruent and

proportional.”

To bolster these numbers, the majority relies on an

account of purportedly successful, but unreported § 2 cases,

numbers that it rightly notes one should “approach . . . with

caution.” Maj. Op. at 50. Indeed, beyond the serious

concerns about these data already elucidated by the majority

(e.g., completely different groups gathered the data regarding

covered and uncovered jurisdictions), we also have almost no

information for how Mr. McCrary and his staff identified

particular cases as “successful” or not. All we know is that he

required “some evidence” that the case was “resolved” under

§ 2 and “some reference” to settlement. Joint Appendix 95.

And the inference of “success” from evidence of possible

settlements seems exceptionally weak, for both the unreported

cases in the covered jurisdictions compiled by the National

Commission and those from the uncovered jurisdictions

compiled by Mr. McCrary. It overlooks not only the range of

outcomes embraced in the concept of settlement but also the

24

strategic factors, including legal fees and reputational risk,

that go into a jurisdiction’s decision to settle.

Additionally, defenders of the coverage scheme point to

two circumstances that might also artificially reduce § 2

figures for the covered states, namely the “blocking” effect of

actual § 5 vetoes, and the deterrent effect of jurisdictions’

having to seek preclearance. As to blocking, there seems little

basis to infer that many of the 626 objections spread over 24

years were substitutes for successful § 2 suits. Any such

inference is undermined by the Department’s ability to almost

costlessly “Just Say No,” the allocation of the burden of proof

to the jurisdiction, the legal fees that fighting the Department

will entail, and the difference in the substantive standards

governing § 2 and § 5 proceedings.

As to the imputed deterrence, it is plainly unquantifiable.

If we assume that it has played a role, how much should we

inflate the covered states’ figures to account for it, and which

covered states? Given much weight, the supposed deterrent

effect would justify continued VRA renewals out to the crack

of doom. Indeed, Northwest Austin’s insistence that “current

burdens . . . must be justified by current needs,” 129 S. Ct. at

2512, would mean little if § 5’s supposed deterrent effect were

enough to justify the current scheme. See Tr. of Oral Arg. at

28, Northwest Austin Municipal Utility Dist. No. One v.

Holder, 129 S. Ct. 2504 (2009) (No. 08-322) (statement of

Chief Justice Roberts) (“Well, that’s like the old—you know,

it’s the elephant whistle. You know, I have this whistle to

keep away the elephants. . . . Well, there are no elephants, so

it must work.”).

* * *

To recap, of the four metrics for which comparative data

exist, one (voter registration and turnout) suggests that the

25

coverage formula completely lacks any rational connection to

current levels of voter discrimination, another (black elected

officials), at best does nothing to combat that suspicion, and,

at worst, confirms it, and two final metrics (federal observers

and § 2 suits) indicate that the formula, though not completely

perverse, is a remarkably bad fit with Congress’s concerns.

Given the drastic remedy imposed on covered jurisdictions by

§ 5, as described above, I do not believe that such equivocal

evidence can sustain the scheme.

The Supreme Court’s initial review of the formula in

1966 provides a model for evaluating such an imperfect

correlation. It assessed the evidence of discrimination before

it and divided the covered jurisdictions into three categories:

(1) a group for which “federal courts have repeatedly found

substantial voting discrimination”; (2) another group “for

which there was more fragmentary evidence of recent voting

discrimination”; and (3) a third set consisting of the “few

remaining States and political subdivisions covered by the

formula,” for which there was little or no such evidence of

discrimination, but whose use of voting tests and low voter

turnout warranted inclusion, “at least in the absence of proof

that they have been free of substantial voting discrimination in

recent years.” Katzenbach, 383 U.S. at 329-30. In that

original review, the Supreme Court placed three states

(Alabama, Mississippi, and Louisiana) in category one,

another three (Georgia, South Carolina, and the covered

portions of North Carolina) in category two, and finally two

fully covered states (Virginia and Alaska) plus a few counties

in Hawaii, Idaho, and Arizona, in category three.

The evidence adduced above yields a far worse fit than

the data reviewed in Katzenbach. Indeed, one would be hard-

pressed to put any of the covered jurisdictions into

Katzenbach’s first category. Based on any of the comparative

data available to us, and particularly those metrics relied on in

26

Rome, it can hardly be argued that there is evidence of a

“substantial” amount of voting discrimination in any of the

covered states, and certainly not at levels anywhere

comparable to those the Court faced in Katzenbach. In terms

of successful § 2 law suits, only three covered states—

Mississippi, Louisiana, and Alabama—plus uncovered

Montana—have more than two successful suits per million

residents over the past quarter-century (excluding of course

the covered portion of South Dakota, which scores high only

because with such a small population the one suit there

produces a high ratio per hypothetical million); in fact, these

three states are the only ones with more than 10 successful

suits in the 24 years between 1982 and 2006.6 See Katz

Master List. And of course, even this number may be

artificially large since a successful § 2 suit does not

necessarily entail a finding of unconstitutional behavior (i.e.,

intentionally discriminatory acts); indeed, the Katz Study

itself reports only 12 findings of intentional discrimination in

the covered jurisdictions over the same two-and-a-half

decades, and on my reading of the cases Professor Katz lists,

there are even fewer. See, e.g., Brown v. Bd. of School

Comm’rs, 706 F.2d 1103, 1107 (11th Cir. 1983) (listed in both

the Senate and Katz reports as a case finding discriminatory

intent, but the case finds such intent only as to an electoral

system enacted in 1876).

Even assuming that these small numbers would qualify as

“fragmentary evidence” adequate to place those three in

Katzenbach’s second category, that leaves six fully covered

states (plus several jurisdictions in partially covered states) in

category three, many more than in 1966, when only two fully

6

I exclude North Carolina here because four of its ten

successful suits were located in uncovered portions of the state. See

Katz Master List.

27

covered states (Virginia and Alaska) were not included in

either category one or two. See Katzenbach, 383 U.S. at 318,

329-30. A coverage scheme that allows two or three of the

worst offenders to drag down other covered jurisdictions,

whose continued inclusion is merely a combination of

historical artifact and Congress’s disinclination to update the

formula, can hardly be thought “congruent and proportional.”

See Nathaniel Persily, The Promise and Pitfalls of the New

Voting Rights Act, 117 YALE L.J. 174, 208-09 (2007)

(concluding that any “debate over the coverage formula”

would “likely have led to the complete unraveling” of the

VRA’s 2006 reauthorization campaign); id. at 208 (“The most

one can say in defense of the formula is that it is the best of

the politically feasible alternatives . . . .”). Congress’s

inability to agree on a currently coherent formula is not a good

reason for upholding its extension of an anachronism.

Moreover, the Court in 1966 relied on rather a natural

inference from the data available. The tight relationship

between the two trigger criteria (i.e., voter turnout and the use

of voting “tests and devices”) and evidence of discrimination

in the states in categories one and two, made it logical to

suppose that Congress reasonably inferred a comparable fit

for the remaining covered jurisdictions for which direct

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