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[Oral Argument Tentatively Scheduled for February 27, 2012]
No. 11-5349
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
__________________________________________________________________
STEPHEN LAROQUE, ET AL.,
Appellants,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, ET AL.,
Appellees.
__________________________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA (NO. 10-561 (JDB))
__________________________________________________________________
JOINT APPENDIX
__________________________________________________________________
MICHAEL E. ROSMAN
MICHELLE A. SCOTT
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington, DC 20036
(202) 833-8400
MICHAEL A. CARVIN
Lead Counsel
HASHIM M. MOOPPAN
DAVID J. STRANDNESS
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001
(202) 879-3939
macarvin@jonesday.com
Counsel for Appellants
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TABLE OF CONTENTS
Relevant Docket Entries ........................................................ JA 1
Dkt. No. 1
Complaint .............................................................................. JA 4
Dkt. No. 11-2
Kinston City Council Minutes ............................................... JA 17
Dkt. No. 23
Plaintiffs’ Motion for Summary Judgment ........................... JA 35
Dkt. No. 23
Plaintiffs’ Statement of Material Facts .................................. JA 37
Dkt. No. 23-6
Kinston Objection Letter ....................................................... JA 44
Dkt. No. 23-11 Declaration of Stephen LaRoque........................................... JA 48
Dkt. No. 23-13 Declaration of John Nix......................................................... JA 53
Dkt. No. 52
Intervenors’ Renewed Motion to Dismiss ............................. JA 57
Dkt. No. 53
Intervenors’ Response to Plaintiffs’ Statement
of Material Facts .................................................................... JA 60
Dkt. No. 54
Intervenors’ Motion for Summary Judgment ........................ JA 77
Dkt. No. 54
Intervenors’ Statement of Material Facts .............................. JA 80
Dkt. No. 54-3
Declaration of Joseph M. Tyson ............................................ JA 92
Dkt. No. 54-4
Declaration of George Graham ............................................. JA 95
Dkt. No. 54-5
Declaration of Julian Pridgen ................................................ JA 97
Dkt. No. 54-6
Declaration of Courtney M. Patterson ................................... JA 99
Dkt. No. 54-7
Declaration of William A. Cooke .......................................... JA 102
Dkt. No. 54-8
Declaration of Linda Joyce Lanier ........................................ JA 104
Dkt. No. 55
Defendants’ Motion for Summary Judgment ........................ JA 106
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Dkt. No. 55-4
Defendants’ Statement of Material Facts .............................. JA 109
Dkt. No. 55-5
Defendants Response to Plaintiffs’ Statement
of Material Facts .................................................................... JA 124
Dkt. No. 55-6
Declaration of Robert S. Berman .......................................... JA 147
Dkt. No. 55-8
Declaration of Dr. Peyton McCrary ...................................... JA 162
Dkt. No. 59-1
Plaintiffs’ Response to Defendants’ Statement of
Uncontested Material Facts ................................................... JA 190
Dkt. No. 59-2
Plaintiffs’ Response to Intervenors’ Statement of
Uncontested Material Facts ................................................... JA 203
Dkt. No. 61-1
Iberville Objection Letter ...................................................... JA 210
Dkt. No. 67-3
Nix Campaign Webpage........................................................ JA 213
Dkt. No. 68-1
2010 Census Data .................................................................. JA 217
Dkt. No. 68-2
Second Declaration of Courtney M. Patterson ...................... JA 219
Dkt. No. 70
Memorandum Opinion on Motions for Summary
Judgment ................................................................................ JA 222
Dkt. No. 71
Order Granting Summary Judgment ..................................... JA 317
Dkt. No. 72
Notice of Appeal .................................................................... JA 319
Certificate of Service
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U.S. District Court
District of Columbia (Washington, DC)
CIVIL DOCKET FOR CASE #: 1:10-cv-00561-JDB
LAROQUE et al v. HOLDER
Assigned to: Judge John D. Bates
Case in other court: USCA, 10-05433
Cause: 42:1973 Voting Rights Act
Date Filed
04/07/2010
#
1
06/14/2010
11
08/18/2010
23
08/01/2011
52
08/01/2011
53
Date Filed: 04/07/2010
Jury Demand: None
Nature of Suit: 441 Voting
Jurisdiction: U.S. Government Defendant
Docket Text
COMPLAINT against ERIC H. HOLDER, JR ( Filing fee $ 350, receipt
number 4616028844) filed by KINSTON CITIZENS FOR NONPARTISAN VOTING, KLAY NORTHRUP, STEPHEN LAROQUE,
JOHN NIX, ANTHONY CUOMO, LEE RAYNOR. (Attachments: # 1
Civil Cover Sheet) (rdj) (Entered: 04/07/2010)
***
MOTION to Dismiss for Lack of Jurisdiction by ERIC H. HOLDER, JR
(Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Text of
Proposed Order)(McFarland, Ernest) (Entered: 06/14/2010)
***
MOTION for Summary Judgment , along with Supporting Memorandum
and Statement of Material Facts, by ANTHONY CUOMO, KINSTON
CITIZENS FOR NON-PARTISAN VOTING, STEPHEN LAROQUE,
JOHN NIX, KLAY NORTHRUP, LEE RAYNOR (Attachments: # 1 Text
of Proposed Order, # 2 Exhibit A - Nov. 2008 Lenoir Sample Ballot, # 3
Exhibit B - Nov. 2008 Lenoir Official Election Results, # 4 Exhibit C Kinston Newspaper Article, # 5 Exhibit D - Survey of N.C. Local Election
Practices, # 6 Exhibit E - DOJ Objection Letter, # 7 Exhibit F - Letter to
Editor by H. Greene, # 8 Exhibit G- Letter to Editor by S. LaRoque, # 9
Exhibit H - Referendum Results by Kinston Precinct, # 10 Exhibit I Racial Composition of Kinston Precincts, # 11 Declaration of Stephen
LaRoque, # 12 Declaration of Anthony Cuomo, # 13 Declaration of John
Nix, # 14 Declaration of Klay Northrup, # 15 Declaration of Lee
Raynor)(Carvin, Michael) (Entered: 08/18/2010)
***
MOTION to Dismiss for Lack of Jurisdiction along with Supporting
Memorandum by W. J. BEST, SR, A. OFFORD CARMICHAEL, JR,
WILLIAM A. COOKE, GEORGE GRAHAM, NORTH CAROLINA
STATE CONFERENCE OF BRANCHES OF THE NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
JULIAN PRIDGEN, JOSEPH M. TYSON (Attachments: # 1 Text of
Proposed Order Proposed Order)(Hebert, Joseph) (Entered: 08/01/2011)
RESPONSE re 23 MOTION for Summary Judgment , along with
Supporting Memorandum and Statement of Material Facts, filed by W. J.
BEST, SR, A. OFFORD CARMICHAEL, JR, WILLIAM A. COOKE,
GEORGE GRAHAM, NORTH CAROLINA STATE CONFERENCE OF
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08/01/2011
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08/15/2011
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08/25/2011
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12/09/2011
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BRANCHES OF THE NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE, JULIAN PRIDGEN,
JOSEPH M. TYSON. (Hebert, Joseph) Modified on 8/3/2011 to edit text
and create relationship (dr). (Entered: 08/01/2011)
Cross MOTION for Summary Judgment along with Supporting
Memorandum and Statement of Facts by W. J. BEST, SR, A. OFFORD
CARMICHAEL, JR, WILLIAM A. COOKE, GEORGE GRAHAM,
NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, JULIAN PRIDGEN, JOSEPH M. TYSON
(Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Declaration
Tyson Declaration, # 4 Declaration Graham Declaration, # 5 Declaration
Pridgen Declaration, # 6 Declaration Patterson Declaration, # 7 Declaration
Cooke Declaration, # 8 Declaration Lanier Declaration, # 9 Text of
Proposed Order Proposed Order)(Hebert, Joseph) (Entered: 08/01/2011)
Memorandum in opposition to re 23 MOTION for Summary Judgment ,
along with Supporting Memorandum and Statement of Material Facts, and
Defendant’s Cross Motion for Summary Judgment filed by ERIC H.
HOLDER, JR. (Attachments: # 1 Defendant’s Memorandum in Support of
Mot Summ J in US v Shelby, # 2 Defendant’s Reply in Support of Mot for
Summ J in US v Shelby, # 3 Defendant’s Supplemental Brief in Support of
Mot for Summ J in US v Shelby, # 4 Statement of Facts, # 5 Defendant’s
Response to Plaintiffs’ Statement of Facts, # 6 Exhibit 1 Berman
Declaration, # 7 Exhibit 2 Objection Letter, # 8 Exhibit 3 McCrary
Declaration, # 9 Proposed Order)(Dellheim, Richard) (Entered:
08/01/2011)
***
Memorandum in opposition to re 56 MOTION for Summary Judgment, 52
MOTION to Dismiss for Lack of Jurisdiction along with Supporting
Memorandum, 54 Cross MOTION for Summary Judgment along with
Supporting Memorandum and Statement of Facts , along with Plaintiffs’
Responses to Defendant’s and Intevernors’ Statements of Facts filed by
ANTHONY CUOMO, KINSTON CITIZENS FOR NON-PARTISAN
VOTING, STEPHEN LAROQUE, JOHN NIX, KLAY NORTHRUP.
(Attachments: # 1 Response to Defendant’s Statement of Facts, # 2
Response to Intervenors’ Statement of Facts)(Carvin, Michael) (Entered:
08/15/2011)
***
REPLY to opposition to motion re 56 MOTION for Summary Judgment
filed by ERIC H. HOLDER, JR. (Attachments: # 1 Exhibit Iberville Parish
Objection Letter)(Dellheim, Richard) (Entered: 08/25/2011)
***
MEMORANDUM by ANTHONY CUOMO, KINSTON CITIZENS FOR
NON-PARTISAN VOTING, STEPHEN LAROQUE, JOHN NIX, KLAY
NORTHRUP. (Attachments: # 1 Exhibit A - Nov. 2011 Lenoir Official
Election Results, # 2 Exhibit B - Kinston Newspaper Article, # 3 Exhibit C
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12/22/2011
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12/22/2011
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12/22/2011
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- Nix Campaign Webpage)(Carvin, Michael) (Entered: 12/09/2011)
MEMORANDUM re Order,, by W. J. BEST, SR, A. OFFORD
CARMICHAEL, JR, WILLIAM A. COOKE, GEORGE GRAHAM,
NORTH CAROLINA STATE CONFERENCE OF BRANCHES OF THE
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF
COLORED PEOPLE, JULIAN PRIDGEN, JOSEPH M. TYSON.
(Attachments: # 1 Exhibit 2010 Census Data, # 2 Declaration Second Decl.
Courtney M. Patterson)(Earls, Anita) (Entered: 12/13/2011)
***
MEMORANDUM OPINION. Signed by Judge John D. Bates on
12/22/2011. (lcjdb1) (Entered: 12/22/2011)
ORDER granting [55, 56] the Attorney General’s motion for summary
judgment and 54 the defendant-intervenors’ motion for summary judgment,
denying 23 plaintiffs’ motion for summary judgment, and denying as moot
52 defendant-intervenors’ motion to dismiss. See text of Order and
accompanying Memorandum Opinion for details. Signed by Judge John D.
Bates on 12/22/2011. (lcjdb1) (Entered: 12/22/2011)
NOTICE OF APPEAL as to 71 Order, 70 Memorandum & Opinion by
ANTHONY CUOMO, KINSTON CITIZENS FOR NON-PARTISAN
VOTING, STEPHEN LAROQUE, JOHN NIX, KLAY NORTHRUP.
Filing fee $ 455, receipt number 0090-2774253. Fee Status: Fee Paid.
Parties have been notified. (Scott, Michelle) (Entered: 12/22/2011)
***
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________
STEPHEN LAROQUE
2312 Hodges Road
Kinston, N.C. 28504,
)
)
)
)
ANTHONY CUOMO
)
802 Westminster Lane
)
Kinston, N.C. 28501,
)
)
JOHN NIX
)
3003 Hillman Road
)
Kinston, N.C. 28504,
)
)
KLAY NORTHRUP
)
3016 Johnson Street
)
Kinston, N.C. 28504,
)
)
LEE RAYNOR
)
710 Rountree
)
Kinston, N.C. 28501,
)
)
and
)
)
KINSTON CITIZENS FOR
)
NON-PARTISAN VOTING
)
2312 Hodges Road
)
Kinston, N.C. 28504,
)
)
Plaintiffs,
)
)
v.
)
)
ERIC H. HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES
)
U.S. Department of Justice
)
950 Pennsylvania Avenue, N.W.
)
Washington, D.C. 20530-0001,
)
)
Defendant.
)
__________________________________ )
Civ. No.:
COMPLAINT
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I. INTRODUCTION
1.
