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
2
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.
3
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
4
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
5
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
7
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
8
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
9
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
11
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
12
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
15
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
18
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
evidence of discrimination was missing (i.e., those in category
three). But today the trigger criteria have lost any inherent
link to the key concern. The newest triggering data hark back
to 1972, 34 years before the current formula was enacted, and
nearly 60 years before the current act expires. Indeed, if the
formula were to be updated to use more recent election data, it
would cover only Hawaii. See 152 CONG. REC. H5131,
H5181 (daily ed. July 13, 2006).
More critically, the Court’s acceptance of the § 4(b)
formula in 1966 was explicitly based on certain reasonable
understandings of § 5’s focus. Explaining why it saw no
28
serious problem in the challengers’ claim of
underinclusiveness—§ 4(b)’s exclusion of localities not
employing “tests or devices” but showing evidence of voting
discrimination by other means—the Court observed that
Congress had learned that persistent discrimination “has
typically entailed the misuse of tests and devices, and this was
the evil for which the new remedies were specifically
designed.” Katzenbach, 383 U.S. at 331 (emphasis added).
Despite § 5’s language imposing preclearance on all manner
of voting rules not within the act’s definition of “tests or
devices,” the Court understandably saw the act as focused on,
or in its words “specifically designed” for, rooting out “the
misuse of tests and devices.” But § 5 litigation no longer
centers at all on “tests and devices.” Instead, the majority of
§ 5 objections today concern redistricting. See Peyton
McCrary et al., The Law of Preclearance: Enforcing Section
5, in THE FUTURE OF THE VOTING RIGHTS ACT 20, 25 tbl.2.1
(David Epstein et al. eds., 2006) (redistricting objections
comprised only 17% of Justice Department objections in the
1970s; in the ‘90s, they constituted 52% of all objections).
Accordingly, quite apart from the trigger criteria’s hopeless
fossilization, the intrinsic link between them and their
consequences has ceased to exist.
Nor is the coverage formula materially helped by the
VRA’s bailout provision. Although Katzenbach did note that
§ 4(a)’s bailout provision might alleviate concerns about
overinclusiveness, see 383 U.S. at 331, its ability to act as a
reliable escape hatch is questionable. In its original form,
§ 4(a) essentially permitted bailout for any jurisdiction that
had not used a voting “test or device” in the previous five
years. See Voting Rights Act of 1965, Pub. L. 89-110, § 4(a),
79 Stat. 437, 438. This in effect excluded any covered
jurisdiction whose record was not clean as of the date of initial
enactment, and until 1982 the later reenactments’ language
continued that effect (i.e., allowed access to bailout only for
29
those jurisdictions with clean records as of the VRA’s initial
adoption). While the majority correctly notes that the 1982
amendments relaxed that constraint, see Maj. Op. at 9, those
same amendments tightened the remaining substantive
standards. A covered jurisdiction can now obtain bailout if,
and only if, it can demonstrate that, during the preceding ten
years, it has (simplifying slightly): (1) effectively engaged in
no voting discrimination (proven by the absence of any
judicial finding of discrimination or even a Justice
Department “objection” (unless judicially overturned));
(2) faithfully complied with § 5 preclearance; (3) “eliminated
voting procedures and methods of election which inhibit or
dilute equal access to the electoral process”; and (4) engaged
in “constructive efforts to eliminate intimidation and
harassment of persons exercising rights protected” under the
act and “in other constructive efforts, such as the expanded
opportunity for convenient registration.” 42 U.S.C.
§ 1973b(a)(1). Perhaps because of these opaque standards,
actual bailouts have been rare; only 136 of the more than
12,000 covered political subdivisions (i.e., about 1%) have
applied for bailout (all successfully). Appellant’s Reply Br.
37; Voting Section, U.S. Dep’t of Justice, Terminating
Coverage Under the Act’s Special Provisions,
http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout
(last visited May 9, 2012) (listing successful bailouts).
Moreover, a successful action under § 4(a) does not actually
end federal oversight of bailed-out jurisdictions; for a decade
after bailout, the court “retain[s] jurisdiction” just in case the
Justice Department or “any aggrieved person” wishes to file a
motion “alleging that conduct has occurred which . . . would
have precluded” bailout in the first place. 42 U.S.C.
