Amicus Curiae Brief — Wes Allen, Alabama Secretary of State, et al., Appellants v. Evan Milligan, et al.

Nos. 21-1086, 21-1087

================================================================================================================

In The

Supreme Court of the United States

---------------------------------♦--------------------------------JOHN H. MERRILL, et al.,

Appellants,

v.

EVAN MILLIGAN, et al.,

---------------------------------♦---------------------------------

Appellees.

JOHN H. MERRILL, et al.,

Petitioners,

v.

MARCUS CASTER, et al.,

Respondents.

---------------------------------♦--------------------------------On Appeal From And Writ Of Certiorari

To The United States District Court

For The Northern District Of Alabama

---------------------------------♦--------------------------------BRIEF OF BIPARTISAN GROUP OF SENATORS

AND CONGRESSIONAL STAFF MEMBERSUPPORTERS OF THE 1982 VOTING RIGHTS ACT

AMENDMENTS AND 2006 VOTING RIGHTS ACT

REAUTHORIZATION AS AMICI CURIAE IN

SUPPORT OF APPELLEES AND RESPONDENTS

---------------------------------♦--------------------------------JEFFREY P. JUSTMAN

MARK D. TATICCHI

FAEGRE DRINKER BIDDLE &

Counsel of Record

REATH LLP

CRAIG S. COLEMAN

THOMAS K. PRYOR

One Logan Square,

FAEGRE DRINKER BIDDLE &

Suite 2000

REATH LLP

Philadelphia, PA 19103

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN 55402

(612) 766-7000

Jeff.Justman@

FaegreDrinker.com

Counsel for Amici Curiae

================================================================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS .............................................. i

TABLE OF AUTHORITIES ........................................ ii

INTEREST OF AMICI CURIAE .........................

1

SUMMARY OF ARGUMENT ..............................

4

BACKGROUND ...................................................

6

I.

Congress Passes the Voting Rights Act .....

6

II.

Federal Courts Use a “Results Test” to Analyze Vote-Dilution Cases ..........................

8

III.

Bolden Disrupts the Consensus on Section 2 Claims ............................................. 12

IV.

The 1982 Amendments to the VRA Abrogate Bolden ................................................ 13

V.

Subsequent Courts Adopt the Senate Report Factors ................................................ 17

VI.

This Understanding Was Cemented in the

2006 Reauthorization ................................ 20

ARGUMENT ........................................................ 21

I.

Proof of Discriminatory Intent Is Not Required to Establish a Violation of Section 2 .......................................................... 21

II.

Proportionality Is a Permissible Factor for

Courts to Consider ..................................... 27

III.

The 2006 Amendments Further Cemented

The Roles that Intent and Proportionality

Play in Section 2 Analysis ......................... 32

CONCLUSION..................................................... 33

ii

TABLE OF AUTHORITIES

Page

CASES

Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252 (1977) ........................................................12

Black Voters v. McDonough, 565 F.2d 1 (1st Cir.

1977) ........................................................................12

Brnovich v. Democratic Nat’l Comm., 141 S. Ct.

2321 (2021) ................................................................6

Dove v. Moore, 539 F.2d 1152 (8th Cir. 1976) .............12

John R. Sand & Gravel Co. v. United States, 552

U.S. 130 (2008) ........................................................22

Johnson v. De Grandy, 512 U.S. 997 (1994) ......... 19, 31

Kendrick v. Walder, 527 F.2d 44 (7th Cir. 1975).........12

Kimble v. Marvel Ent., LLC, 576 U.S. 446 (2015) .......23

Mississippi Republican Executive Committee v.

Brooks, 469 U.S. 1002 (1984) ..................................26

Mobile v. Bolden, 446 U.S. 55 (1980) .................. passim

Patterson v. McLean Credit Union, 491 U.S. 164

(1989) .......................................................................22

S.C. v. Katzenbach, 383 U.S. 301 (1966) ................... 6, 7

Thornburg v. Gingles, 478 U.S. 30 (1986) ....... 19, 22, 29

Thornburg v. Gingles, No. 83-1968, 1985 WL

669643 (Oct. 1, 1985)......................................... 18, 29

Washington v. Davis, 426 U.S. 229 (1976) ..................12

Whitcomb v. Chavis, 403 U.S. 124 (1971) ................ passim

iii

TABLE OF AUTHORITIES—Continued

Page

White v. Regester, 412 U.S. 755 (1973) ................ passim

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.

1973) .................................................................. 11, 19

CONSTITUTIONAL PROVISIONS

U.S. CONST. amend. XIV..............................................12

U.S. CONST. amend. XV ................................. 6, 7, 12, 13

Voting Rights Act Amendments of 1982, Pub. L.

97-205, 96 Stat. 131 (1982) ............................... 19, 21

Voting Rights Act of 1965, Pub. L. 89-110 § 2,

79 Stat. 437 (1965) .......................................... passim

STATUTES

52 U.S.C. § 10301(a) .............................................. 21, 22

52 U.S.C. § 10301(b) .............................................. 22, 28

OTHER AUTHORITIES

127 CONG. REC. 23,205 (1981) ....................................14

128 CONG. REC. 13,171 (1982) ....................................27

128 CONG. REC. 14,127 (1982) .............................. 16, 24

128 CONG. REC. 14,130 (1982) ....................................24

128 CONG. REC. 14,137 (1982) ....................................24

128 CONG. REC. 14,305 (1982) ....................................23

128 CONG. REC. 14,326 (1982) ....................................15

128 CONG. REC. 14,337 (1982) ....................................17

iv

TABLE OF AUTHORITIES—Continued

Page

128 CONG. REC. 14,934 (1982) ....................................23

152 CONG. REC. S7,967 (2006) ....................................21

Bills to Amend the Voting Rights Act of 1965:

Hearing on S. 1992 before the S. Subcomm. on

the Constitution of the Comm. on the Judiciary, 97th Cong. 59 (1982) ........................................27

Fannie Lou Hamer, Rosa Parks and Coretta

Scott King Voting Rights Act Reauthorization

and Amendments Act of 2006, Pub. L. 109246, 120 Stat. 577 (2006) .................................. 20, 32

H.R. REP. NO. 97-227 (1982) ............... 14, 20, 22, 23, 32

H.R. REP. NO. 109-478 .................................... 20, 32, 33

Hearings on S. 1564 before the Committee on

the Judiciary, United States Senate, 89th

Cong., 1st Sess. (1965)...............................................7

James Thomas Tucker, The Politics of Persuasion:

Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J. LEGIS. 205 (2007) .................20

S. REP. NO. 89-162 (1965) ......................................... 6, 7

S. REP. NO. 97-417 (1982) ................................... passim

Thomas Boyd & Stephen Markman, The 1982

Amendments To The Voting Rights Act: A Legislative History, 40 WASH. & LEE L. REV. 1347

(1983) ............................................................... passim

1

INTEREST OF AMICI CURIAE1

Amici are a bipartisan group including former

members of Congress and former staffers to Democratic and Republican Senators as well as persons instrumental to the passage of the 1982 amendments

to the Voting Rights Act. They participated in, were intimately involved in, or supported the legislative effort

that led to the enactment of the 1982 amendments.