This is an action challenging the constitutionality of Section 5 of the Voting
Rights Act of 1965, as amended in 2006 (hereinafter “Section 5”). Plaintiffs are voters,
prospective candidates, and proponents of citizen referenda in the city of Kinston, North
Carolina, which has been covered by Section 5 pursuant to election data from
November 1964. Plaintiffs successfully sponsored and voted for a referendum that
would have amended the Kinston city charter to change from partisan to nonpartisan
local elections—specifically, to replace the current system where the only candidates for
election are the winners of party primaries and eligible unaffiliated candidates able to
gather sufficient signatures to gain access to the ballot, with a new system where any
candidate can run for election and the candidates are unaffiliated on the ballot with any
party. But Plaintiffs’ efforts, as well as the benefits they would have derived from
nonpartisan elections as voters and candidates, have been completely nullified because
the Attorney General denied preclearance under Section 5. They seek a declaration
that Section 5 is unconstitutional and an injunction against any application of that statute
to Kinston’s nonpartisan-elections referendum and other future voting changes.
II. THE PARTIES
2.
Plaintiff Stephen LaRoque is a registered voter and resident of Kinston,
North Carolina. He is a former state legislator and is involved in local politics. LaRoque
organized a successful petition drive (the "Petition Drive") to place a referendum on the
ballot for the November 2008 election that would change the method of local elections
from partisan to nonpartisan. The referendum won by a 64% margin and garnered a
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majority of votes in 5 of 7 of Kinston’s majority-black precincts. LaRoque intends to
offer additional positive changes to Kinston’s electoral system in the future.
3.
Plaintiff John Nix is a registered Republican voter and resident of Kinston
who voted for the referendum. Nix intends to run for election to the Kinston City Council
in November of 2011. He has a direct interest in doing so on a ballot where he is
unaffiliated with any party, against opponents similarly unaffiliated, and without the
preliminary need to either run in a party primary or obtain sufficient signatures to obtain
access to the ballot as a candidate.
4.
Plaintiff Klay Northrup is a registered unaffiliated voter and resident of
Kinston who voted for the referendum. Northrup intends to run for election to the
Kinston City Council in November of 2011. He has a direct interest in doing so on a
ballot where he is unaffiliated with any party, against opponents similarly unaffiliated,
and without the preliminary need to either run in a party primary or obtain sufficient
signatures to obtain access to the ballot as a candidate.
5.
Plaintiff Lee Raynor is a registered voter and resident of Kinston. She is
involved in local politics, helped organize and run the Petition Drive, and voted for the
referendum.
6.
Plaintiff Anthony Cuomo is a registered voter and resident of Kinston. He
is involved in local politics, helped collect signatures for the Petition Drive, and voted for
the referendum.
7.
Plaintiff Kinston Citizens for Non-Partisan Voting (“KCNV”) is an
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unincorporated membership association dedicated to eliminating the use of partisan
affiliation in Kinston municipal elections. Its members consist of Kinston registered
voters who have joined the association because they agree with its objectives and its
means for achieving them. These members include Kinston voters who supported and
voted for the nonpartisan-elections referendum and prospective candidates for Kinston
municipal elections who have a direct interest in running in nonpartisan elections.
Plaintiffs LaRoque, Nix, Northrup, Raynor, and Cuomo are all members of Plaintiff
KCNV.
8.
Defendant Eric Holder is sued in his official capacity as the Attorney
General of the United States. The Attorney General heads the United States
Department of Justice, which is the department in the executive branch of the United
States that enforces the Voting Rights Act generally, and Section 5 of the Voting Rights
Act in particular.
III. JURISDICTION AND VENUE
9.
This court has jurisdiction and venue pursuant to 28 U.S.C. §§ 1331, 1343
and 42 U.S.C. § 1973l(b).
IV. THREE-JUDGE PANEL
10.
Pursuant to 28 U.S.C. §§ 291(b), 2284 and 42 U.S.C. § 1973c(a),
Plaintiffs request appointment of a three-judge panel to hear and resolve this Complaint.
V. BACKGROUND
11.
Kinston is a municipality located in Lenoir County, North Carolina. Lenoir
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County is covered by Section 5.
12.
Kinston conducts periodic elections for mayor and city council, and these
elections are conducted in compliance with the Voting Rights Act, including the
preclearance provisions of Section 5.
13.
Currently, only 8 of 551 localities in North Carolina hold partisan local
elections.
14.
In March 2008, Plaintiff LaRoque began to collect signatures on petitions
to call for a referendum to amend the charter of the city of Kinston to provide for
nonpartisan elections of the mayor and city council. By July 2008, he and Plaintiffs
Raynor and Cuomo had collected more than the 1424 signatures required to place the
issue on the November 2008 ballot. In August, Plaintiff LaRoque submitted the petition
signatures to the Lenoir County Board of Elections and, subsequently, to the Kinston
City Council. As required by North Carolina General Statutes §160A-104, the City
Council voted to place the referendum on the ballot for the November, 2008 election.
15.
Kinston voters approved the referendum by almost a 2 to 1 margin (64%),
and the referendum passed in 5 of the 7 precincts where blacks were a majority of
voters.
16.
Since Kinston is a political subdivision of Lenoir County, which is covered
by Section 5, Kinston submitted the change to nonpartisan elections to Defendant
Holder, the Attorney General, for preclearance.
17.
No voting change from Kinston or Lenoir County had previously ever been
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denied preclearance under Section 5. There has also never been a finding that Kinston
engaged in discriminatory practices in voting.
18.
The Acting Assistant Attorney General for the Civil Rights Division, Loretta
King, exercising delegated authority from the Attorney General, objected to the change
in a letter dated August 17, 2009.
19.
The stated reason for the objection was that the “elimination of party
affiliation on the ballot will likely reduce the ability of blacks to elect candidates of
choice,” in a city where, according to the objection letter, blacks constitute a least 62.6%
of the total population (66.6% based on current estimates), 58.8% of the voting age
population and 64.6% of registered voters. Objection Letter, pp. 1-2. The objection
letter contended that the change had a discriminatory racial effect because, “while the
motivating factor for this change may be partisan,” “statistical analysis supports the
conclusion that given a change to a nonpartisan election, black preferred candidates will
receive fewer white cross-over votes” because nonpartisan elections will not allow
“either [an] appeal to [Democratic] party loyalty or the ability to vote a straight ticket” for
all Democratic candidates. Id. at 2. Accordingly, since all “black-preferred candidates”
were Democratic and “given that the city’s electorate is overwhelmingly Democratic,”
Section 5 prohibited any change which would likely diminish “cohesive support” for
Democratic candidates of any race. Id.
20.
The Justice Department does not seek and has not sought to apply
Section 5’s protections to nonminority voters, and has never denied preclearance to a
voting change in any jurisdiction on the ground that it diminishes the electoral power or
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chances of success of nonminority voters on the basis of their race.
21.
In July 2006, Congress reauthorized Section 5, extending it for twenty-five
years (until 2031). It relied on generalized findings which do not specifically identify
evidence of continuing intentional discrimination in covered jurisdictions. Nor did it have
evidence that adequately distinguished conditions in covered jurisdictions from those in
non-covered jurisdictions in a way that would justify the continuing difference in
treatment for another twenty-five years.
22.
The conditions of 1964 that caused Lenoir County to be covered by
Section 5 have long been remedied. Lenoir County had 72% voter turnout for the
November 2008 election, and 67% of its population is registered to vote. Nonetheless,
under the 2006 reenactment coverage formula, Lenoir County is a covered jurisdiction
and will continue to be covered until 2031. Congress’ determination that Lenoir County
should continue to be covered was based upon data that is more than 45 years old and
fails to account for current political conditions. There has never been any analysis of
the conditions in the City of Kinston, where black citizens constitute a super-majority of
the population and registered voters.
23.
Section 5 requires covered jurisdictions and any political subdivisions
contained therein to seek preclearance for any changes in voting practices or
procedures. The preclearance process is costly and burdensome and requires
unnecessary and disruptive delays. It also deprives local jurisdictions of essential
attributes of self-governance, including jurisdictions, like Kinston, where minority citizens
predominate, and even with respect to measures, like the nonpartisan election
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referendum, that are apparently supported by a majority of minority voters.
24.
In 2006, Congress did not simply extend Section 5’s substantive mandate
on covered jurisdictions. It significantly expanded the substantive standards to coerce
jurisdictions to maintain and adopt race-based electoral schemes that prefer certain
groups.
25.
First, Congress expanded the prohibition against voting changes with the
purpose or effect of “denying or abridging the right to vote,” 42 U.S.C. 1973c(a)
(emphasis added), to also prohibit changes with the purpose or effect of “diminishing
the ability of any citizens . . . to elect their preferred candidates of choice,” id. § 1973c(b)
(emphasis added). The Justice Department and the 2006 Congress interpret Section 5
to protect only “members of a racial or language minority group.” See 28 C.F.R. §
51.54(a); see also Pub. L. No. 109-246, § 2(b)(9) (“racial and language minority
citizens”). This 2006 amendment thus established a floor for minority electoral success
in all covered jurisdictions until 2031, regardless of whether minorities in those
jurisdictions have an equal opportunity to elect their preferred candidates or to
participate in the political process under the voting change, and regardless of whether
there are compelling reasons supporting the voting change.
26.
Second, Congress authorized the Attorney General to require
enhancement of minority-preferred candidates’ electoral success by authorizing Section
5 objections not only to changes with a retrogressive purpose, but also to those which
the Attorney General deems to have been motivated by “any discriminatory purpose.”
42 U.S.C. § 1973c(c) (emphasis added). Particularly given the Justice Department’s
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Section 5 enforcement record concerning changes that do not increase minoritypreferred candidates’ success to the maximum practicable extent, this expansion of
Section 5’s scope constitutes at least an implicit command for covered jurisdictions to
engage in race-based voting practices and procedures.
27.
But for Section 5’s presumptive invalidation of the change to nonpartisan
elections and the Attorney General’s refusal to eliminate that barrier by preclearing the
change, Kinston would now have such nonpartisan elections.
28.
Section 5’s perpetuation of the partisan election scheme fundamentally
alters the competitive environment in which Plaintiffs Nix and Northrup will run. It
directly increases the burdens and costs for candidates like Nix and Northrup to be
placed on the ballot. Compare, e.g., N.C. Gen. Stat. §§ 163-292, 163-294.2 (allowing
any putative candidate to run in a nonpartisan election), with, e.g., id. § 163-106, 163111, 163-122, 163-291, 163-296 (requiring putative candidates in a partisan election to
obtain either 40% of the vote in a party primary or signatures from 4% of all registered
voters). Moreover, Section 5’s perpetuation of the partisan election scheme forces
candidates like Nix and Northrup to associate with a political party or disassociate from
all of them, thus burdening their freedom of political association. It also forces them to
anticipate and respond to a broader range of competitive tactics and issues than
otherwise would be necessary. In addition, it substantially harms their chances for
election by, among other things, making party affiliation a factor in voter’s choices.
29.
The denial of Section 5 preclearance has completely nullified all of
Plaintiffs’ efforts in support of the referendum. It has also nullified and infringed their
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right under North Carolina law to participate in the electoral, political and law-making
process through citizen referenda. Moreover, the partisan election scheme perpetuated
by Section 5 will, relative to nonpartisan elections, impose additional burdens and costs
on candidates they support in running for, and being elected to, the relevant local
offices. Partisan primaries and general elections also burden their right to politically
associate, or refrain from associating, with others.
30.
Section 5, particularly as implemented by the Attorney General, denies
Plaintiffs equal, race-neutral treatment, and an equal opportunity to political and
electoral participation, by subjecting them to a racial classification and by intentionally
providing minority voters and their preferred candidates a preferential advantage in
elections.
31.
Section 5 poses immediate or threatened injury to members of Plaintiff
KCNV who would have standing to challenge Section 5 in their own right, including
Plaintiffs LaRoque, Nix, Northrup, Raynor, and Cuomo. And Plaintiff KCNV’s purpose
of eliminating partisan municipal elections in Kinston is germane to those interests that
give its members standing to sue. Neither the claim asserted by Plaintiff KCNV nor the
relief requested require the participation of KCNV’s members.
VI. CLAIMS
Claim I
32.
Plaintiffs incorporate paragraphs 1-31 of this complaint.
33.
Section 5 exceeds Congress’ powers because it is not appropriate
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legislation to enforce either the Fourteenth Amendment or the Fifteenth Amendment.
34.
Section 5, as amended and extended in 2006, is not a rational, congruent
or proportional means to enforce the Fourteenth and Fifteenth Amendment’s
nondiscrimination requirements and, in fact, undermines and violates those
nondiscrimination guarantees. This is so because, among other reasons, there is no
continuing justification for Section 5’s extraordinary burdens on and denials of local selfgovernance; there is no persuasive or even rational reason for selectively visiting those
burdens on certain jurisdictions based on electoral results from many decades ago;
there is no rational or sufficient reason for imposing on covered jurisdictions alone raceconscious requirements in tension with the Constitution and Section 2 of the Voting
Rights Act; a continuation of Section 5 until today and 2031 is completely out of
proportion to any legitimate, remedial or preventive objective; making Section 5’s
substantive requirements more onerous in 2006 than they were in 1965 is irrational and
not congruent or proportional; and the more onerous 2006 standards do not broadly
enforce the nondiscrimination guarantees of the Fourteenth and Fifteenth Amendments,
but instead require actions that undermine and violate those Amendments.
Claim II
35.
Plaintiffs incorporate paragraphs 1-34 of this complaint.
36.