§ 1973b(a)(5).
All of this suggests that bailout may be only the most
modest palliative to § 5’s burdens. One scholar hypothesizes
that bailout may “exist[] more as a fictitious way out of
30
coverage than [as] an authentic way of shoring up the
constitutionality of the coverage formula.” Persily, supra, at
213. In fairness, the same scholar also entertains various
other explanations, including the possibility that the eligible
jurisdictions are just the ones for whom § 5 poses only a very
light burden, see id. at 213-14, and ultimately concludes that
no one knows which theory “best explains the relative absence
of bailouts,” id. at 214. Regardless of the reason for the trivial
number of bailouts, irrational rules—here made so by their
encompassing six states and numerous additional jurisdictions
not seriously different from the uncovered states—cannot be
saved “by tacking on a waiver procedure” such as bailout.
ALLTEL Corp. v. FCC, 838 F.2d 551, 561 (D.C. Cir. 1988);
cf. U.S. Telecomm. Ass’n v. FCC, 359 F.3d 554, 571 (D.C.
Cir. 2004).
Finally the government argues that because the VRA is
meant to protect the fundamental right of racial minorities
(i.e., a suspect classification), a heightened level of deference
to Congress is in order. Appellees’ Br. 22-23. Purportedly
supporting this proposition is Chief Justice Rehnquist’s
statement in Nevada Dep’t of Human Resources v. Hibbs, 538
U.S. 721 (2003), that when a statute is designed to protect a
fundamental right or to prevent discrimination based on a
suspect classification, “it [is] easier for Congress to show a
pattern of state constitutional violations.” Id. at 736. But the
passage simply makes the point that where a classification is
presumptively invalid (e.g., race), an inference of unlawful
discrimination follows almost automatically from rules or acts
that differentiate on the presumptively forbidden basis,
whereas for classifications judged under the “rational basis”
test, such as disability or age, “Congress must identify, not
just the existence of age- or disability-based state decisions,
but a widespread pattern of irrational reliance on such
criteria.” Id. at 735 (emphasis added). This special element
of race or other presumptively unconstitutional classifications
31
has no bearing on review of whether Congress’s remedy “fits”
the proven pattern of discrimination. To hold otherwise
would ignore completely the “vital principles necessary to
maintain separation of powers and the federal balance” that
the Court held paramount in Boerne (which of course also
involved a fundamental right, namely the right to practice
one’s religion). City of Boerne v. Flores, 521 U.S. 507, 536
(1997).
* * *
A current political dispute—state adoptions of voter
identification requirements—highlights the oddity of § 4(b).
In 2005, the state of Indiana enacted a law requiring its
citizens to present a government-issued photo identification
before voting. Against a variety of legal challenges, the
Supreme Court upheld the law. See Crawford v. Marion
County Election Bd., 553 U.S. 181 (2008). In 2011, Texas
and South Carolina both passed similar laws. See Gina Smith,
Haley Signs Voter ID Bill into Law, THE STATE, May 18,
2011; Sommer Ingram, Gov. Rick Perry Signs Voter ID Bill
into Law, ASSOC. PRESS, May 27, 2011, available at
http://www.yumasun.com/articles/perry-51036-monitortx-
rick-austin.html. But because of those states’ inclusion under
§ 4(b), they had to look to Justice Department attorneys in
Washington to seek further approval. In the end, the
Department blocked both laws. See Jerry Markon, S.C.’s
Voter ID Law Rejected, WASH. POST, Dec. 24, 2011, at A4;
Daniel Gilbert, Election 2012: Texas Law Requiring Voter
IDs Is Blocked, WALL ST. J., Mar. 13, 2012, at A4.
Why should voter ID laws from South Carolina and
Texas be judged by different criteria (at a minimum, a
different burden of persuasion, which is often critical in cases
involving competing predictions of effect) from those
governing Indiana? A glimpse at the charts shows that
32
Indiana ranks “worse” than South Carolina and Texas in
registration and voting rates, as well as in black elected
officials (Figures I, II and III). As to federal observers,
Indiana appears clearly “better”—it received none (Figure
IV). As to successful § 2 suits South Carolina and Texas are
“worse” than Indiana, but all three are below the top ten
offenders, which include five uncovered states (Figure V).