Each has personal knowledge of the legislative background of those amendments. They write to provide the

Court with an accurate historical account of the 1982

amendments, particularly with respect to the role of

intent and proportionality in the analysis under Section 2.

Amici also include bipartisan current and former

members of Congress who supported the re-enactment

of the Voting Rights Act in 2006 and shared the identical understanding of the role of intent and proportionality. Amici thus comprise a broad, bipartisan group,

and take no position on the ultimate issues of fact underlying the present controversy. This brief serves an

entirely different and straightforward purpose: to address arguments that seek to give intent an outsized

role, or to give proportionality no role, in Section 2

analysis.

1

No counsel for any party authored this brief in whole or in

part and no entity or person, other than amici curiae, its members, or its counsel, made any monetary contribution intended to

fund the preparation or submission of this brief. All of the parties

have provided written consent to the filing of this brief.

2

Based on their historical role in supporting the

1982 amendments and 2006 reauthorization, Amici’s

view is that the district court correctly applied the factors as Congress intended. The district court correctly

held that Section 2 does not require proof of intentional

discrimination, and it correctly considered the extent

to which minority groups in Alabama have been able

to elect leaders in proportion to their population, without affording that factor dispositive or disproportionate weight. When Congress amended Section 2 in 1982

(and re-enacted it in 2006), it painstakingly clarified

that proof of intent was not required and that proportionality, while not dispositive, was a permissible factor that courts can consider.

Our primary purpose is to ensure that Section 2 is

interpreted consistent with the statutory text and

Congress’s intent, and not given any unduly cramped

interpretation that is divorced from the historical

understanding of those amendments integral to its

passage. This brief supports the district court and Appellees because, on these discrete issues, their position

is historically accurate. This brief rebuts Appellants’

position (and those of their Amici) only insofar as they

misinterpret the text and intent of Section 2 as requiring proof of intent or excluding consideration of proportionality.

Amici include:

• John R. Danforth (R-Mo.), a United States Senator who represented Missouri from 1976–1995.

3

• Dennis W. DeConcini (D-Ariz.), a United States

Senator who represented Arizona from 1977–1995.

Sen. DeConcini supported and voted for the 1982

amendments to the Voting Rights Act.

• Richard J. Durbin (D-Ill.), a United States

Senator who has represented Illinois in the Senate

since 1997. Sen. Durbin supported and voted for the

2006 reauthorization of the Voting Rights Act.

• David F. Durenberger (R-Minn.), a United

States Senator who represented Minnesota from 1978–

1995. Sen. Durenberger supported and voted for the

1982 amendments to the Voting Rights Act.

• Patrick Leahy (D-Vt.), a United States Senator

who has represented Vermont since 1974. Sen. Leahy

supported and voted for the 1982 amendments to the

Voting Rights Act as well as the 2006 reauthorization

of the Voting Rights Act.

• Lisa Murkowski (R-Ak.), a United States Senator who has represented Alaska as a Senator since

2002. Sen. Murkowski supported and voted for the

2006 reauthorization of the Voting Rights Act.

• Armand Derfner, the former director of the

Voting Rights Act Project for the Joint Center for Political Studies in Washington, D.C. Mr. Derfner litigated multiple, seminal cases under the Voting Rights

Act brought by private plaintiffs, and he testified before both the House and Senate Judiciary Committees

in support of the 1982 amendments to the Voting

Rights Act.

4

• Michael R. Klipper, former Senate Judiciary

Committee Chief Counsel to Senator Charles McC.

Mathias, Jr. (R-Md.), the chief sponsor of Senate Bill

1992 (97th Congress) (“Senate Bill 1992”).

• Ralph G. Neas, former (1981–1995) Executive

Director, The Leadership Conference on Civil Rights, a

leading participant in legislative history of the 1982

Amendments to the Voting Rights Act, and former

Chief Counsel to Senator Edward W. Brooke (R-Mass.)

and Senator David F. Durenberger (R-Minn.).

• Burton V. Wides, former Senate Judiciary Committee Chief Counsel to Senator Edward M. Kennedy

(D-Mass.), the chief co-sponsor of Senate Bill 1992.

---------------------------------♦---------------------------------

SUMMARY OF ARGUMENT

The Voting Rights Act (“VRA”) is among the most

important laws passed by Congress. Designed to help

rectify decades of discrimination against African Americans and minority groups, it has helped transform

American democracy.

Section 2 of the VRA is essential to those efforts.

As drafted in 1965, it banned any laws or regulations

that would “deny or abridge the right to vote on account of race or color.” Initially, courts correctly understood Section 2 as creating an objective, resultsfocused rule. Thus, when plaintiffs brought claims arguing that a reapportionment scheme diluted their

votes, courts would assess whether the challenged law

5

had the practical effect of denying them equal access

to the political process.

That changed in 1980. In Mobile v. Bolden, this

Court ruled that Section 2 plaintiffs were required to

prove that challenged policies were intentionally discriminatory. Civil rights and political leaders around

the country were quick to condemn the Bolden decision

as inconsistent with the text and intent of the VRA and

of making it unfairly difficult to challenge discriminatory policies.

Congress acted quickly. It amended Section 2 in

1982 to make clear that proof of intent was not required to establish a Section 2 violation. Rather, Section 2 is violated anytime a law has the result of

preventing plaintiffs from enjoying equal access to the

political process. Congress also clarified that proof

of disproportionate representation was not enough,

standing on its own, to establish a Section 2 violation,

but that it could be considered as one among many factors in a “totality of the circumstances” analysis.