Section 5, as amended in 2006, which authorizes denial of preclearance
to changes which improve (or do not diminish) minority voting strength and which also
affirmatively prohibits all changes which diminish the ability of select minority groups to
elect their preferred candidates, violates the nondiscrimination requirements of the Fifth,
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Fourteenth and Fifteenth Amendments, particularly as enforced by the Attorney
General.
37.
At a minimum, Section 5, as amended in 2006, is presumptively
unconstitutional and requires the most searching judicial scrutiny, which it cannot
survive.
VII.
REQUEST FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court enter a judgment for
the Plaintiffs
(1) declaring that Section 5 unconstitutionally exceeds Congressional authority;
(2) declaring that the Section 5, as amended in 2006, violates the Fifth,
Fourteenth and Fifteenth Amendments to the U.S. Constitution, particularly as applied
by the Attorney General, both generally and in his specific refusal to permit Kinston’s
change to nonpartisan elections;
(3) enjoining the Attorney General from enforcing Section 5 against Kinston’s
change to nonpartisan elections;
(4) enjoining any enforcement of Section 5 against Kinston in the future; and
(5) any other relief the Court deems just and proper.
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Respectfully submitted,
/s/ Michael A. Carvin
____________________________
Michael A. Carvin
D.C. Bar No. 366784
Noel J. Francisco
D.C. Bar No. 464752
Hashim M. Mooppan
D.C. Bar No. 981758
David J. Strandness
D.C. Bar No. 987194
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001-2113
(202) 879-3939
/s/ Michael E. Rosman
_____________________
Michael E. Rosman
D.C. Bar No. 454002
Michelle A. Scott
D.C. Bar No. 489097
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington, DC 20036
(202) 833-8400
Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, LEE
RAYNOR, and KINSTON CITIZENS FOR
NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant.
_______________________________________
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Civ. No.: 1:10-CV-00561-JDB
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
[ORAL ARGUMENT REQUESTED]
Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, Plaintiffs Stephen LaRoque,
Anthony Cuomo, John Nix, Klay Northrup, Lee Raynor, and Kinston Citizens for Non-Partisan Voting
(“Plaintiffs”) respectfully move this Court for entry of an Order granting summary judgment to Plaintiffs
on the entirety of the claims in their complaint. Specifically, Plaintiffs move for summary judgment on:
(1) their claim that Section 5 of the Voting Rights Act of 1965, as reauthorized and amended in 2006, see
42 U.S.C. § 1973c (“Section 5”), unconstitutionally exceeds Congress’ authority to enforce the
Reconstruction Amendments to the Constitution; and (2) their claim that Section 5 violates the equal
protection guarantees of the Fifth and Fourteenth Amendments to the Constitution.
In support of this Motion, Plaintiffs are filing herewith a Memorandum of Points and Authorities
and a Statement of Material Facts, as well as attaching nine supporting Exhibits, five Declarations by the
individual plaintiffs, and a Proposed Order. Plaintiff also request oral argument on this Motion.
For the reasons provided in the supporting Memorandum, Plaintiffs contend that there is no
genuine disputed issue as to any material fact and that they are entitled to judgment as a matter of law on
both constitutional claims. Consequently, Plaintiffs respectfully pray that this Court grant summary
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judgment to Plaintiffs, declare that the 2006 extension and expansion of Section 5 was unconstitutional,
and enjoin the Attorney General from enforcing Section 5.
August 18, 2010
Respectfully submitted,
/s/ Michael A. Carvin
_______________________________________
Michael A. Carvin (D.C. Bar No. 366784)
Noel J. Francisco (D.C. Bar No. 464752)
Hashim M. Mooppan (D.C. Bar No. 981758)
David J. Strandness (D.C. Bar No. 987194)
JONES DAY
51 Louisiana Ave. NW
Washington D.C. 20001
(202) 879-3939
Michael E. Rosman (D.C. Bar No. 454002)
Michelle A. Scott (D.C. Bar No. 489097)
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington D.C. 20036
(202) 833-8400
Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, LEE
RAYNOR, and KINSTON CITIZENS FOR
NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant.
_______________________________________
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Civ. No.: 1:10-CV-00561-JDB
STATEMENT OF MATERIAL FACTS IN SUPPORT OF
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Plaintiffs submit the
following statement of material facts as to which they contend there is no genuine disputed issue.
Material Facts About Kinston’s Nonpartisan-Elections Referendum
1.
In November of 2008, voters in the City of Kinston, North Carolina, adopted a
referendum that would have amended the city charter to provide for nonpartisan municipal elections. See
North Carolina State Board of Elections, Sample Ballot, Lenoir County, North Carolina, Nov. 4, 2008,
www.sboe.state.nc.us/getdocument.aspx?ID=782 (last visited Aug. 13, 2010) (Exhibit A); Lenoir County
Board of Elections, 2008 General Election, Official Results, City of Kinston Charter Amendment,
http://results.enr.clarityelections.com/NC/Lenoir/7991/14086/en/summary.html (last visited Aug. 13,
2010) (Exhibit B); Chris Lavender, Kinston OK’s Nonpartisan Vote, Kinston Free Press, Nov. 5, 2008,
http://www.kinston.com/common/printer/view.php?db=kfpress&id=50795 (last visited Aug. 13, 2010)
(Exhibit C).
2.
Nonpartisan elections are used by 532 out of 541 cities in North Carolina. See Robert P.
Joyce, Elections, 2007, at 4, in County and Municipal Government in North Carolina (David M.
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Lawrence ed., UNC-Chapel Hill Sch. of Gov., 2007), http://www.sog.unc.edu/pubs/cmg/ (last visited
Aug. 13, 2010) (Exhibit D).
3.
The Kinston referendum received roughly 64% of the vote. See Exhibit B.
4.
Kinston’s electorate is “overwhelmingly Democratic.” See Letter from Loretta King,
Acting Assistant Attorney General, Civil Rights Division, U.S. Dep’t of Justice, to James P. Cauley III,
Kinston City Attorney at 2 (Aug. 17, 2009), http://www.justice.gov/crt/voting/sec_5/pdfs/1_081709.pdf
(last visited Aug. 13, 2010) (Exhibit E).
5.
Proponents of the referendum argued that a nonpartisan elections would open the political
system to a broader range of views. See Hilary Greene, Letter to the Editor, Nonpartisan Elections In
Kinston Will Help City Be Progressive, Kinston Free Press, Oct. 24, 2008, http://www.kinston.com/
common/printer/view.php?db=kfpress&id=50544 (last visited Aug. 13, 2010) (Exhibit F); Stephen
LaRoque, Letter to the Editor, Sign Bipartisan Petition on Election Day, Kinston Free Press, May 3,
2008, http://www.kinston.com/common/printer/view.php?db=kfpress&id=46233 (last visited Aug. 13,
2010) (Exhibit G).
6.
Blacks constituted approximately 64.6% of Kinston’s registered voters at the time of the
referendum. Exhibit E at 1.
7.
The referendum passed in 5 of the 7 precincts in Kinston where blacks were a majority of
voters. See Lenoir County Board of Elections, 2008 General Election, Official Results, Detail XLS,
Precinct Level Details For Election Results, at Sheet 41, http://results.enr.clarityelections.com/NC/Lenoir/
7991/14086/en/reports.html (last visited Aug. 13, 2010) (Exhibit H); Facsimile from Lenoir County
Board of Elections to Michelle Scott, Associate Counsel, Center for Individual Rights (Aug. 12, 2010)
(containing VR Statistics by Precinct) (Exhibit I).
8.
The Justice Department denied preclearance for Kinston’s nonpartisan-elections
referendum in a letter dated August 17, 2009. See Exhibit E.
9.
The Justice Department’s sole basis for objecting was “that the elimination of party
affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.” Id. at 2.
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It reasoned that, “given a change [to] non-partisan elections, black preferred candidates
will receive fewer white cross-over votes,” because they could no longer depend on “either [an] appeal to
[Democratic] party loyalty or the ability [of Democratic voters] to vote a straight [party-line] ticket.” Id.
Material Facts About Section 5’s Legislative Record
11.
The legislative record reveals that, when Congress originally enacted Section 5 as part of
the Voting Rights Act of 1965, “unconstitutional discrimination was rampant” in covered jurisdictions.
See Nw. Austin Municipal Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2511 (2009).
12.
The legislative record reveals that, in 1965, the average registration rate for black voters
was only 29.3% in the seven original covered jurisdictions. S. Rep. No. 109-295, at 26 (2006) (views of
Sen. Cornyn & Coburn).
13.
The legislative record reveals that, in 1965, “registration of voting-age whites ran roughly
50 percentage points or more ahead of [black registration]” in several covered States. See Nw. Austin,
129 S. Ct. at 2525 (Thomas, J., concurring in the judgment in part and dissenting in part).
14.
The legislative record reveals that, in North Carolina in 1965, 46.8% of eligible non-
whites were registered to vote, whereas 96.8% of whites were registered. See 2 Voting Rights Act:
Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H. Comm. on the
Judiciary, 109th Cong. (2006) (“Evidence of Continued Need”) at 2355 (submitting Edward Blum, An
Assessment of Voting Rights Progress in North Carolina (American Enterprise Institute, 2006) (“AEI
N.C.”) at 4).
15.
The legislative record reveals that, when Congress extended and expanded Section 5 in
2006, “[b]latantly discriminatory evasions of federal decrees [had become] rare.” See Nw. Austin, 129 S.
Ct. at 2511.
16.
The legislative record reveals that, in 2004, the voter registration rate among blacks in
covered jurisdictions was over 68.1%, S. Rep. No. 109-295, at 26 (views of Sen. Cornyn & Coburn), and
“[v]oter turnout and registration rates [between blacks and whites in covered jurisdictions] …
approach[ed] parity,” see Nw. Austin, 129 S. Ct. at 2511; see also H.R. Rep. No. 109-478, at 12-13
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(2006).
17.
The legislative record reveals that in five covered States, registration and turnout was
higher for blacks than whites in 2004, and in Louisiana and South Carolina, the gap between black and
white voters was lower than the national average. S. Rep. No. 109-295, at 11.
18.
The legislative record reveals that in North Carolina in 2004, black registration was
higher than white registration (70.4% versus 69.4%), and black turnout was higher than white turnout
(63.1% versus 58.1%). Id.
19.
The legislative record reveals that “minority candidates [now] hold office at
unprecedented levels.” See Nw. Austin, 129 S. Ct. at 2511.
20.
The legislative record reveals that, in the originally covered States, the number of
minorities serving in elected office has increased over 1,000% since 1965. See H.R. Rep. No. 109-478, at
18.
21.
The legislative record reveals that, while there were only 40 black elected officials in
North Carolina in 1969, the State elected almost 500 black officers in 2001. See 2 Evidence of Continued
Need at 2374 (submitting AEI N.C. at 23).
22.
The legislative record reveals that only 753 objections nationwide were interposed
between 1982 and 2005. H.R. Rep. No. 109-478, at 22.
23.
The legislative record reveals that these 753 objections amount to only .70% of the total
number of submissions filed. See Understanding the Benefits & Costs of Section 5 Pre-Clearance,
Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (“Benefits & Costs”) at 159
(submission of Edward Blum & Lauren Campbell, Assessment of Voting Rights Progress in Jurisdictions
Covered Under Section Five of the Voting Rights Act (American Enterprise Institute, 2006) (“AEI C.J.”)
at 10).
24.
The legislative record reveals that many of these objections were based on interpretations
of Section 5 that were subsequently rejected by the Supreme Court. S. Rep. No. 109-295, at 28 (views of
Sen. Cornyn & Coburn).
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The legislative record reveals that the rate of objections has dramatically decreased. Id.
at 27-28.
26.
The legislative record reveals that the objection rate for submissions filed between 1965
and 1970 was over 25 times higher than the objection rate for submissions filed between 1996 and 2005.
See Benefits & Costs at 159 (submission of AEI C.J. at 10).
27.
The legislative record reveals that the absolute number of objections has diminished over
the past three decades. S. Rep. No. 109-295, at 27 (views of Sen. Cornyn & Coburn).
28.
The legislative record reveals that, nationwide, 399 objections were interposed during the
1980’s, 366 during the 1990’s, and only 44 during the 2000’s. In North Carolina, 34 objections were
interposed during the 1980’s, 13 during the 1990’s, and only 4 during the 2000’s. H.R. Rep. No. 109478, at 22; U.S. Dep’t of Justice, Civil Rights Division, Section 5 Objection Determinations,
http://www.justice.gov/crt/voting/sec_5/obj_activ.php.
29.
The legislative record reveals only six published cases between 1982 and 2006 that ended
in a court ruling or consent decree finding that a covered jurisdiction had committed unconstitutional
discrimination against minority voters, and an equal number of cases involving such discrimination
against white voters. S. Rep. No. 109-295, at 13, 65-68.
30.
The legislative record reveals that, if Section 5 coverage in 2006 had been based on an
application of the Section 5 coverage formula to data from the elections in 2000 and 2004, all of the
States previously covered in full would no longer be covered and Hawaii would be the only state entirely
covered. See 152 Cong. Rec. H5179 (daily ed. July 13, 2006) (Rep. Norwood).
31.
The legislative record reveals that, if Section 5 coverage in 2006 had been based on an
application of the Section 5 coverage formula to data from the elections in 2000 and 2004, a substantially
different set of counties and townships would be covered (and not covered). See S. Rep. No. 109-295, at
33, 36-53 (views of Sen. Cornyn & Coburn).