This distinction in evaluating the different states’ policies is
rational?
Despite a congressional record of over 15,000 pages and
22 hearings, Shelby County, 811 F. Supp. 2d at 496, there is
little to suggest that § 4(b)’s coverage formula continues to
capture jurisdictions with especially high levels of voter
discrimination. To the extent that the answer is, as the district
court suggested, that Congress wished to “continue to focus
on those jurisdictions with the worst historical records of
voting discrimination,” id. at 506, such an overwhelming
focus on historical practices appears foreclosed by Northwest
Austin’s requirement that current burdens be justified by
current needs.
It goes without saying that racism persists, as evidenced
by the odious examples offered by the majority, see Maj. Op.
at 27-29. But without more evidence distinguishing current
conditions in the covered jurisdictions from those in the
uncovered ones, § 4(b)’s coverage formula appears to be as
obsolete in practice as one would expect, in a dynamic
society, for markers 34-to-59 years old. Accordingly, I
dissent.
* * *
The analysis above is my sole basis for finding § 4(b) of
the VRA unconstitutional and thus for dissenting from the
court’s opinion. I need not and do not reach the
33
constitutionality of § 5 itself. But before concluding, I want to
address a critical aspect of § 5, and of some of the cases
interpreting earlier versions of that section. I address it first
simply as a matter of language—specifically the use of
language to obscure reality—and then in relation to the words
and political philosophy of the 15th Amendment. Though
unnecessary to my dissent’s outcome, the troubling tension
between the act’s encouragement of racial gerrymandering
and the ideals embodied in the 15th Amendment seems
worthy of attention.
Section 5(b) makes unlawful any voting practice or
procedure with respect to voting “that has the purpose of or
will have the effect of diminishing the ability of any citizens
of the United States on account of race or color . . . to elect
their preferred candidates of choice.” 42 U.S.C. 1973c(b)
(emphasis added). And of course similar phrasing has been
included in § 2 since 1982. See Voting Rights Act
Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131,
134 (codified at 42 U.S.C. § 1973(b)) (prohibiting policies
that prevent minority groups’ equal opportunity “to elect
representatives of their choice.”).
The language (or a close equivalent) seems to have
originated in one of the Court’s earliest opinions on § 5,
though only as an offhand phrase in its explanation of how a
shift from district to at-large voting might dilute minority
impact: “Voters who are members of a racial minority might
well be in the majority in one district, but a decided minority
in the county as a whole. This type of change could therefore
nullify their ability to elect the candidate of their choice.”
Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969). But
the use of such language became troubling in Georgia v.
Ashcroft, where the Court said that in the application of § 5 “a
court should not focus solely on the comparative ability of a
minority group to elect a candidate of its choice.” 539 U.S.
34
461, 480 (2003) (emphasis added). The “solely” of course
indicates approval of such a consideration as one among
several criteria for compliance with § 5.
Implied from the statutory “their” is necessarily a “they.”
In the context of a statute speaking of impingements on
citizens’ voting “on account of race or color,” and indeed in
the universally accepted understanding of the provision, the
“they” are necessarily members of minority groups. But in
what sense do minority groups as such have a “preferred
candidate”? Individuals, of course, have preferred candidates,
but groups (unless literally monolithic) can do so only in the
limited sense that a majority of the group may have a
preferred candidate. Thus, when the provision is translated
into operational English, it calls for assuring “the ability of a
minority group’s majority to elect their preferred candidates.”
This raises the question of what happened to the minority
group’s own minority—those who dissent from the
preferences of the minority’s majority?
Of course in any polity that features majority rule, some
people are bound to be outvoted on an issue or a candidate
and thus to “lose”—on that round of the ongoing political
game. Such losses are a necessary function of any system
requiring less than unanimity (which would be hopelessly
impractical). And in an open society that allows people freely
to form associations, and to design those associations, some
people obviously will be members of associations whose
representatives from time to time express, in their name,
opinions they do not share. But that again is a necessary
function of having associations free to adopt a structure that
empowers their leadership to speak with less than unanimous
backing.
35
But the implied “they” of § 5 is not a polity in itself; nor
is it an association freely created by free citizens. Quite the
reverse: It is a group constructed artificially by the mandate
of Congress, entirely on the lines of race or ethnicity.