The district court correctly understood and applied those core elements of Section 2. To the extent

Appellants or their amici argue that proof of intent is

required, or that a consideration of proportionality is

prohibited, they are historically incorrect. Congress

spoke clearly when it rejected those arguments in

1982. The Court should honor that intent in interpreting Section 2.

---------------------------------♦---------------------------------

6

BACKGROUND

I.

Congress Passes the Voting Rights Act.

Ratified in 1870, the Fifteenth Amendment states

that the right 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 that

“Congress shall have power to enforce this article by

appropriate legislation.” U.S. CONST. amend. XV. The

Amendment did not, however, stop states from passing

laws designed to suppress African American voters

through indirect means. S. REP. NO. 89-162, pt. 3, at 4

(1965). “States employed a variety of notorious methods, including poll taxes, literacy tests, property qualifications, white primaries, and grandfather clauses.”

Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321,

2330 (2021) (cleaned up). Many such practices were invalidated through case-by-case litigation, but others

remained and, combined with fraud and violence, kept

registration rates of African Americans distressingly

low in the states in which those practices predominated. See S.C. v. Katzenbach, 383 U.S. 301, 311–13

(1966).

On March 7, 1965, nearly a century after the passage of the Fifteenth Amendment, civil rights activists

departed Selma, Alabama, en route to Montgomery, Alabama in protest of voter suppression of African Americans. The activists were met with force, culminating

into what is now known as “Bloody Sunday.” Brnovich,

141 S. Ct. at 2353 (Kagan, J., dissenting).

7

Responding to the events in Alabama, President

Johnson wrote to Congress, urging it to pass legislation

to protect voting rights. Ibid. On March 17, 1965, a bill

to enforce the promises made in the Fifteenth Amendment was sent to Congress. S. REP. NO. 89-162, pt. 3, at

2 (1965).

During the Congressional hearings on the Voting

Rights Act, Attorney General Katzenbach testified that

Section 2 would ban “ ‘any kind of practice . . . if its purpose or effect was to deny or abridge the right to vote

on account of race or color.’ ” Hearings on S. 1564 before

the Committee on the Judiciary, United States Senate,

89th Cong., 1st Sess., 191 (1965).

President Johnson signed the bill into law on August 6, 1965. Many of its provisions were designed to

eliminate various tests and devices that had historically been used to prevent African Americans from

voting, most notably Section 5’s “preclearance” requirements. See Katzenbach, 383 U.S. at 315–16; Thomas

Boyd & Stephen Markman, The 1982 Amendments To

The Voting Rights Act: A Legislative History, 40 WASH.

& LEE L. REV. 1347, 1348–49 (1983). Specific to this

case, Section 2, which applied nationally, provided that

“[n]o voting qualification or prerequisite to voting, or

standard, practice or procedure shall be imposed or applied by any State or political subdivision to deny or

abridge the right of any citizen of the United States to

vote on the account of race or color.” Voting Rights Act

of 1965, Pub. L. 89-110 § 2, 79 Stat. 437, 437 (1965).

8

II.

Federal Courts Use a “Results Test” to Analyze Vote-Dilution Cases.

In the years that followed the passage of Section 2

in 1965, federal courts developed a consensus view concerning the facts that a plaintiff must prove in order to

show that a state or municipal law effectively diluted

or canceled out the voting power of minority groups,

known as vote-dilution cases. Two cases in particular—Whitcomb v. Chavis, 403 U.S. 124 (1971) and

White v. Regester, 412 U.S. 755 (1973)—established a

practical, results-based approach to these vote-dilution

challenges.

In Whitcomb, residents of Marion County, Indiana

alleged that a state law establishing the County as a

multimember district diluted the voting strength of African Americans and poor people living in certain census tracts of the county. 403 U.S. at 128. Plaintiffs

argued that, “[w]ith single-member districting,” they

could “elect three members of the house and one senator, whereas under the present districting voters in the

area have almost no political force or control over legislators because the effect of their vote is cancelled out

by other contrary interest groups in Marion County.”

Id., at 129 (quotation marks omitted).

This Court ruled that there was “no suggestion . . .

that Marion County’s multi-member district, or similar districts throughout the State, were conceived or

operated as purposeful devices to further racial or economic discrimination.” Id., at 149. Nor, the Court

noted, was there evidence that African American

9

voters were prevented from participating equally in

the electoral process, that their views and interests

were ignored by their preferred candidates when they

won, or even that their interests differed very much

from other voters. Id., at 150, 155. With no evidence of

either invidious discrimination or unequal access to

the political process, all plaintiffs were able to show

was that they “suffer[ed] the disaster of losing too

many elections.” Id., at 153. That was not, on its own,

evidence of a constitutional violation. Id., at 153–55.

This Court returned to the question whether a

multi-member district improperly diluted the voting

strength of a given racial group two years later in

White. There, plaintiffs argued that Texas’s creation of

“multimember districts for Bexar County and Dallas

County operated to dilute the voting strength of racial

and ethnic minorities.” 412 U.S. at 759. Building on

Whitcomb, this Court explained that the plaintiffs’ burden was to establish that the “political processes leading to nomination and election were not equally open

to participation by the group in question—that its

members had less opportunity than did other residents

in the district to participate in the political processes

and to elect legislators of their choice.” Id., at 766.

To carry that burden, plaintiffs presented evidence that African Americans and Mexican Americans

were subjected to historical discrimination in Texas “in

the fields of education, employment, economics, health,

politics and others”; that they are more likely to live

in areas “of poor housing” and to “have low income and

a high rate of unemployment”; that political parties

10

employed “racial campaign tactics”; that they were

very rarely able to elect members of their own groups

to political office; that the political parties and elected

leaders did not “exhibit good-faith concern for the

political and other needs and aspirations of ” their communities; and that “characteristics of the Texas electoral system, neither in themselves improper nor

invidious, enhanced the opportunity for racial discrimination.” Id., at 765–69. Based on the “totality of the

circumstances,” this Court affirmed the three-judge

district court’s ruling that multimember districts,

when overlaid on the practical realities facing those

communities, served to “effectively remove[ ]” those

communities “from the political processes . . . in violation of all the Whitcomb standards.” Id., at 769.