32.
The legislative record “suggests that there is more similarity than difference” between
covered and non-covered jurisdictions. Nw. Austin, 129 S. Ct. at 2512.
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The legislative record reveals that, in 2004, the black registration rate was actually higher
in covered jurisdictions than non-covered jurisdictions (68.1% versus 62.2%). S. Rep. No. 109-295, at 26
(views of Sen. Cornyn & Coburn).
34.
The legislative record reveals that, in 2004, the average black turnout rates were identical
in covered and non-covered jurisdictions (60%). Id.
35.
The legislative record reveals that, in North Carolina in 2004, black registration was
higher than the national average (70.4% versus 64.3.%). Id. at 11 (Report).
36.
The legislative record reveals that, in North Carolina in 2004, black turnout was higher
than the national average (63.1% versus 56.1%). Id.
37.
The legislative record reveals that, in 2004, “the racial gap in voter registration and
turnout [was] lower in the States originally covered by § 5 than it is nationwide.” See Nw. Austin, 129 S.
Ct. at 2512 (citing AEI C.J. at 3-6).
38.
The legislative record reveals that, in North Carolina in 2004, black registration rates
were 1% higher than white registration rates, whereas, nationwide, whites registered at a rate 3.6% higher
than blacks. S. Rep. No. 109-295, at 11.
39.
The legislative record reveals that, in North Carolina in 2004, black turnout was 5%
higher than white turnout in North Carolina, whereas, nationwide, whites voted at a rate 4.2% higher than
blacks. Id.
40.
The legislative record reveals that the percentage of black elected officials was higher in
covered States than in non-covered States in 2000, even when the former’s higher black population was
taken into consideration. See Benefits & Costs at 153, 157 (submission of AEI C.J. at 4, 8).
41.
The legislative record reveals that, in North Carolina, blacks were 20% of the voting
population and held 8.56% of elected offices in 2000. In contrast, blacks were 11.4% of the voting
population nationwide and held only 1.76% of elected offices. Id. at 157 (submission of AEI C.J. at 8).
42.
The legislative record reveals there were slightly more Section 2 cases with judicial
findings of liability in non-covered jurisdictions compared to covered jurisdictions between 1982 and
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2006 (40 versus 39), and an identical number of Section 2 cases finding unconstitutional discrimination
against minority voters (6 versus 6). S. Rep. No. 109-295, at 13, 65, 76. And this was so, even though
the legislative record reveals that blacks disproportionately live in covered jurisdictions.
See The
Continuing Need for Section 5 Pre-Clearance, Hearing Before the S. Comm. on the Judiciary, 109th
Cong. (2006) at 157 n.1 (submission of Ronald Keith Gaddie).
43.
The legislative record reveals only two reported cases in North Carolina, between 1982
and 2006, finding violations of Section 2. Both originated in non-covered counties. See S. Rep. No. 109295, at 80; see also Ellen Katz & The Voting Rights Initiative, VRI Database Master List (2006),
http://sitemaker.umich.edu/votingrights/files/masterlist.xls (last visited Aug. 13, 2006).
44.
The legislative record reveals that, between 1982 and 2005, there were more Section 2
cases finding legally significant levels of racially polarized voting in non-covered jurisdictions (47) than
in covered ones (44). See 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. (2005) at 981
(submitting Ellen Katz et al., Documenting Discrimination in Voting: Judicial Findings Under Section 2
of the Voting Rights Act Since 1982 (Voting Rights Initiative, Univ. of Mich. Law Sch., 2005) at 15).
August 18, 2010
Respectfully submitted,
/s/ Michael A. Carvin
_______________________________________
Michael A. Carvin (D.C. Bar No. 366784)
Noel J. Francisco (D.C. Bar No. 464752)
Hashim M. Mooppan (D.C. Bar No. 981758)
David J. Strandness (D.C. Bar No. 987194)
JONES DAY
51 Louisiana Ave. NW
Washington D.C. 20001
(202) 879-3939
Michael E. Rosman (D.C. Bar No. 454002)
Michelle A. Scott (D.C. Bar No. 489097)
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington D.C. 20036
(202) 833-8400
Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, LEE
RAYNOR, and KINSTON CITIZENS FOR
NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant.
_______________________________________
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Civ. No.: 1:10-CV-00561-JDB
EXHIBIT E: LETTER FROM LORETTA KING, ACTING ASSISTANT ATTORNEY
GENERAL, CIVIL RIGHTS DIVISION, U.S. DEP’T OF JUSTICE,
TO JAMES P. CAULEY III, KINSTON CITY ATTORNEY (AUG. 17, 2009)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
___________________________________________
)
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Plaintiffs,
)
)
v.
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ERIC HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES,
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Defendant.
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and
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JOSEPH M. TYSON, et al.,
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Defendant-Intervenors
)
______________________________________________)
STEPHEN LAROQUE, ANTHONY
CUOMO, JOHN NIX, KLAY
NORTHROP, LEE RAYNOR, and
KINSTON CITIZENS FOR NONPARTISAN VOTING,
Civil Action No.:
1:10-CV-561-JDB
DEFENDANT-INTERVENORS’ RENEWED MOTION TO DISMISS
Defendant-Intervenors Joseph M. Tyson, W.J. Best, Sr., A. Offord Carmichael, Jr.,
George Graham, Julian Pridgen, William A. Cooke and the North Carolina State
Conference of Branches of the National Association for the Advancement of Colored People
respectfully renew their motion to this Court to dismiss the second count of Plaintiffs’
complaint because Plaintiffs lack standing to bring that particular challenge.
The grounds for the motion are more fully set forth in memorandum of law filed
today with this motion in accordance with Local Rule 7.1(a). Additionally, a proposed order
pursuant to Local Rule 7.1(c) is attached.
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WHEREFORE, Defendant-Intervenors respectfully request that their motion to
dismiss be granted.
This 1st day of August, 2011.
Respectfully submitted,
____/s/ J. Gerald Hebert_______
J. Gerald Hebert
D.C. Bar #447676
Attorney at Law
191 Somerville Street, #405
Alexandria, VA 22304
Telephone: 703-628-4673
E-mail: hebert@voterlaw.com
Anita S. Earls
D.C. Bar #473453
N.C. Bar #15597
Allison J. Riggs
N.C. Bar #40028
Southern Coalition for Social Justice
115 Market Street, Ste. 470
Durham, North Carolina 27701
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
E-mail: anita@southerncoalition.org
allison@southerncoalition.org
Laughlin McDonald
American Civil Liberties Union
Foundations, Inc.
230 Peachtree Street, NW
Suite 1440
Atlanta, GA 30303-1227
Telephone: 404-523-2721
Facsimile: 404-653-0331
E-mail: lmcdonald@aclu.org
Arthur Barry Spitzer
American Civil Liberties Union
1400 20th Street, NW, Ste. 119
Washington, D.C. 20036
Telephone: 202-457-0800 x113
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Email: artspitzer@aol.com
Attorneys for Defendant-Intervenors
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
___________________________________________
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
ERIC HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES,
)
)
Defendant.
)
)
and
)
)
JOSEPH M. TYSON, et al.,
)
)
Defendant-Intervenors
)
______________________________________________)
STEPHEN LAROQUE, ANTHONY
CUOMO, JOHN NIX, KLAY
NORTHROP, LEE RAYNOR, and
KINSTON CITIZENS FOR NONPARTISAN VOTING,
Civil Action No.:
1:10-CV-561-JDB
DEFENDANT-INTERVENORS’ RESPONSE TO PLAINTIFFS’ STATEMENT OF
MATERIAL FACTS
Pursuant to Fed. R. Civ. P. 56 and Local Civil Rule 7.1(h), Defendant-Intervenors
Joseph M. Tyson, W.J. Best, Sr., A. Offord Carmichael, Jr., George Graham, Julian
Pridgen, William A. Cooke and the North Carolina State Conference of Branches of the
National Association for the Advancement of Colored People file the following response to
Plaintiffs’ Statement of Material Facts submitted in support of their Motion for Summary
Judgment [Doc. 23]. Defendant-Intervenors do not address or concede the legal relevance
or probativeness, as to the constitutional issues presented in this case, of the assertions
contained in Plaintiffs’ Statement of Material Facts.
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¶1. In November of 2008, voters in the City of Kinston, North Carolina, adopted a
referendum that would have amended the city charter to provide for nonpartisan municipal
elections.
RESPONSE: Not disputed.
¶2. Nonpartisan elections are used by 532 out of the 541 cities in North Carolina.
RESPONSE: Not disputed, but Defendant-Intervenors note that two of the cities
that still use partisan elections, Charlotte and Winston-Salem, are two of the largest cities
in the state, together encompassing a tenth of the state’s population. Thus, the number of
cities using one method or the other is not indicative of the number of citizens who still
participate in partisan municipal elections. See Robert P. Joyce, Elections, 2007, at 4, in
County and Municipal Government in North Carolina (David M. Lawrence, ed., UNCChapel Hill Sch. of Gov., 2007), http::www.sog.unc.edu/pubs/cmg/ (Plaintiffs’ Exhibit D).
¶3. The Kinston referendum received roughly 64% of the vote.
RESPONSE: The referendum received 63.84%, or 4977 of the 7796 votes cast.
¶4. Kinston’s electorate is “overwhelmingly Democratic.”
RESPONSE: Not disputed.
¶5. Proponents of the referendum argued that a nonpartisan elections would open
the political system to a broader range of views.
RESPONSE: Defendant-Intervenors do not dispute that proponents of the
referendum wrote the letters to the editor submitted as Exhibits F and G in support of
Plaintiffs’ Motion for Summary Judgment.
¶6. Blacks constituted approximately 64.6% of Kinston’s registered voters at the
time of the referendum.
RESPONSE: Not disputed.
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¶7. The referendum passed in 5 of the 7 precincts in Kinston where blacks were a
majority of voters.
RESPONSE: Defendant-Intervenors dispute that this can in any way be used as the
basis of an inference that Black voters cohesively supported the referendum. In 2 of the 5
precincts where Black voters constituted a majority of registered voters and the referendum
passed, Black voters constituted only a bare majority of registered voters (Kinston 3
precinct, where Black voters constituted 56.81% of registered voters in 2009, and Kinston 5
precinct, where Black voters constituted 51.32% of registered voters in 2009) (see Plaintiffs
Exhibit I). Moreover, in the 5 majority Black registration precincts where the referendum
passed, turnout was extremely low. (Kinston 1 precinct turnout rate was 30.74%, Kinston 2
precinct turnout rate was 44.22%, Kinston 3 precinct turnout rate was 50.73%, Kinston 5
precinct turnout rate was 39.78%, Kinston 6 precinct turnout rate was 36.64%) (see
Plaintiffs Exhibit H). Finally, in 3 out of the 5 majority Black registration precincts where
the referendum passed, the number of White registered voters either exceeded the number
of votes cast in favor of the referendum or was nearly that high. (Kinston 3 precinct had
558 White registered voters and cast 444 votes in favor of the referendum; Kinston 5
precinct had 653 White registered voters and cast 489 votes in favor of the referendum;
Kinston 7 precinct had 345 White registered voters and cast 403 votes in favor of the
referendum.) (see Plaintiffs Exhibits H and I).
¶8. The Justice Department denied preclearance for Kinston’s nonpartisan-electiosn
referendum in a letter dated August 17, 2009.
RESPONSE: Not disputed.
¶9. The Justice Department’s sole basis for objecting was “that the elimination of
party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of
choice.”
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RESPONSE: The letter of objection dated August 17, 2009, in which the Justice
Department sets forth the bases for the objection to the proposed change to nonpartisan
elections, speaks for itself.
¶10. It reasoned that, “given a change [to] non-partisan elections, black preferred
candidates will receive fewer white cross-over votes,” because they could no longer depend
on ‘either [an] appeal to [Democratic] party loyalty or the ability [of Democratic voters] to
vote a straight [party-line] ticket.”
RESPONSE: The letter of objection dated August 17, 2009, in which the Justice
Department sets forth the bases for the objection to the proposed change to nonpartisan
elections, speaks for itself.
¶11. The legislative record reveals that, when Congress originally enacted Section 5
as part of the Voting Rights Act of 1965, “unconstitutional discrimination was rampant” in
covered jurisdictions.
RESPONSE: Not disputed.
¶12. The legislative record reveals that, in 1965, the average registration rate for
black voters was only 29.3% in the seven original covered jurisdictions.
RESPONSE: Not disputed.
¶13. The legislative record reveals that, in 1965, “registration of voting-age whites
range roughly 50 percentage points or more ahead of [black registration]” in several covered
States.
RESPONSE: Not disputed.
¶14. The legislative record reveals that, in North Carolina in 1965, 46.8% of eligible
non-whites were registered to vote, whereas 96.8% of whites were registered.
RESPONSE: Not disputed.
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¶15. The legislative record reveals that, when Congress extended and expanded
Section 5 in 2006, “[b]latantly discriminatory evasions of federal decrees [had become]
rare.”