On what authority has Congress constructed such groups?
Purportedly the 15th Amendment to the Constitution. But that
says that the “right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any
State on account of race, color, or previous condition of
servitude.”
It is hard to imagine language that could more clearly
invoke universal individual rights. It is “citizens” who are
protected, and they are protected from any denial of their
rights that might be based on the specified group
characteristics—race, color, or previous condition of
servitude. The members of Congress who launched the
amendment, said Senator Willard Warner, “profess to give to
each individual an equal share of political power.” CONG.
GLOBE, 40th Cong., 3d Sess. 861 (1869).
The 15th Amendment was a pivot point in the struggle for
universal human rights. The roots of the struggle are deep and
obscure. Many trace the concept to the three great
monotheistic religions, Judaism, Christianity, and Islam. See,
e.g., MICHELINE R. ISHAY, THE HISTORY OF HUMAN RIGHTS
(2004) (noting the contributions of these three traditions,
among others). No matter how spotty the actual performance
of those religions’ adherents may have been over the
centuries, the idea of a single God, claiming the allegiance of
all mankind, surely implies a recognition of the dignity and
worth of all humans, undistorted by local group loyalties
historically linked to local gods. Perhaps the Enlightenment,
though in tension with organized religion, has a better title; it
is clearly the immediate root of the French Declaration of the
36
Rights of Man and of the Citizen. But at all events the 15th
Amendment states a clear national commitment to universal,
individual political rights regardless of race or color.
Of course conventional political discourse often uses such
terms as “the black vote,” “the youth vote,” “the senior vote,”
etc. But those who use these terms—politicians, their
consultants, pundits, journalists—know perfectly well that
they are oversimplifications, used to capture general political
tendencies, not a justification for creating or assuming a
political entity that functions through a demographic group’s
“majority.” The Supreme Court has recognized that these
generalizations are no such justification. In Shaw v. Reno,
509 U.S. 629 (1993), it confronted racial gerrymandering that
took the form of including in one district persons separated by
geographic and political boundaries and who “may have little
in common with one another but the color of their skin.” Id.
at 647. Such a plan:
bears an uncomfortable resemblance to political
apartheid. It reinforces the perception that members of
the same racial group—regardless of their age, education,
economic status, or the community in which they live—
think alike, share the same political interests, and will
prefer the same candidates at the polls. We have rejected
such perceptions elsewhere as impermissible stereotypes.
Id.
The pre-Enlightenment history of continental Europe
included just such entities—“estates,” whose members voted
separately from those of the other estates. Most famously,
separately elected representatives of the nobility, the clergy,
and the “common” people gathered in 1789 in the French
Estates-General. For the last time. By the middle of that year,
the Estates-General had ceased to exist. By transforming
37
itself into a National Assembly, it precipitated the French
Revolution and the permanent abolition of voting by estates,
ultimately throughout Europe. The 15th Amendment can be
traced back to that basic development. Section 5’s mandate to
advance “the ability of any citizens of the United States on
account of race or color . . . to elect their preferred candidates
of choice” is a partial retreat to pre-Revolutionary times, an
era perhaps now so long past that its implications are
forgotten.
None of this is to suggest that the country need for a
minute countenance deliberate voting rule manipulations
aimed at reducing the voting impact of any racial group,
whether in the form of restrictions on ballot access or of
boundary-drawing. And in judicial proceedings to stamp out
such manipulations, it would of course be no defense for the
perpetrators to say that they sought only to downweight a
minority’s majority. But a congressional mandate to assure
the electoral impact of any minority’s majority seems to me
more of a distortion than an enforcement of the 15th
Amendment’s ban on abridging the “right of citizens of the
United States to vote . . . on account of race, color, or previous
condition of servitude.” Preventing intentional discrimination
against a minority is radically different from actively
encouraging racial gerrymandering in favor of the minority
(really, the majority of the minority), as § 5 does. Assuming
there are places in which a colorblind constitution does not
suffice as a “universal constitutional principle,” Parents
Involved in Community Schools v. Seattle School Dist. No. 1,
551 U.S. 701, 788 (2007) (opinion of Kennedy, J.), the voting
booth should not be one of them.