There were two key elements that characterized

the Whitcomb/White approach. First, neither required

proof of intentional discrimination. The opinions do not

explicitly require proof of intent, nor did the Whitcomb

or White Courts employ methods of analysis that would

suggest intent is required. Instead, their analyses were

based on a “blend of history and an intensely local appraisal of the design and impact of . . . multimember

district[s] in the light of past and present reality, political and otherwise.” Id., at 769–70. Plaintiffs did not

need to prove that they were intentionally denied

equal access to the political process. Rather, it was

enough to show that racial minorities “had less opportunity than did other residents in the district to participate in the political processes and to elect legislators

of their choice.” Id., at 766.

11

Second, in both cases, the fact that a minority

group was unable to secure “legislative seats in proportion to its voting potential” was deemed a relevant factor, but it was neither a necessary nor sufficient one.

White, 412 U.S. at 765–66. Plaintiffs in both Whitcomb

and White demonstrated that they were unable to secure representation in proportion to their voting potential, but that fact was not dispositive when weighed

against the totality of other circumstances: the White

plaintiffs prevailed while the Whitcomb plaintiffs did

not. And the White Court was careful to say that it

was “not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential”—not that it was “not

relevant.” Id., at 766–67 (emphasis added).

Federal appellate courts quickly synthesized and

employed the approaches outlined in Whitcomb and

White. Notably, the Fifth Circuit announced a multifactor, results-based approach to vote-dilution cases in

Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973).

The Zimmer court, citing Whitcomb and White, stated

that the relevant factors to consider include: the “lack

of access to the process of slating candidates, the unresponsiveness of legislators to their particularized interests, a tenuous state policy underlying the preference

for multi-member or at-large districting, or that the

existence of past discrimination in general precludes

the effective participation in the election system.”

Id., at 1305.2 The Zimmer court correctly omitted a

2

The Zimmer court also pointed to several other factors as

supporting a case of vote dilution. 485 F.2d at 1305.

12

requirement that there be proof of intentional discrimination. As in White and Whitcomb, it was enough to

establish that a voting scheme “operate[s] to minimize

or cancel out the voting strength of racial elements of

the voting population.” Id., at 1303. Other courts followed suit, employing similar frameworks in assessing

voter dilution claims. See, e.g., Kendrick v. Walder, 527

F.2d 44, 48–49 (7th Cir. 1975); Dove v. Moore, 539 F.2d

1152, 1155 (8th Cir. 1976); Black Voters v. McDonough,

565 F.2d 1, 4 (1st Cir. 1977).

III. Bolden Disrupts the Consensus on Section 2 Claims.

The growing consensus on vote-dilution cases—

that intent is not required and instead that the result

of unequal access to the political process was sufficient—was disrupted by this Court’s decision in Mobile

v. Bolden, 446 U.S. 55 (1980). Citing Washington v. Davis, 426 U.S. 229 (1976), and Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252 (1977), the Bolden Court

definitively stated that a vote-dilution claim under either the Fourteenth or Fifteenth Amendment requires

proof of intentional discrimination. 446 U.S. at 61–70.

According to Bolden, it was not sufficient to demonstrate discriminatory effects or results; rather, plaintiffs were required to establish the challenged policies

were “motivated by a discriminatory purpose.” Id., at

62.

Importantly for this case, Bolden next concluded

that the textual similarities between the Fifteenth

13

Amendment and Section 2—namely, that both prohibit

the “den[ial] or abridge[ment]” of the right to vote “on

account of race”—meant that Section 2 also required

proof of intentional discrimination. Id., at 60–61. Bolden thus foreclosed the use of a “results test” for

proving either constitutional or Section 2-based votedilution claims. Id., at 61, 72–73.

IV. The 1982 Amendments to the VRA Abrogate Bolden.

The Bolden decision generated an immediate and

widespread backlash from legal and political commentators, as well as from the civil rights community. See

Boyd & Markman, 40 WASH. & LEE L. REV. at 1355.

That criticism culminated in the 1982 amendments to

the VRA, in which Congress altered Section 2 largely

as a direct response to Bolden’s holding. Those amendments are at the heart of this appeal.

The amendments began in the House, which

passed a version that moved the language of Section 2

further from the text of the Fifteenth Amendment

while also more clearly establishing a results-based

test:

No voting qualification or prerequisite to voting or standard, practice, or procedure shall

be imposed or applied by any State or political

subdivision to deny or abridge in a manner

which results in a denial or abridgment

of the right of any citizen of the United

States to vote on account of race or color, or

in contravention of the guarantees set

14

forth in section 4(f )(2). The fact that

members of a minority group have not

been elected in numbers equal to the

group’s proportion of the population

shall not, in and of itself, constitute a violation of this section.

Compare Voting Rights Act of 1965, Pub. L. 89-110, 79

Stat. 437, 437 (1965), with H.R. REP. NO. 97-227, at 48

(1982) (“House Report”). That language was the result

of months of negotiations and bipartisan compromises

and was eventually passed with overwhelming support, earning 389 votes in the House from members

across the political spectrum. 127 CONG. REC. 23,205

(1981); see also Boyd & Markman, 40 WASH. & LEE L.

REV. at 1379.3

The Senate version of the bill, which was introduced with sixty-one co-sponsors, was similarly subjected

to thorough debate, consideration, and compromise.

The main focus of the Senate’s deliberation was over

the role that “intent” and “proportionality” would play

in Section 2 claims. Of note, there were two factions

within the Judiciary Committee, in which the bill originated. One wanted to preserve the language from the

1965 version as-is and the other supported the House

version. Boyd & Markman, 40 WASH. & LEE L. REV. at

1411–16. The former group, consisting of 7 Senators

3

The House also provided a list of objective factors that

courts should consider to establish a Section 2 violation, including

“a history of discrimination affecting the right to vote” and forms

of “discriminatory elements of the electoral system such as atlarge elections.” House Report at 30.

15

and led by Senator Hatch, believed a “results test”

would inevitably lead to a proportionality standard

and consequently preferred that Section 2 require

proof of intentional discrimination. Ibid. The latter

group, consisting of 9 Senators, worried that an intentbased standard would too narrowly constrain Section 2 claims and believed that the results-based test

in the House version could be employed without devolving into a proportionality analysis. Two Senators—

Dole and Heflin—were uncommitted. Ibid.