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it does
not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
Moreover, in the Congressional Purposes and Findings section of the reauthorization,
Congress explicitly noted that “[p]resent day discrimination experienced by racial and
language minority voters is contained in evidence, including the objections interposed by
the Department of Justice in covered jurisdictions, the section 2 litigation to prevent
dilutive techniques from adversely affecting minority voters; the enforcement actions filed
to protection language minorities; and the tens of thousands of Federal observers
dispatched to monitor polls in jurisdictions covered by the Voting Rights Act of 1965.
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization
and Amendments of 2006, Public Law 109-246, 120 Stat. 577, Section 2(b)(5).
¶16. The legislative record reveals that, in 2004, the voter registration rate among
blacks in covered jurisdictions was over 68.1% …[citation omitted] and “[v]oter turnout and
registration rates [between blacks and whites in covered jurisdictions]…approach[ed]
parity.”
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it does
not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
5
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¶17. The legislative record reveals that in five covered States, registration and
turnout was higher for blacks than whites in 2004, and in Louisiana and South Carolina,
the gap between black and white voters was lower than the national average.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
¶18. The legislative record reveals that in North Carolina in 2004, black
registration was higher than white registration (70.4% versus 69.4%), and black turnout
was higher than white turnout (63.1% versus 58.1%).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina.
¶19. The legislative record reveals that “minority candidates [now] hold office at
unprecedented levels.”
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the fact that the vast majority of black elected officials were
elected from majority black districts created as a result of enforcement of the Voting Rights
Act. The House Judiciary Committee found that generall “[t]he only chance minority
candidates have to be successful are in districts in which minority voters control the
6
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elections.” H.R. Rep. No. 109-478, at 34. Moreover, the House Judiciary also made findings
regarding the lack of parity between minority population and minority elected officials,
noting that “[a]s in 1982, the number of African Americans elected to State legislatures
failed to reflect the number of African Americans in the general population. For example,
in States such as Alabama, Georgia, Louisiana, Mississippi, South Carolina and North
Carolina, where African Americans make up 35 percent of the population, African
Americans only made up 20.7 percent of the total number of State legislators.” H.R. Rep.
No. 109-478, at 33.
¶20. The legislative record reveals that, in the originally covered States, the number
of minorities serving in elected office has increased over 1,000% since 1965.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the fact that the vast majority of black elected officials were
elected from majority black districts created as a result of enforcement of the Voting Rights
Act and minority representation was still not close to proportional to minority population.
¶21. The legislative record reveals that, while there were only 40 black elected
officials in North Carolina in 1969, the State elected almost 500 black officers in 2001.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina. The statement also ignores the fact that the vast majority of
black elected officials were elected from majority black districts created as a result of
7
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enforcement of the Voting Rights Act. Finally, the numbers cited do not reflect the
disparity between the African American population and the number of African American
elected officials.
¶22. The legislative record reveals that only 753 objections nationwide were
interposed between 1982 and 2005.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the deterrent effect of Section 5, the fact that many of the
objections were based upon a finding of purposeful discrimination, the impact of Bossier II
on Section 5 objections, and the effect of requests for more information.
¶23. The legislative record reveals that these 753 objections amount to only .70% of
the total number of submissions filed.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the deterrent effect of Section 5, the fact that many of the
objections were based upon a finding of purposeful discrimination, the impact of Bossier II
on Section 5 objections, and the effect of requests for more information.
¶24. The legislative record reveals that many of these objections were based on
interpretations of Section 5 that were subsequently rejected by the Supreme Court.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
8
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connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the fact that Congress amended Section 5 in 2006 to restore the
original and proper standards for preclearance.
¶25. The legislative record reveals that the rate of objections has dramatically
decreased.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the deterrent effect of Section 5, the fact that many of the
objections were based upon a finding of purposeful discrimination, the impact of Bossier II
on Section 5 objections, the effect of requests for more information, and that there were
more objections between August 1982 and 2004 (626) than between 1965 and the 1982
reauthorization (490), and nine of the covered states received more objections after 1982
than before.
¶26. The legislative record reveals that the objection rate for submissions filed
between 1965 and 1970 was over 25 times higher than the objection rate for submissions
filed between 1996 and 2005.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the deterrent effect of Section 5, the fact that many of the
objections were based upon a finding of purposeful discrimination, the impact of Bossier II
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on Section 5 objections, the effect of requests for more information, and that there were
more objections between August 1982 and 2004 (626) than between 1965 and the 1982
reauthorization (490), and nine of the covered states received more objections after 1982
than before.
¶27. The legislative record reveals that the absolute number of objections has
diminished over the past three decades.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the deterrent effect of Section 5, the fact that many of the
objections were based upon a finding of purposeful discrimination, the impact of Bossier II
on Section 5 objections, the effect of requests for more information, and that there were
more objections between August 1982 and 2004 (626) than between 1965 and the 1982
reauthorization (490), and nine of the covered states received more objections after 1982
than before.
¶28. The legislative record reveals that, nationwide, 399 objections were interposed
during the 1980’s, 366 during the 1990’s, and only 44 during the 2000’s. In North Carolina,
34 objections were interposed during the 1980’s, 13 during the 1990’s, and only 4 during the
2000’s.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina. The statement also ignores the deterrent effect of Section 5, the
10
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fact that many of the objections were based upon a finding of purposeful discrimination, the
impact of Bossier II on Section 5 objections, the effect of requests for more information, and
that there were more objections between August 1982 and 2004 (626) than between 1965
and the 1982 reauthorization (490), and nine of the covered states received more objections
after 1982 than before. .
¶29. The legislative record reveals only six published cases between 1982 and 2006
that ended in a court ruling or consent decree finding that a covered jurisdiction had
committed unconstitutional discrimination against minority voters, and an equal number of
cases involving such discrimination against white voters.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it does
not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the fact that Congress found that 653 successful Section 2 cases
had been filed in Section 5 covered jurisdictions since 1982.
¶30. The legislative record reveals that, if Section 5 coverage in 2006 had been
based on an application of the Section 5 coverage formula to data from the elections in 2000
and 2004, all of the States previously covered in full would no longer be covered and Hawaii
would be the only state entirely covered.
RESPONSE: Defendant-Intervenors dispute that this statement fully and
accurately captures the reasons that jurisdictions are covered under Section 5 of the Voting
Rights Act. Defendant-Intervenors aver that the jurisdictions currently covered are covered
because Congress carefully reviewed the record in 2006 and found, based on 2006
conditions, that Section 5 remained necessary to remedy and deter discrimination in those
covered jurisdictions.
11
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¶31. The legislative record reveals that, if Section 5 coverage in 2006 had been
based on an application of the Section 5 coverage formula to data from the elections in 2000
and 2004, a substantially different set of counties and townships would be covered (and not
covered).
RESPONSE: Defendant-Intervenors dispute that this statement fully and
accurately captures the reasons that jurisdictions are covered under Section 5 of the Voting
Rights Act. Defendant-Intervenors aver that the jurisdictions currently covered are covered
because Congress carefully reviewed the record in 2006 and found, based on 2006
conditions, that Section 5 remained necessary to remedy and deter discrimination in those
covered jurisdictions.
¶32. The legislative record “suggests that there is more similarity than difference”
between covered and non-covered jurisdictions.
RESPONSE: Defendant-Intervenors dispute that this statement fully and
accurately captures the reasons that jurisdictions are covered under Section 5 of the Voting
Rights Act. Defendant-Intervenors aver that the jurisdictions currently covered are covered
because Congress carefully reviewed the record in 2006 and found, based on 2006
conditions, that Section 5 remained necessary to remedy and deter discrimination in those
covered jurisdictions.
¶33. The legislative record reveals that, in 2004, the black registration rate was
actually higher in covered jurisdictions than non-covered jurisdictions (68.1% versus
62.2%).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
12
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¶34. The legislative record reveals that, in 2004, the average black turnout rates
were identical in covered and non-covered jurisdictions (60%).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
¶35. The legislative record reveals that, in North Carolina in 2004, black
registration was higher than the national average (70.4% versus 64.3%).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina.
¶36. The legislative record reveals that, in North Carolina in 2004, black turnout
was higher than the national average (63.1% versus 56.1%).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina.
¶37. The legislative record reveals that, in 2004, “the racial gap in voter registration
and turnout [was] lower in the States originally covered by § 5 than it is nationwide.”
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
13
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connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
¶38. The legislative record reveals that, in North Carolina in 2004, black
registration rates were 1% higher than white registration rates, whereas, nationwide,
whites registered at a rate 3.6% higher than blacks.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina.
¶39. The legislative record reveals that, in North Carolina in 2004, black turnout
was 5% higher than white turnout in North Carolina, whereas, nationwide, whites voted at
a rate 4.2% higher than blacks.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina.
¶40. The legislative record reveals that the percentage of black elected officials was
higher in covered than in non-covered States in 2000, even when the former’s higher black
population was taken into consideration.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
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The statement also ignores the facts that voting remains racially polarized in the covered
jurisdictions, and that the vast majority of black elected officials were elected from majority
black districts created as a result of enforcement of the Voting Rights.
¶41. The legislative record reveals that, in North Carolina, blacks were 20% of the
voting population and held 8.56% of elected offices in 2000. In contrast, blacks were 11.4%
of the voting population nationwide and held only 1.76% of elected offices.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the facts that voting remains racially polarized in the covered
jurisdictions, and that the vast majority of black elected officials were elected from majority
black districts created as a result of enforcement of the Voting Rights. Finally, this
statement does illustrate that in North Carolina, there is still a huge disparity between the
black population and the number of black elected officials.
¶42. The legislative record reveals that there were slightly more Section 2 cases
with judicial findings of liability in non-covered jurisdictions compared to covered
jurisdictions between 1982 and 2006 (40 versus 39), and an identical number of Section 2
cases finding unconstitutional discrimination against minority voters (6 versus 6).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the fact that Congress found that 653 successful Section 2 cases
had been filed in Section 5 covered jurisdictions since 1982.
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¶43. The legislative record reveals only two reported cases in North Carolina,
between 1982 and 2006, finding violations of Section 2. Both originated in non-covered
counties.
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions,
including North Carolina. The statement also blatantly ignores the fact that there were
unreported cases finding and remedying violations of Section 2 in covered counties in North
Carolina, and at these cases were all presented to Congress in the report entitled, “Voting
Rights in North Carolina, 1982-2006.”
¶44. The legislative record reveals that, between 1982 and 2005, there were more
Section 2 cases finding legally significant levels of racially polarized voting in non-covered
jurisdictions (47) than in covered ones (44).
RESPONSE: Defendant-Intervenors dispute this statement to the extent that it
does not reflect Congress’ findings and the totality of evidence submitted to Congress in
connection with the 2006 reauthorization of Section 5 of the Voting Rights Act and the
continuing need for, and appropriateness of, applying Section 5 to covered jurisdictions.
The statement also ignores the facts that Congress found that 653 successful Section 2
cases had been filed in Section 5 covered jurisdictions since 1982, and that Congress found
voting in the covered jurisdictions was racially polarized.
This 1st day of August, 2011.
16
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Respectfully submitted,
__/s/ J. Gerald Hebert_________
J. Gerald Hebert
D.C. Bar #447676
Attorney at Law
191 Somerville Street, #405
Alexandria, VA 22304
Telephone: 703-628-4673
E-mail: hebert@voterlaw.com
Anita S. Earls
D.C. Bar #473453
N.C. Bar #15597
Allison J. Riggs
N.C. Bar #40028
Southern Coalition for Social Justice
115 Market Street, Ste. 470
Durham, North Carolina 27701
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
E-mail: anita@southerncoalition.org
allison@southerncoalition.org
Laughlin McDonald
American Civil Liberties Union
Foundations, Inc.
230 Peachtree Street, NW
Suite 1440
Atlanta, GA 30303-1227
Telephone: 404-523-2721
Facsimile: 404-653-0331
E-mail: lmcdonald@aclu.org
Arthur Barry Spitzer
American Civil Liberties Union
1400 20th Street, NW, Ste. 119
Washington, D.C. 20036
Telephone: 202-457-0800 x113
Email: artspitzer@aol.com
Attorneys for Defendant-Intervenors
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
_______________________________________
)
)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
ERIC HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES,
)
)
Defendant.
)
)
and
)
)
JOSEPH M. TYSON, et al.,
)
)
Defendant-Intervenors
)
______________________________________________)
STEPHEN LAROQUE, ANTHONY
CUOMO, JOHN NIX, KLAY
NORTHROP, LEE RAYNOR, and
KINSTON CITIZENS FOR NONPARTISAN VOTING,
Civil Action No.:
1:10-CV-561-JDB
DEFENDANT-INTERVENORS’ CROSS-MOTION FOR SUMMARY JUDGMENT
Defendant-Intervenors Joseph M. Tyson, W.J. Best, Sr., A. Offord Carmichael, Jr.,
George Graham, Julian Pridgen, William A. Cooke and the North Carolina State
Conference of Branches of the National Association for the Advancement of Colored People
respectfully move the Court pursuant to Rule 56 of the Federal Rules of Civil Procedure
and Local Rule 7 for an Order granting them summary judgment that Section 5 of the
Voting Rights Act, 42 U.S.C. §1973(c), as reauthorized and amended in 2006, is
constitutional. Defendant-Intervenors contend there is no genuine disputed issue as to any
material fact and they are thus entitled to judgment as a matter of law.
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In support of their Motion, Defendant-Intervenors are filing a Memorandum of
Points and Authorities in Opposition to Plaintiffs’ Motion for Summary Judgment and in
Support of Defendant-Intervenors’ Cross-Motion for Summary Judgment, as well as a
Statement of Material Facts as to Which There is No Genuine Issue and a Proposed Order.
Defendant-Intervenors are also attaching Exhibits A and B, and the 6 Declarations by
individual Intervenors, North Carolina NAACP members and residents of Kinston, North
Carolina. Finally, Defendant-Intervenors are filing a Response to Plaintiffs’ Statement of
Material Facts.
This 1st day of August, 2011.
Respectfully submitted,
___________________________________
J. Gerald Hebert
D.C. Bar #447676
Attorney at Law
191 Somerville Street, #405
Alexandria, VA 22304
Telephone: 703-628-4673
E-mail: hebert@voterlaw.com
Anita S. Earls
D.C. Bar #473453
N.C. Bar #15597
Allison J. Riggs
N.C. Bar #40028
Southern Coalition for Social Justice
115 Market Street, Ste. 470
Durham, North Carolina 27701
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
E-mail: anita@southerncoalition.org
allison@southerncoalition.org
Laughlin McDonald
American Civil Liberties Union
Foundations, Inc.
230 Peachtree Street, NW
Suite 1440
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Atlanta, GA 30303-1227
Telephone: 404-523-2721
Facsimile: 404-653-0331
E-mail: lmcdonald@aclu.org
Arthur Barry Spitzer
American Civil Liberties Union
1400 20th Street, NW, Ste. 119
Washington, D.C. 20036
Telephone: 202-457-0800 x113
Email: artspitzer@aol.com
Attorneys for Defendant-Intervenors
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
___________________________________________
STEPHEN LAROQUE, ANTHONY
CUOMO, JOHN NIX, KLAY
NORTHROP, LEE RAYNOR, and
KINSTON CITIZENS FOR NONPARTISAN VOTING,
Plaintiffs,
v.
ERIC HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES,
Defendant.
and
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.:
1:10-CV-561-JDB
)
JOSEPH M. TYSON, et al.,
)
)
Defendant-Intervenors
)
______________________________________________)
DEFENDANT-INTERVENORS’ STATEMENT OF MATERIAL FACTS AS TO WHICH
THERE IS NO GENUINE ISSUE
In support of their accompanying Motion for Summary Judgment, and pursuant to
Local Civil Rule 7(h), Defendant-Intervenors Joseph M. Tyson, W.J. Best, Sr., A. Offord
Carmichael, Jr., George Graham, Julian Pridgen, William A. Cooke and the North Carolina
State Conference of Branches of the National Association for the Advancement of Colored
People hereby file the following Statement of Material Facts as to Which There is No
Genuine Issue. Exhibits A and B, and the 6 Declarations from individual Intervenors and
residents of Lenoir County, are attached as part of this Statement and in support of
Defendant-Intervenors’ Cross Motion for Summary Judgment. Exhibit A is the Joint
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Statement of Material Facts as to Which There Is No Genuine Issue (Doc. # 57) filed by the
Defendant-Intervenors in Shelby County, Alabama v. Holder, et al., Civil Action No. 1:10CV-651, also before this Court. That Joint Statement aptly summarized the determinations
and findings of fact made by Congress during its consideration of the 2006 reauthorization
of Section 5 of the Voting Rights Act. Defendant-Intervenors in the present action fully
adopt by reference this attachment as a part of their Statement of Material Facts as to
Which There Is No Genuine Issue, and supplement their Statement as follows:
1.
Like other Deep South states, North Carolina has a long history of racial
discrimination that has touched the right to vote.
2.
While North Carolina is perceived to be “one of the few Southern states that
has been moderate in race relations, it has been “most effective in belittling the
voting strength of a sizable black population.” William R. Keech and Michael
P. Sistrom, North Carolina, in QUIET REVOLUTION IN THE SOUTH 155
(Changler Davidson & Bernard Grofman, eds., 1994).
3.
Like other Southern states, North Carolina adopted a new Constitution in 1898
that was aimed at enshrining “white supremacy” in its politial process.
Kousser, SOUTHERN POLITICS, supra, at 187. The goal, simply put, was to
disenfranchise African American voters permanently. Kousser, SOUTHERN
POLITICS, supra, at 189-190. The disenfranchising devices included the reregistration of voters, moving state elections to August, requiring voters to
pass a literacy test and instituting a poll tax as a requirement to vote. Keech &
Sistrom, supra, at158. To ensure that illiterate white voters were not
disenfranchised along with African-American voters the literacy test was tied
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to a Grandfather Clause. Michael Perman, STRUGGLE FOR MASTERY:
DISFRANCHISEMENT IN THE SOUTH 1888-1908 164-165 (2001). The effect of
these new requirements fell disproportionately on African American voters
who, as a result, essentially stopped voting.
4.
Because the electoral laws in North Carolina worked to bar African-American
participation in the political process, elected leaders stopped addressing the
needs of African-American communities. See, e.g. . Morgan Kousser,
Progressivism–For Middle-Class Whites Only: North Carolina Education
1880-1910, 46 J. So. Hist. 169 (1980) [hereinafter Kousser, Progressivism] ,
Indeed, “North Carolina suppressed black political activity thoroughly during
the period of the ‘nadir’ of race relations in the first half of the twentieth
century and only slowly, grudgingly, and partially liberalized thereafter.”
Morgan Kousser, Shaw v. Reno and the Real World of Redistricting and
Representation 26. Rutgers L.J. 625, 671 (1995) [hereinafter Kousser, Shaw].
5.
The passage of the Voting Rights Act of 1965 prevented North Carolina state
and local jurisdictions from enacting election laws similar to those laws which
so effectively marginalized or eliminated the African American vote in the
early twentieth century. As a result, minority voters in the state slowly gained
the ability to participate in the political process. More specifically, the VRA
has allowed minority voters to register and remain on the voting rolls,
prevented jurisdictions from changing the method of elections that would
retrogress minority voting strength, and prevented the enactment of
redistricting plans that retrogress minority voting strength.
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Notwithstanding the increased level of political participation for black voters
following passage of the Voting Rights Act, racial discrimination persisted
throughout the state. As the three-judge court in Gingles v. Edmisten
recognized in 1984, “the State of North Carolina had officially and effectively
discriminated against black citizens in matters touching their exercise of the
voting franchise.” 590 F. Supp. 345, 359 (1984).
7.
Overall, in North Carolina more African Americans were registered to vote
than in other southern states subject to the VRA’s preclearance provisions. In
the years immediately after the passage of the VRA, an increasing number of
African American voters were able to register. Ten Years After, supra, at 41.
However, the gap between white and African American registrations rates
stubbornly persisted well after the passage of the VRA. Ten Years After,
supra, at 43 (estimating the white registration rate to be 15.9% [more?] than
the African–American registration rate).
8.
One reason the gap in registration rates persisted is that African American
voters still faced a heroic task in registering to vote. In some counties, voters
had to travel far distances to the single place where voter registration was
conducted. Id. at 74. In addition, “[o]lder blacks in rural northeastern counties
[were] still afraid to register or vote. . . .” Id. at 196. In some covered
jurisdictions in North Carolina, African Americans “believe[d] they must be
cautious about participating too actively in politics.” Id. Finally, even where
African American voters were able to register to vote, they would be purged
from the voting rolls simply for nonvoting. Id. at 84. Despite these difficulties,
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as early as 1975, the VRA had made minority voters an important segment of
the electorate.
9.
However, many jurisdictions continued to search for ways to circumvent the
protections of the VRA. For instance, several covered jurisdictions in the
1970s attempted to enact changes to electoral laws without seeking
preclearance. Id. at 306. In 1971 Halifax County instituted a residence
requirement for county elections. Id at 309. In 1966 and 1968, Vance County
instituted residency requirements and staggered terms for county elected
offices. Id. at 309-10. The changes proposed in these laws mirror some preVRA attempts to dilute the ability of African–American voters to influence
elections without actually barring African–Americans from voting.
10.
On the state level, legislators attempted to dilute the ability of minority voters
to elect candidates of choice as well. In fact, “before 1991, white congressmen
openly manipulated redistricting to buttress their positions against candidates
who might appeal to black voters.” J. Krousser, Shaw, supra, at 674. During
the 1980 redistricting cycle, North Carolina attempted to protect a white
incumbent (L.H. Fountain) from challenges by minority candidates of choice.
Id. To do this, the North Carolina General Assembly enacted the “fishhook
district” which curled around Durham and Orange Counties to avoid picking
up African–American and white voters who would support an African–
American candidate of choice. Id. at 679. The Department of Justice (DOJ)
interposed an objection to the redistricting plan under Section 5 of the VRA.
Shortly after the North Carolina General Assembly remedied the “fishhook
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district,” Congressman Fountain retired. Id. at 684. Kousser notes that DOJ’s
Section 5 objection to the discriminatory “fishhook district” was critical to the
adoption of a district in which minority candidates of choice had an
opportunity to win the majority of votes. Id. at 683.
11.
Other factors prevented an African–American candidate of choice from being
elected during the 1980’s. In 1982, Herny M. Michaux came closer to winning
election to Congress than any previous candidate in eastern North Carolina in
the twentieth century. However, Michaux ultimately lost the run-off to Tim
Valentine, by a vote of 53.8-46.2%. Kousser attributes racial appeals, white
bloc voting, and the majority-vote requirement of North Carolina’s run-off
system as the causes of Michaux’s loss. Id. at 686-87. Valentine defeated
another African–American candidate of choice, Kenneth B. Spaulding in 1984
in an election marked by racial polarization.
12.
During the 1990’s DOJ again used its authority under Section 5 of the VRA
and interposed objections to North Carolina’s congressional redistricting plan.
As a result, two districts were created which provided African American voters
with an effective opportunity to elect their preferred candidates of choice. As
Congressman Mel Watt has noted, “‘If you look at the history of the districts in
North Carolina, if . . . the Voting Rights Act were not in place, there simply
would never have been created the opportunity for African Americans to be
elected.’” Lawyers’ Committee for Civil Rights Under Law, Highlights of
Hearings of the National Commission on the Voting Rights Act, 61 (2005).
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In addition, where legal means of defeating minority candidates of choice were
judged to be insufficient, varying forms of voter intimidation have been used
to prevent minority voters from casting ballots. “Voter intimidation is not a
relic of the past, but rather, a strategy used with disturbing frequency in recent
years.” Anita S. Earls et al., Voting Rights in North Carolina: 1982–2006 17 S.
Cal. Rev. L. Soc. Just. 577, 589 (2008). For instance, in 1990, the Committee
to re-elect U.S. Senator Jesse Helms, who faced a black opponent, mailed
postcards to 125,000 African–American voters with incorrect information
about voting qualifications, leaving many voters confused about whether they
could vote. DOJ sued under the VRA to stop this vote suppression effort and
obtained a consent decree banning the practice in United States v. North
Carolina Republican Party. Id. at 589-90.
14.
In 1982, Congress assessed the need for extending Section 5 of the Voting
Rights Act. In the Senate Judiciary Committee’s Report, the Committee cited
a case in Robeson County, North Carolina, where the City of Lumberton failed
to submit annexations it made in 1967 and 1970 to the Department of Justice
for Section 5 preclearance approval. When the Department interposed an
objection after finding that the annexations were driven by a racially
discriminatory purpose, Lumberton refused to comply. S. Rep. No. 97-417, at
13 (1982). Eventually, an injunction was entered in 1981 to stop the City from
allowing voters in the annexed areas from voting in city elections. Id.
15.
At the time Congress considered reauthorization of Section 5 of the Voting
Rights Act in 2005 and 2006, only two African-Americans had held statewide
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office. Transcript of Southern Regional Hearing at 52, National Commission
on the Voting Rights Act, March 11, 2005 [hereinafter Southern Regional
Hearing]. Prior to Congressman Mel Watt’s election to Congress in 1992, no
African-American had been elected to Congress from North Carolina since
1898, despite the fact that twenty percent of the population was AfricanAmerican. Transcript of Mid-Atlantic Regional Hearing at 10, National
Commission on the Voting Rights Act, October 14, 2005 [hereinafter MidAtlantic Regional Hearing]. In fact, Congressman Watt described the situation
as only getting worse, not better. Id. at 35.
16.
In testimony before both Congress and the National Commission on the Voting
Rights Act [hereinafter “the Commission”], a number of witnesses expressed
the belief that minority voters would have less opportunity to participate in the
political process in North Carolina without Section 5 of the Voting Rights Act.
A group of Democratic and Republican election lawyers from the state,
including the former Chairman of the North Carolina State Board of Elections,
unanimously agreed that Section 5 was still needed. The Voting Rights Act:
The Continuing Need for Section 5 Before the Subcomm. on the Constitution of
the H. Comm. on the Judiciary, 109th Cong. 18 (2005) [hereinafter Hearings]
(statement of Robert Hunter, Voting Rights Litigator, Hunter, Higgins, Miles,
Elam and Benjamin, P.L.L.C.). Robert Hunter, former Chairman of the North
Carolina State Board of Elections, asserted that “political elements . . . would
seek to retrogress or backslide in their obligations to be racially fair in making
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redistricting decisions in the absence of reauthorization of section 5.” Id. at
16.