Senator Dole eventually negotiated a compromise

with Senators Mathias and Kennedy—for whom two of

Amici worked closely, and thus who understand the

compromise as well as anyone still living. That compromise retained the key elements of the House version but added additional language clarifying the scope

of the results-based test that courts should use. See

128 CONG. REC. 14,326 (1982); Boyd & Markman, 40

WASH. & LEE L. REV. at 1414–16. It also further clarified and strengthened the language explaining that

proportionality cannot be a dispositive factor in Section 2 claims. Boyd & Markman, 40 WASH. & LEE L.

REV. at 1414–16. Senator Dole’s new section, which is

virtually identical to the language Congress eventually enacted, read:

A violation of subsection (a) is established if,

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 class of citizens

16

protected by subsection (a) in that its members have less opportunity to participate in

the electoral process and to elect representatives of their choice. The extent to which members of a protected class have been elected to

office in the State or political subdivision is

one “circumstance” which may be considered

provided that nothing in this section establishes a right to have members of a protected

class elected in numbers equal to their proportion in the population.

Id., at 1415.

Senator Dole’s proposal attracted support from

Senators who favored the results standard and effectively ended the debate because it established the 10vote majority needed to pass the bill out of the Committee. Id., at 1415–16. The Dole Compromise was

passed by the Committee, fourteen to four, and the bill

was eventually passed out of the Committee seventeen

to one. Id., at 1419.

That was not the end of the debate. Unlike some

bills that receive substantial consideration in committee but relatively little discussion before the full Senate, the bill received a thorough consideration by the

full Senate, including lengthy debate on potential Section 2 amendments. See, e.g., 128 CONG. REC. 14,127–

42 (1982). All of the substantive amendments to the

bill, including an amendment that would have removed the results test from Section 2, were easily defeated. Boyd & Markman, 40 WASH. & LEE L. REV. at

1423–24. The bill passed the full Senate, eighty-five

17

to eight. 128 CONG. REC. 14,337 (1982). Senators Mathias and Kennedy, for whom Amici worked and who

helped broker the compromise yielding the operative

statutory language, were among the leaders of the floor

debate.

The Senate version was taken up by the House

several days later, where its members confirmed their

understanding that Section 2, as drafted, writes “into

law our understanding of the test of White against

Regester” and that the test “looks only to the results

of a challenged law . . . with no requirement of proving purpose.” Id., at 14,934–35 (statement of Rep.

Sensenbrenner). The bill was given due consideration,

id., at 14,933–40, and passed by voice vote. Boyd &

Markman, 40 WASH. & LEE L. REV. at 1425.

V.

Subsequent Courts Adopt the Senate Report Factors.

Courts have favorably cited the above-described

history of the 1982 Amendments, acknowledging Congress’s intent in rejecting Bolden’s intent requirement

and in considering proportionality a factor, but not a dispositive factor, in the Section 2 analysis.4 In particular,

4

Senator Hatch, Chairperson of the Subcommittee on the

Constitution, took the “unusual” step of publishing a Subcommittee Report. Boyd & Markman, 40 WASH. & LEE L. REV. at 1412.

Senator Hatch opposed the results test and published the Subcommittee Report, in part, “to consolidate his position and plead

his case prior to full Committee action.” Ibid. “The Subcommittee

Report does not reflect, nor does it purport to ref lect, the views

of the Congressional majority who favored overturning the Bolden intent test and reinstating a results test.” Brief for Senator

18

courts used the “Senate Report Factors” to inform Section 2’s “totality of the circumstances” analysis. Those

factors include:

1)

“the extent of any history of official discrimination in the state”;

2)

“the extent to which voting in the elections of the state . . . is racially polarized”;

3)

“the extent to which the state . . . has

used . . . voting practices or procedures

that may enhance the opportunity for discrimination against the minority group”;

4)

“if there is a candidate slating process,

whether the members of the minority

group have been denied access to that

process”;

5)

“the extent to which members of the minority group in the state . . . bear the effects of discrimination in such areas as

education, employment and health, which

hinder their ability to participate effectively in the political process”;

6)

“whether political campaigns have been

characterized by overt or subtle racial appeals”; and

7)

“the extent to which members of the minority group have been elected to public

office in the jurisdiction.”

S. REP. NO. 97-417, at 28–29 (1982) (“Senate Report”).

Charles E. Grassley, et al. as Amici Curiae Supporting Appellees

at 23–24, Thornburg v. Gingles, No. 83-1968, 1985 WL 669643, at

*14 n.10 (Oct. 1, 1985).

19

The Senate Report explained that those factors

were “derived from the analytical framework used by

the Supreme Court in White, as articulated in Zimmer.” Id., at 28 n.113. The factors are not exhaustive

and there “is no requirement that any particular number of factors be proved.” Ibid.

This Court adopted the Senate Report Factors in

Thornburg v. Gingles, 478 U.S. 30 (1986), the first case

interpreting Section 2 after the 1982 amendments. In

Gingles, the Court recognized that Congress revised

Section 2 in response to Bolden and in an effort to

make clear that discriminatory intent was not required to prove a Section 2 violation. Id., at 35. Citing

language from the Senate Report, Gingles stated that

the properly framed question in Section 2 cases is

whether, “as a result of the challenged practice or

structure, plaintiffs do not have an equal opportunity

to participate in the political processes and to elect

candidates of their choice.” Id., at 44. And to answer

that question, Gingles concluded that courts should

look to the “objective factors” identified within the

Senate Report. Id., at 44–45; see also Johnson v. De

Grandy, 512 U.S. 997, 1010 n.9, 1018–19 (1994) (citing

Gingles and its reference to the Senate Report factors

and explaining that “in modifying § 2, Congress thus

endorsed our view in White v. Regester, 412 U.S. 755

(1973), that whether the political processes are equally

open depends upon a searching practical evaluation of

the past and present reality” (cleaned up)).

20

VI. This Understanding Was Cemented in the

2006 Reauthorization.

Congress most recently reauthorized the Voting

Rights Act in 2006. Fannie Lou Hamer, Rosa Parks and

Coretta Scott King Voting Rights Act Reauthorization

and Amendments Act of 2006, Pub. L. 109-246, 120

Stat. 577 (2006). Even with single-party control—Republicans controlled the White House, Senate, and

House of Representatives—“strong bipartisan support

for renewing the VRA” led to the reauthorization’s passage with 390 votes in the House and 98 votes in the

Senate. See James Thomas Tucker, The Politics of Persuasion: Passage of the Voting Rights Act Reauthorization Act of 2006, 33 J. LEGIS. 205, 252–65 (2007). When

signing the bill into law, President Bush promised that

his administration would both “vigorously enforce” the

law and “defend it in court.” Id., at 264.