17.
Referencing the most prevalent form of minimizing or diluting AfricanAmerican voting strength – at-large election systems at the county and local
level – Congressman G.K. Butterfield of North Carolina’s 1st Congressional
District stated: “I can assure you that if Section 5 is not extended, there will be
a rush to change district elections back to at-large election systems.” Transcript
of Florida Hearing at 16, National Commission on the Voting Rights Act,
August 4, 2005 [hereinafter Florida Hearing].
18.
During debate in the House of Representatives, Congressman Bob Etheridge,
then representing North Carolina’s 2nd Congressional District, quoted Donald
Wright, the general counsel to the North Carolina State Board of Elections, as
saying, “[T]here continue to be instances in which section 5 prevents
discriminatory voting changes from being implemented in North Carolina.”
152 CONG. REC. 14,298 (2006) (statement of Congressman Bob Etheridge).
19.
The hearings of the Commission were replete with anecdotal evidence of
continued discrimination across the state. Dr. Richard Engstrom, who served
as an expert witness for the state in Shaw v. Reno, noted that voting patters in
North Carolina were still marked by racial polarization, which he believed to
“equal” racial prejudice in the state, especially in the southeast. Southern
Regional Hearing at 31, 37. Tisha Tillman, Southeast Regional Counsel for
MALDEF, recounted an incident in Alamance County, North Carolina, in
which the county sheriff obtained the list of all registered Latino voters and
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publicly announced that he was going to go to each of their houses and arrest
anyone he did not believe to be a United States citizen. Transcript of Southern
Georgia Hearing at 27, National Commission on the Voting Rights Act,
August 2, 2005. Congressman Butterfield cited an on-going situation in
Halifax County, North Carolina, where the three white members – two
Democrats and one Republican – of the six member board [of ?] opposed the
appointment of an African-American commissioner to be chairman, despite the
fact that he was the longest-serving. Florida Hearing at 29. Congressman Mel
Watt, from North Carolina’s 12th Congressional District, shared two examples
of well-qualified African American candidates losing their seats because of the
refusal of white voters to even consider voting for African-American
candidates. Mid-Atlantic Regional Hearing at 12. In one example,
Congressman Watt discussed the electoral defeat in a state court of appeals
race of a “well-qualified, seasoned African-American lawyer who had been
practicing law for years in North Carolina” by a fireman with “no legal
background, experience, nothing to commend him for the court except that he
was white.” Id.
20.
A study by Dr. Kerry Haynie of Duke University demonstrated a significant
racial bias in state legislators, such that providing African-Americans with the
opportunity to elect candidates of their choice was essential for ensuring their
needs were properly represented in state government. Southern Regional
Hearing at 52. Dr. Haynie found that twice as many African-American
members of the state legislature introduced anti-discrimination bills as non-
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black legislators, and that there was significant racial prejudice among
lawmakers and lobbyists against African-American legislators. Southern
Regional Hearing at 52.
21.
Litigation under the Voting Rights Act has been necessary in North Carolina to
block erosion of African-Americans’ ability to meaningfully participate in the
electoral process. Congressman Butterfield asserted that without Voting
Rights Act litigation, most of the African-American local officeholders in his
district would not be in office. Florida Hearing at 16.
22.
Since the Voting Rights Act was passed in 1965, the Department of Justice has
interposed 49 objections against various election systems and redistricting
schemes implemented by the state of North Carolina and several jurisdictions
within the state. The majority of the objections were attempts by local
jurisdictions to implement at-large election systems, residency district
requirements within at-large election systems, and majority vote requirements.
Of the 49 objections, the Department of Justice made a finding of racial bloc
voting or racially-polarized voting in 20 of them, the most recent of which was
in 2009 in Lenoir County. A listing and brief description of these objections is
attached as Exhibit C.
23.
Racially polarized voting remains a very present trend in Lenoir County and
Kinston, and has demonstrable effects on minority voting rights in those
jurisdictions. See Declarations of Joseph M. Tyson, Sr., George Graham,
Julian Pridgen, Courtney M. Patterson, William A. Cooke, and Linda Joyce
Lanier.
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Respectfully submitted,
____/s/ J. Gerald Hebert____________
J. Gerald Hebert
D.C. Bar #447676
Attorney at Law
191 Somerville Street, #405
Alexandria, VA 22304
Telephone: 703-628-4673
E-mail: hebert@voterlaw.com
Anita S. Earls
D.C. Bar #473453
N.C. Bar #15597
Allison J. Riggs
N.C. Bar #40028
Southern Coalition for Social Justice
115 Market Street, Ste. 470
Durham, North Carolina 27701
Telephone: 919-323-3380 ext. 115
Facsimile: 919-323-3942
E-mail: anita@southerncoalition.org
allison@southerncoalition.org
Laughlin McDonald
American Civil Liberties Union
Foundations, Inc.
230 Peachtree Street, NW
Suite 1440
Atlanta, GA 30303-1227
Telephone: 404-523-2721
Facsimile: 404-653-0331
E-mail: lmcdonald@aclu.org
Arthur Barry Spitzer
American Civil Liberties Union
1400 20th Street, NW, Ste. 119
Washington, D.C. 20036
Telephone: 202-457-0800 x113
Email: artspitzer@aol.com
Attorneys for Defendant-Intervenors
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE,
ANTHONY CUOMO, JOHN NIX,
KLAY NORTHRUP, LEE RAYNOR,
and KINSTON CITIZENS FOR
NONPARTISAN VOTING,
)
)
)
)
)
)
Plaintiffs
)
)
v.
)
)
ERIC H. HOLDER, JR., in his official capacity as )
Attorney General Of The United States,
)
)
Defendant
)
)
Civil Action No. 1:10-0561 (JDB)
Judge John D. Bates
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB- Room 7264
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
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Plaintiffs brought this action alleging a facial challenge to the constitutionality of Section
5 of the Voting Rights Act, as reauthorized and amended in 2006. Plaintiffs allege that Congress
exceeded its authority under the Fourteenth and Fifteenth Amendments when it reauthorized
Section 5 in 2006. And they allege that Section 5, as amended in 2006, violates the
nondiscrimination mandates of the Fifth, Fourteenth, and Fifteenth Amendments. Pursuant to
Rule 56(b), Defendant Eric H. Holder, Jr. (“Attorney General”) respectfully moves this Court for
an order granting summary judgment to him as to both of Plaintiffs’ claims.
A moving party is entitled to summary judgment where, as here, “the pleadings, the
discovery and disclosure materials on file, and any affidavits, show that there is no genuine issue
as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c)(2); Local Civ. R. 7(h); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249250 (1986); Arrington v. United States, 473 F.3d 329, 333 (D.C. Cir. 2006). Because there is no
genuine triable issue as to any material fact before this Court, the Attorney General is entitled to
judgment as a matter of law.
In support of this motion, the Attorney General submits a Memorandum of Law and
attaches a Statement of Uncontested Material Facts, with accompanying exhibits.
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Date: August 1, 2011
Respectfully submitted,
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
/s/Richard Dellheim
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB- Room 7264
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE,
ANTHONY CUOMO, JOHN NIX,
KLAY NORTHRUP, LEE RAYNOR,
and KINSTON CITIZENS FOR NONPARTISAN VOTING,
Plaintiffs
v.
ERIC H. HOLDER, Jr.,
in his official capacity as
Attorney General of the
United States,
Defendant
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Civil Action No.
1:10-cv-00561-JDB
DEFENDANT’S STATEMENT OF UNCONTESTED MATERIAL FACTS
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB-Room 7255
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
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Pursuant to Local Civil Rule 7(h)(1), Defendant Attorney General of the United States
submits the following statement of material facts as to which the United States contends there is
no genuine issue.
Background Information
1.
The City of Kinston is a municipality of Lenoir County, North Carolina. See
Compl. ¶11 (Dkt. 1).
2.
Lenoir County became covered by the temporary provisions of the Voting Rights
Act based on a coverage determination made by the Attorney General and the
Director of the Census dated August 6, 1965, and published in the Federal
Register on August 7, 1965. See 30 Fed. Reg. 9897 (Aug. 7, 1965). The City of
Kinston, as a political subunit of Lenoir County, has been subject to Section 5
since that time. See 28 C.F.R. § 51.6.
3.
In February 2009, the City of Kinston, North Carolina submitted to the Attorney
General for Section 5 review a proposed change from partisan to nonpartisan
elections for municipal offices that had been adopted by the City’s electorate by
referendum in November 2008. See Berman Decl. ¶ 3 (Ex. 1).
4.
On August 17, 2009, the Department interposed an objection to the proposed
change. See Berman Decl. ¶ 4 (Ex. 1).
5.
The City of Kinston did not exercise its right to seek a de novo statutory
declaratory judgment from this court to overcome the Department’s objection, nor
did it seek reconsideration of that objection from the Attorney General. See
Def.’s Mem. in Supp. of Def.’s Mot. To Dismiss at 4; 42 U.S.C. 1973c(a).
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Section 5 Process
6.
The Attorney General endeavors to comply with Congress’s intent that the
administrative review of voting changes submitted pursuant to Section 5 be an
efficient, convenient, and affordable alternative to seeking a declaratory judgment
from a three-judge court in the United States District Court for the District of
Columbia. See Berman Decl. ¶ 5 (Ex. 1).
7.
To that end, the Attorney General has a long-standing policy of providing
information to covered jurisdictions concerning the administrative review process
by publishing the Procedures for the Administration of Section 5 of the Voting
Rights Act of 1965 in the Code of Federal Regulations. 28 C.F.R. part 51. These
procedures were first promulgated in 1971, 36 Fed. Reg. 18186 (Sept. 10, 1971),
and are revised when necessary. See, e.g., 75 Fed. Reg. 33205 (June 11, 2010);
76 Fed. Reg. 21239 (Apr. 15, 2011). See Berman Decl. ¶ 6 (Ex. 1).
8.
The Attorney General also has created a website that provides information
concerning the Section 5 process (http://www.usdoj.gov/crt/voting/). See Berman
Decl. ¶ 7 (Ex. 1).
9.
Section 5 allows submissions to be made by the “chief legal officer” or “other
appropriate official” of a jurisdiction. 42 U.S.C. 1973c.
10.
The Attorney General’s procedures likewise provide that submissions can be
made by the “chief legal officer,” “other appropriate official of the submitting
authority,” or “any other authorized person on behalf of the submitting authority.”
28 C.F.R. § 51.23.
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11.
The Attorney General provides a toll-free telephone number for submitting
officials to contact Department of Justice staff members, who are available to
guide those officials through the submission process. See Berman Decl. ¶ 8 (Ex.
1).
12.
The Attorney General’s procedures have always provided covered jurisdictions
with the option to request expedited consideration of voting changes. 28 C.F.R. §
51.34. The Attorney General makes every effort to accommodate covered states
and local jurisdictions that experience emergencies prior to elections that require
expedited consideration of voting changes. Situations calling for expedited
consideration include events such as fires or natural disasters that affect which
polling places can be used in an election, or pre-election litigation that threatens to
stop the conduct of an election. In appropriate circumstances, the Attorney
General has made determinations within 24 hours or less of receipt of a
submission. See Berman Decl. ¶ 9 (Ex. 1).
13.
The Attorney General also allows covered jurisdictions to send Section 5
submissions by overnight delivery. See Berman Decl. ¶ 10 (Ex. 1).
14.
For some years, the Department has allowed jurisdictions to make submissions
and submit additional information on pending Section 5 submissions by
telefacsimile. See Berman Decl. ¶ 11 (Ex. 1).
15.
The Attorney General allows jurisdictions to make Section 5 submissions through
a web-based application (http://wd.usdoj.gov/crt/voting/sec_5/evs/). See Berman
Decl. ¶ 12 (Ex. 1).
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16.
The Attorney General allows jurisdictions to submit additional information on
pending Section 5 submissions by electronic mail. See Berman Decl. ¶ 13 (Ex.
1).
Bailout Administration and History
17.
Section 5 covered jurisdictions may seek to terminate their coverage under
Section 5 by bringing a “bailout” action, a declaratory judgment action in the
United States District Court for the District of Columbia. See 1965 Act, § 4(a), 79
Stat. 438.
18.
As originally enacted, the “bailout” mechanism was available only to covered
States and to jurisdictions, such as counties, “with respect to which such
[coverage] determinations have been made as a separate unit.” Id.
19.
To terminate Section 5 coverage, a jurisdiction was required to prove it had not
used a prohibited test or device “for the purpose or with the effect of denying or
abridging the right to vote on account of race or color” during the previous five
years. Id.
20.
In 1982, Congress amended the bailout provision of the Voting Rights Act,
substantially expanding the opportunity for covered jurisdictions to terminate
coverage. In 1982, Congress added a third category of eligible jurisdictions, “any
political subdivision of [a covered] State” even if the coverage determination had
not been made “with respect to such subdivision as a separate unit.” 1982
Reauthorization, § 2(b)(2), 96 Stat. 131; see 42 U.S.C. 1973b(a).
21.
The 1982 Reauthorization also changed the substantive requirements for bailout.