The 2006 reauthorization not only reaffirmed the

importance of Section 2, see H.R. REP. NO. 109-478, at

11 (2006) (noting that Section 2 was “instrumental”

and a “driving force” “in paving the way for minority

voters to more fully participate in the political process”), but also showed how Congress continued to understand the 1982 amendments as rejecting an intent

requirement and preserving a role for proportionality.

The 2006 House report described the 1982 amendments as “clarif[ying] Congress’s intent with respect

to Section 2,” namely, “to require that plaintiffs bringing lawsuits under the section show only that an act

resulted in a denial or abridgment . . . rather than

21

require a plaintiff prove both purpose and effect.” Id.,

at 10. Senator Ted Kennedy—who was serving in Congress in 1982, and for whom one of the Amici worked

at the time—recalled when the 1980 Bolden decision

“weakened” the original Act and how the 1982 amendments “were able to restore the act’s vitality by replacing” the Bolden decision “with a results test.” 152

CONG. REC. S7,967 (2006).

---------------------------------♦---------------------------------

ARGUMENT

I.

Proof of Discriminatory Intent Is Not Required to Establish a Violation of Section 2.

The text of the VRA, as amended in 1982, makes

clear that intent is not a requirement for proving a

Section 2 violation. As originally enacted in 1965, Section 2 prohibited policies that “deny or abridge” the

right to vote “on account of race or color.” Voting Rights

Act of 1965, Pub. L. 89-110, 79 Stat. 437, 437 (1965).

The 1982 amendments, however, changed Section 2 to

prohibit any policy that “results in a denial or abridgment” of the right to vote. Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 131, 134 (1982)

(emphasis added) (codified at 52 U.S.C. § 10301(a)).

However one may interpret the original 1965 version,

the 1982 amendments clearly adopted an objective

test: a policy can run afoul of Section 2 if it has the

result of creating a political process that is not “equally

open to participation by members” of protected classes,

22

regardless of whether it was designed to achieve that

purpose. 52 U.S.C. §§ 10301(a), (b).

Even if the text of the law was unclear—and it is

not—the legislative history would confirm that intent

is not required. Congress amended the VRA in 1982 to

“make clear that proof of discriminatory intent is not

required[.]” Senate Report at 2; see also House Report

at 2 (“It is intended by this clarification that proof of

purpose or intent is not a prerequisite to establishing

voting discrimination violations in Section 2 cases.”).5

That legislative intent should be afforded broad

deference given that Congress was taking the unusual

step to respond to a decision of this Court.6 Prior to this

5

See also, e.g., Senate Report at 16 (explaining that “proof of

discriminatory purpose should not be a prerequisite to establishing a violation of Section 2 of the Voting Rights Act”); id., at 27

(same); id., at 36 (“The intent test is inappropriate as the exclusive standard for establishing a violation of Section 2.”); id., at 67

(“The Committee expressly disavows any characterization of the

results test codified in this statute as including an ‘intent’ requirement, whether or not such a requirement might be met in a particular case by inferences drawn from the same objective factors

offered to establish a discriminatory result.”); House Report at

29 (“The purpose of the amendment to Section 2 is to restate

Congress’s earlier intent that violations of the Voting Rights Act,

including Section 2, could be established by showing the discriminatory effect of the challenged practice.”); id., at 29–30 (similar).

6

Indeed, given that this Court adopted the Senate Report’s

understanding of Section 2 in Gingles, 478 U.S. 30, 44–45 (1986),

and given that the 1982 amendments were drafted in response to

Bolden’s interpretation of the original interpretation of Section 2,

the Gingles precedent is certainly deserving of “special force,”

John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 139

(2008) (quoting Patterson v. McLean Credit Union, 491 U.S. 164,

23

Court’s decision in Bolden, there was a broad understanding that Section 2 and vote-dilution claims would

be assessed under a results-based test. By amending

Section 2, Congress sought to “restore[ ] the legal

standards . . . which applied in voting discrimination

claims prior to the litigation involved in Bolden.” Senate Report at 2; see also House Report at 2 (“The

amendment is necessary because of the unsettling effect of the decision of the U.S. Supreme Court in City

of Mobile v. Bolden[.]”).7 In Congress’s view, a “resultsbased” test better served the VRA’s original goals and

realigned it with the prevailing understanding of Section 2 and vote-dilution claims prior to the Bolden decision. See Senate Report at 2, 17–18, 27–28.8

172–73 (1989)), and overruling it would require “superspecial justification.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 447, 458

(2015).

7

See also, e.g., Senate Report at 27 (explaining that the “ ‘results’ standard” restores “the pre-Mobile legal standard” and that

“subsection (b) embodies the test laid down by the Supreme Court

in White”); id., at 67 (“With this clarification, Section 2 explicitly

codifies a standard different from the interpretation . . . contained

in the Supreme Court’s Bolden plurality opinion, i.e. the interpretation that the former language of Section 2 prohibits only purposeful discrimination.”); id., at 188 (similar, in statement of Sen.

Laxalt); id., at 197 (similar, in statement of Sen. Grassley); 128

CONG. REC. 14,305 (1982) (similar, in statement of Sen. Tsongas);

id., at 14,308 (similar, in statement of Sen. Metzenbaum).

8

Importantly, bipartisan members of Congress expressed

their understanding that the White, Whitcomb, and other preBolden cases did not require proof of intent. See, e.g., Senate Report at 21–22 (“In fact, White does not contain a single word

regarding the motives of the State Legislature Redistricting

Board that adopted the challenged plans.”); see also id. at 28;

128 CONG. REC. 14,934–35 (1982) (“We are writing into law

24

Statements in the House and Senate Reports

matter because the 1982 Amendments were the result

of a thoroughly-debated, consensus-building process

and were supported by overwhelming majorities in

both chambers of Congress. See generally supra at 10–

13. Indeed, it would have been easy to add an intent

requirement and even easier to leave the text unchanged. Senator East, for example, proposed an

amendment during the full Senate hearing of the bill

that would have had the effect of eliminating the results test. See 128 CONG. REC. 14,127–37 (1982); see

also Boyd & Markman, 40 WASH. & LEE L. REV. at

1423. That amendment was rejected by a vote of 16

to 81. 128 CONG. REC. 14,137 (1982).9 The fact that

our understanding of the test in White against Regester. And our

understanding is that this looks only to the results of a challenged

law, in the totality of the circumstances—with no requirement of

proving purpose. But should the Highest Court in the land—or a

majority of the Court—conclude there is a purpose element in

White, then the committee nonetheless has drafted a bill that does

not incorporate this requirement, and that is the ultimate legislative intent of the bill we are adopting here today.” (Statement

of Rep. Sensenbrenner)).

9

This amendment, like much of Section 2, was subject to significant discussion and debate. In urging the rejection of the

amendment, Senator Mathias explained that the “intent test asks

the wrong question” because, instead of “focusing on the crucial

question of whether or not minority voters now have a fair chance

to participate in the electoral process, the intent test diverts the

inquiry to an analysis of the subjective motives of public officials.”

128 CONG. REC. 14,130 (1982). Senator Kennedy read at length

from an editorial that explained an “intent test” is overly burdensome and defending the Dole compromise. Id., at 14,130–

31. And Senator Dole further clarified that he believed it was

25

Congress used its considered judgment to draft the

text at issue here should be given deference.

The ultimate reason for rejecting an intent standard was that it “asks the wrong question,” Senate Report at 36, and directs courts’ attention to a question of

psychological archaeology rather than asking the key

practical question with which the VRA was actually

concerned. As the Senate Report explained:

[I]f an electoral system operates today to exclude blacks or Hispanics from a fair chance

to participate, then the matter of what motives were in an official’s mind 100 years ago

is of the most limited relevance. The standard

. . . is whether minorities have equal access to

the process of electing their representatives.

If they are denied a fair opportunity to participate, the Committee believes that the system

should be changed, regardless of what may or

may not be provable about events which took

place decades ago.

Senate Report at 36.

In short, even if the words of the 1965 version of

Section 2 were open to a later reinterpretation, see Bolden, 446 U.S. at 60–61, there can be no doubt about

Section 2 after Congress amended it in 1982. The text

of Section 2 does not require, nor did Congress intend

it to require, proof of discriminatory purpose. Amici

know, because they were there.

inappropriate to use an intent standard as “the sole means of establishing a voting rights claim.” Id., at 14,131–33.

26

To the extent Appellants suggest Section 2 does require proof of intentional discrimination, they are historically incorrect. Appellants cite Justice Rehnquist’s

dissenting opinion in Mississippi Republican Executive

Committee v. Brooks, 469 U.S. 1002, 1010 (1984) for the

confusing proposition that “the House[ ] failed . . . to

write intent out of the statute.” Appellant’s Br. at 33,

73–74. The House never wrote “intent out of the statute” because, as far as Congress was concerned, it was

never there to begin with. See supra notes 7–8 and accompanying text.

Some statements Appellants make mirror statements of certain Senators who insisted that eschewing

an intent standard would necessarily lead to a de facto

proportionality analysis. See Boyd & Markman, 40

WASH. & LEE L. REV. at 1397–1400. But that position

was rejected in favor of the Dole Compromise, in support of which Senator Dole stated:

Proponents of the results standard . . . persuasively argue that intentional discrimination is

too difficult to prove to make enforcement of

the law effective. Perhaps, more importantly,

they have asked if the right to exercise a franchise has been denied or abridged, why should

plaintiffs have to prove that the deprivation of

this fundamental right was intentional. On

the other hand, many of the Committee have

expressed legitimate concerns that a results

standard could be interpreted by the courts

to mandate proportional representation. . . .

The supporters of this compromise believe

that a voting practice or procedure which is

27

discriminatory in result should not be allowed

to stand regardless of whether there exists a

discriminatory purpose or intent.

Bills to Amend the Voting Rights Act of 1965: Hearing

on S. 1992 before the S. Subcomm. on the Constitution

of the Comm. on the Judiciary, 97th Cong. 59–60 (1982)

(“Subcommittee Hearings”) (statement of Sen. Dole);

see also 128 CONG. REC. 13,171 (1982) (statement of

Sen. Kennedy) (“The results test, codified by the committee bill, is a well-established one, familiar to the

courts. It has a reliable and reassuring track record,

which completely belies claims that it would make proportional representation the standard for avoiding a

violation.”).

Senator Dole explained that the addition of subsection (b)—which included the “totality of the circumstances” language and text clarifying that the results

test “is not a mandate for proportional representation”—restores the White v. Regester approach. Subcommittee Hearings at 60. But neither Senator Dole

nor those who supported his compromise believed that

rejecting a mandate for proportional representation

was incompatible with supporting a results test. And

neither rejected the results test in favor of an intent

standard.

II.

Proportionality Is a Permissible Factor for

Courts to Consider.

The 1982 Amendments also made clear the role

that proportionality plays in assessing Section 2

28

claims. Congress did not want proportionality to be

sufficient for proving a Section 2 violation, but it also

wanted to preserve it as a factor to be considered as

part of the “totality of the circumstances.” It would

have been difficult for Congress to have been clearer

on this point.

After months of debate and compromise, Congress

agreed to limiting language stating that “nothing in

this section establishes a right to have members of a

protected class elected in numbers equal to their proportion in the population.” 52 U.S.C. § 10301(b). At the

same time, however, it stated that “[t]he extent to

which members of a protected class have been elected

to office in the State or political subdivision is one circumstance which may be considered.” Ibid. Proportionality is not a dispositive factor in the “totality of the

circumstances” analysis, but it is still a factor to consider.

This natural reading is reinforced by the legislative history. The Senate Judiciary Committee Report

states that the language “codif[ies] the approach used

in Whitcomb, White and subsequent cases, which is

that the extent to which minorities have been elected

to office is only one ‘circumstance’ among the ‘totality’

to be considered.” Senate Report at 68. Critically, Senators Dole and Grassley—who were each integral to

crafting the bipartisan compromise language—also

wrote separate statements affirming that their understanding of the amended language was in line with

that of the plain text and the Senate Committee Report. See Senate Report at 194 (statement of Sen. Dole)

29

(“The extent to which members of a protected class

have been elected under the challenged practice or

structure is just one factor, among the totality of circumstances to be considered, and is not dispositive.”);

see also id. at 197 (statement of Sen. Grassley) (“Thus

the new language of Section 2 is the test utilized by the

Supreme Court in White, nothing more and nothing

less.”).

Indeed, in contemporaneous amicus briefs filed in

connection with Gingles, numerous Republican Members of Congress reaffirmed that proportionality may

be a factor, though not a dispositive one. See Brief for

Senator Charles E. Grassley, et al. as Amici Curiae

Supporting Appellees at 23–24, Thornburg v. Gingles,

No. 83-1968, 1985 WL 669643, at *23–24 (Oct. 1, 1985).

(“The ‘disproportionality’ of minority group representation is not the gravamen of the Section 2 claim in

such a case, though it may be a factor.”); Brief for Republican National Committee as Amici Curiae Supporting Appellees at 5, Thornburg v. Gingles, No. 831968, 1985 WL 669647, at *5 (Aug. 30, 1985) (“the statute does not prohibit any consideration of the relative

representation of a protected class.”).

Even Senate opponents of the final amended language recognized that it was intended to incorporate

the approach taken by the Court in White and Whitcomb. See Senate Report at 104, n.24 (statement of

Sen. Hatch) (“The Committee Report could not be more

explicit in its adoption of the standard of the Supreme

Court in White v. Regester. . . . [C]ourts are obliged to

recognize this and to appreciate that Congress (for

30

better or worse) chose to incorporate the case law of

White—all of its case law—in rendering meaning to the

new statutory language.”).

Of course, Congress could have outright rejected

the consideration of proportionality for Section 2

claims. But no such attempts were made, and Congress’s decision to forgo that route and instead adopt

the language before the Court today cements an understanding that proportionality is a permissible factor.10

To the extent Appellants and their amici argue

that the district court should not have considered proportionality, or that it gave too much weight to that

factor, they are incorrect. The trial court dedicated

more than a dozen pages to assessing the Senate Report factors, including the history of discrimination in

Alabama, “the extent to which members of the minority group” in Alabama “bear the effects of discrimination in such areas as education, employment and

health,” and the prevalence of racial appeals in political campaigning in Alabama. Milligan Stay Appendix

(“MSA”) 187–205. In its findings of fact and conclusions

of law, the court’s proportionality analysis consisted of

just three pages, most of which is spent discussing

whether and to what extent proportionality is relevant

in the first place. Id., at 203–05. Whatever might be

said about the district court’s ultimate conclusions, it

10

Indeed, to the extent Senator East’s amendment would

have attempted to preclude considerations of proportionality by

restoring the Bolden standard, it was handily rejected by the Senate. See supra note 8 and accompanying text.

31

was historically correct for the district court to consider this factor.

Appellants misleadingly suggest that the district

court gave dispositive weight to proportionality, but

that is not a fair reading of the district court’s order.

Appellants quote the district court as saying that a

“lack of proportionality ‘weighs decidedly in favor of

the plaintiffs,’ ” Appellant’s Br. at 27, 62 (quoting

MSA205) (emphasis in Appellant’s brief but not the

district court Order), but the complete sentence from

the order reads:

We do not resolve the Milligan plaintiffs’ motion for a preliminary injunction solely (or

even in the main) by conducting a proportionality analysis; rather, consistent with LULAC

and De Grandy, we consider the proportionality arguments of the plaintiffs as part and

parcel of the totality of the circumstances, and

we draw the limited and obvious conclusion

that this consideration weighs decidedly in favor of the plaintiffs.

MSA205.

Proportionality was not the “decid[ing]” factor in

the court’s analysis. It was just one factor that weighed

“decidedly,” i.e., distinctly, in plaintiffs’ favor. The district court went on to conclude that, “every Senate Factor we were able to make a finding about, along with

proportionality, weighs in favor of the Milligan plaintiffs and the Caster plaintiffs, and that no Senate Factors or other circumstances we consider at this stage

weigh in favor of Defendants.” Ibid. (emphasis added).

32

Its findings consist of a “blend of history and an intensely local appraisal of the design and impact of ”

Alabama’s districts, done “in the light of past and present reality, political and otherwise.” White, 412 U.S. at

769–70. The opinion is consistent with the text and

purpose behind Section 2, especially the 1982 Amendments.

III. The 2006 Amendments Further Cemented

The Roles that Intent and Proportionality

Play in Section 2 Analysis.

The 2006 VRA reauthorization confirmed that

Section 2 rejected any intent requirement and preserved a role for proportionality. For example, the

House Report understood the 1982 amendments as

“clarify[ing] Congress’s intent with respect to Section

2”: plaintiffs did not need to “prove both purpose and

effect,” instead they could “show only that an act resulted in a denial or abridgement in the right to vote.”

H.R. REP. NO. 109-478, at 10 (2006).

Congress had the chance to amend Section 2 and

recalibrate the role of intent and proportionality, yet

it did no such thing. Instead, Congress had a shared

understanding of Section 2’s importance. See Pub. L.

109-246 § 2(b)(3)–(4), 120 Stat. 577, 577–78 (2006) (the

final text of the bill pointed to “the continued filing of

section 2 cases” as “[e]vidence of continued [voter] discrimination.”). And Congress used that shared understanding to make other improvements in the VRA. For

example, when Congress streamlined the recovery of

expert witness fees, it was because “much of the

33

burden associated with either proving or defending a

Section 2 vote dilution claim is established by information that only an expert can prepare.” H.R. REP. NO.

109-478, at 64 (2006). Far from walking back its approach to proving Section 2 violations, Congress attempted to bolster people’s access to that provision’s

protections.

If anything, the 2006 reauthorization revealed

Congress’s continued blessing of the 1982 approach to

Section 2, meaning that this is a well-settled consensus

that has stretched across decades.

---------------------------------♦---------------------------------

CONCLUSION

To the extent that the Court considers the proper

standard under Section 2, it should reaffirm that intent is not required, and that proportionality is a permissible, though not dispositive, factor courts may

consider.

Respectfully submitted,

JEFFREY P. JUSTMAN

Counsel of Record

CRAIG S. COLEMAN

THOMAS K. PRYOR

FAEGRE DRINKER BIDDLE &

REATH LLP

2200 Wells Fargo Center

90 South Seventh Street

Minneapolis, MN, 55402

(612) 766-7000

Jeff.Justman@

FaegreDrinker.com

34

MARK D. TATICCHI

FAEGRE DRINKER BIDDLE &

REATH LLP

One Logan Square,

Suite 2000

Philadelphia, PA 19103

Counsel for Amici Curiae