Under the revised bailout provision, currently in effect, jurisdictions must
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demonstrate that they have fully complied with Section 5 and other voting rights
provisions during the previous ten years. 1982 Reauthorization, § 2(b)(4), 96
Stat. 131-133; see 42 U.S.C. 1973b(a).
22.
To demonstrate compliance with the Voting Rights Act during the ten-year period
preceding the filing of the declaratory judgment action under Section 4(a), a
jurisdiction seeking bailout must prove the following five conditions: (1) it has
not used any test or device with the purpose or effect of denying or abridging the
right to vote on account of race or color; (2) no final judgment of any court of the
United States has determined that denials or abridgements of the right to vote on
account of race or color have occurred anywhere in the jurisdiction and no
consent decree, settlement, or agreement has been entered into before or during
the pendency of the declaratory judgment action that results in the abandonment
of such a practice; (3) no Federal examiners or observers under the Voting Rights
Act have been assigned to the jurisdiction; (4) the jurisdiction has complied with
Section 5 of the Voting Rights Act, including the preclearance of all changes
covered by Section 5 prior to implementation and the repeal of all covered
changes to which the Attorney General has successfully objected or for which the
District Court for the District of Columbia has denied a declaratory judgment; and
(5) the Attorney General has not interposed any objection not overturned by final
judgment of a court and no Section 5 declaratory judgment action has been
denied, with respect to any submissions by the jurisdiction, and no such
submissions or declaratory judgment actions are pending. 42 U.S.C.
1973b(a)(1)(A)-(E).
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23.
In addition, a jurisdiction seeking bailout must demonstrate the steps it has taken
to encourage minority political participation and to remove structural barriers to
minority electoral influence by showing the following: the elimination of voting
procedures and election methods that inhibit or dilute equal access to the electoral
process; constructive efforts to eliminate intimidation and harassment of persons
exercising rights protected under the Voting Rights Act; and other constructive
efforts, such as expanded opportunities for convenient registration and voting for
every person of voting age and the appointment of minority persons as election
officials throughout the jurisdiction and at all stages of the election and
registration process. 42 U.S.C. 1973b(a)(1)(F)(i)-(iii).
24.
To assist the court in determining whether to issue a declaratory judgment, the
jurisdiction also must present evidence of minority voting participation, including
the levels of minority group registration and voting, changes in those levels over
time, and disparities between minority-group and non-minority-group
participation. 42 U.S.C. 1973b(a)(2).
25.
The jurisdiction must demonstrate that during the ten years preceding judgment, it
has not violated any provision of the Constitution or federal, state, or local laws
governing voting discrimination, unless it shows that any such violations were
trivial, promptly corrected, and not repeated. 42 U.S.C. 1973b(a)(3).
26.
The jurisdiction must also publicize its intent to commence a declaratory
judgment action and any proposed settlement of the action. 42 U.S.C.
1973b(a)(4).
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27.
If the jurisdiction shows “objective and compelling evidence” that it has satisfied
the foregoing requirements, as confirmed by the Department’s independent
investigation, the Attorney General is authorized to consent to entry of a judgment
granting an exemption from coverage under Section 5 of the Voting Rights Act.
42 U.S.C. 1973b(a)(9).
28.
If a jurisdiction requests termination of Section 4 coverage, the Attorney General
conducts an independent investigation into whether the jurisdiction meets the
statutory requirements. See Berman Decl. ¶ 22 (Ex. 1).
29.
The Attorney General’s independent investigations include interviewing minority
contacts, reviewing electoral behavior within the jurisdiction, and researching
whether there are any unsubmitted voting changes, including reviewing a
jurisdiction’s records for the last 10 years to see if the jurisdiction has
implemented any changes affecting voting that have not received the requisite
Section 5 preclearance. See Berman Decl. ¶ 25 (Ex. 1).
30.
Since 1965, 58 (6.2%) of the approximately 943 county, parish, and townshiplevel jurisdictions that conduct voter registration and were originally covered by
Section 4, have successfully bailed out and maintained their bailed out status.
One state and several other jurisdictions also successfully bailed out, but were
later re-covered by new coverage determinations or by new court findings.
Overall, since 1965, there have been 50 bailout cases filed under Section 4(a).
The United States consented to bailout in 42 of those cases, with bailout granted
in 38 (in one of these cases bailout was later rescinded); in 3 cases, the United
States opposed bailout and, in each instance, the court denied the request; in 5
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cases, the jurisdiction dismissed its bailout action voluntarily after the United
States opposed the bailout request; and in 4 cases, proposed consent decrees are
currently awaiting Court approval. See Berman Decl. ¶ 15 (Ex. 1).
31.
Since the new bailout standard, enacted in 1982, went into effect on August 5,
1984, the United States has consented to bailout in 23 cases; in each instance the
court granted the request. This includes 18 cases involving county level
jurisdictions (with 51 included subjurisdictions) and 5 cases involving smaller
subjurisdictions. Hence, a total of 74 jurisdictions have been granted bailout since
August 5, 1984. See Berman Decl. ¶ 16 (Ex. 1).
32.
In the 27 years since the new bailout standard became effective on August 5, 1984
until the Supreme Court’s decision in Nw. Austin Mun. Util. Dist. No. 1 v. Holder,
129 S. Ct. 2504, 2513-17 (2009), jurisdictions have sought and the United States
consented to and this Court has granted bailout in 18 cases. See Berman Decl. ¶
17 (Ex. 1).
33.
The Supreme Court has made it clear that the bailout provision should be
interpreted broadly. See Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct.
2504, 2513-17 (2009).
34.
Subsequent to the Northwest Austin decision, the Attorney General has consented
to, and this Court has granted, bailout by five smaller, sub-county jurisdictions:
the Northwest Austin Municipal Utility District itself; the City of Kings
Mountain, North Carolina; the City of Sandy Springs, Georgia; the Jefferson
County Drainage District Number Seven, Texas; and Alta Irrigation District,
California. See Berman Decl. ¶ 18 (Ex. 1).
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35.
Of these bailouts, two jurisdictions from Texas bailed out, becoming the first
Texas jurisdictions ever to bail out; the first Georgia jurisdiction bailed out; the
first California jurisdiction bailed out; and the first North Carolina jurisdiction
since 1967 bailed out. See Berman Decl. ¶ 21 (Ex. 1).
36.
Four additional consent decrees consenting to bailout have been filed and are
currently awaiting approval from the United States District Court for the District
of Columbia in 2011: City of Bedford, Virginia, (City of Bedford v. Holder, C.A.
No. 1:11-cv-473 (D.D.C., proposed consent decree filed June 8, 2011)); City of
Manassas Park, Virginia, (City of Manassas Park v. Holder, C.A. No. 1:11-cv749 (D.D.C., proposed consent decree filed June 20, 2011)); Rappahannock
County, Virginia, (Rappahannock County v. Holder, C.A. No. 1:11-cv-1123
(D.D.C., proposed consent decree filed July 7, 2011)); and Bedford County,
Virginia, (Bedford County v. Holder, C.A. No. 1:11-cv-499 (D.D.C., proposed
consent decree filed July 27, 2011)). See Berman Decl. ¶ 19 (Ex. 1).
37.
Thus, nine proposed consent decrees have been filed in the last two years, five of
which have been entered so far by the district court. In 2011 alone, six proposed
consent decrees have been filed seeking bailout, two of which have been entered
by the district court. See Berman Decl. ¶ 19 (Ex. 1).
38.
The Attorney General has entered into consent decrees allowing bailout under
Section 4 with jurisdictions including, but not limited to, Roanoke County,
Virginia, Shenandoah County, Virginia, and Frederick County, Virginia, where
the jurisdictions had implemented isolated voting changes prior to submitting
them for Section 5 review. See Berman Decl. ¶ 26 (Ex. 1).
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39.
The Attorney General has consented to every bailout action by a political
subdivision filed since August 5, 1984, the effective date for the revised bailout
provision. See Berman Decl. ¶ 23 (Ex. 1).
40.
Currently, the Attorney General is reviewing the informal requests of numerous
jurisdictions to consent to terminate coverage under Section 4. See Berman Decl.
¶ 24 (Ex. 1).
Clarification of Legislative Record
41.
Plaintiff points to the Congressional Record in asserting that “In five covered
States, registration and turnout was higher for blacks than whites in 2004, and in
Louisiana and South Carolina, the gap between black and white voters was lower
than the national average. African-American voter turnout in the 2004
presidential election was actually higher than white turnout in three fully-covered
states and was within 5% in two others.” Pl.’s Mem. of P. & A. in Supp. of Pl.’s
Mot. for Summ. J. at 19-20 (citing S. Rep. No. 109-295, at 11 (2006)) (Dkt. 23).
42.
The 2006 House Report included data on disparities between white and black
turnout and registration. The data in the House Report understated the disparities
because it compared registration and turnout rates for blacks to rates for whites,
including Hispanics, rather than for white non-Hispanics. Including Hispanic
turnout in the white turnout rate lowers the white turnout rate because of very low
Hispanic turnout. See Northwest Austin Municipal Utility District No. 1 v.
Mukasey, 573 F. Supp. 2d 221, 248 (D.D.C. 2008) (Northwest Austin I), rev’d on
other grounds, 129 S. Ct. 2504 (2009); see May 17, 2006, Senate Hearing, at 131132 (supplemental testimony of Nathaniel Persily); see U.S. Census Bureau,
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Current Population Survey tbl. 4a (Nov. 2004) (Census Bureau Survey),
http://www.census.gov/hhes/www/socdemo/voting/publications/p20/2004/tables.
html.
43.
When the correct data are used, 2004 black registration and turnout rates in the
covered States exceed the rates for whites only in Mississippi. Northwest Austin
I, 573 F. Supp. 2d at 248.
44.
The vast majority of racially discriminatory election practices remedied by
enforcement of Section 2 during the past quarter century has taken place in
jurisdictions covered by Section 5 of the Voting Rights Act. McCrary Decl. ¶ 18
(Ex. 3).
45.
The study of reported decisions by Ellen Katz and law students at the University
of Michigan working under her direction identified 64 Section 2 cases in covered
jurisdictions in which plaintiffs were successful. McCrary Decl. ¶ 19 (Ex. 3).
46.
The National Commission report, Protecting Minority Voters, found a total of 653
cases resolved in a manner favorable to minority voters in covered jurisdictions,
including both reported decisions and settlements. H. Appx. 125-126; Voting
Rights Act: Section 5 of the Act – History, Scope, and Purpose: Hearing Before
the Subcomm. on the Constitution of the House Comm. on the Judiciary, 109th
Cong., 1st Sess. 2835-2839, 2846, 2848 (2005); McCrary Decl. ¶ 7 & n.1 (Ex. 3).
These cases, some of which were statewide in impact, affected voting practices in
825 counties, parishes, or independent cities covered by Section 5. Id.
47.
Looking at jurisdictions not covered by Section 5, the University of Michigan
study found only 50 successful reported outcomes for minority voters (44 percent
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of the 114 successful reported cases nationwide). See McCrary Decl. ¶ 20 (Ex.
3). Thus even in reported decisions a significant majority of successful outcomes
were in jurisdictions covered by Section 5. See id.
48.
Once data for Section 2 settlements are included, however, the disparity between
covered and non-covered areas increases dramatically. Looking at unreported
decisions, research demonstrates 99 Section 2 settlements in non-covered
jurisdictions, as compared with 587 in areas covered by Section 5 identified in the
National Commission report. See McCrary Decl. ¶ 20 (Ex. 3). At least 61 of
these 99 unreported successful settlements in noncovered jurisdictions were in the
record before Congress during the 2006 reauthorization of Section 5. See
McCrary Decl. ¶ 20 (Ex. 3).
49.
Eighty-six percent of all successful outcomes in cases without reported decisions
occurred within jurisdictions covered by Section 5. See McCrary Decl. ¶ 20 (Ex.
3).
50.
Based on the record before Congress when it adopted the 2006 Reauthorization
Act, there were 61 Section 2 cases settled favorably for minority voters in noncovered jurisdictions. See McCrary Decl. ¶ 20-21 (Ex. 3). According to the
National Commission report provided to Congress in 2006, there were 587
Section 2 lawsuits settled so as to provide favorable outcomes for minority voters
in jurisdictions covered by Section 5. Thus the record before Congress shows that
91 percent of all Section 2 cases settled favorably for minority voters were in
covered jurisdictions. See McCrary Decl. ¶ 21 (Ex. 3).
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51.
Looking beyond the congressional record and combining all successful outcomes
in both reported and unreported cases – including those on the record before
Congress and those identified in the study reported in the McCrary Declaration
attached as Exhibit 1 hereto – shows that 81 percent of all successful outcomes in
Section 2 cases occurred in covered jurisdictions. See McCrary Decl. ¶ 22 (Ex.
3).
14
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Respectfully submitted,
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
THOMAS E. PEREZ
Assistant Attorney General
Civil Rights Division
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
/s/ Richard Dellheim
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB-Room 7264
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE,
ANTHONY CUOMO, JOHN NIX,
KLAY NORTHRUP, LEE RAYNOR,
and KINSTON CITIZENS FOR NONPARTISAN VOTING,
)
)
)
)
)
)
Plaintiffs
)
)
v.
)
)
ERIC H. HOLDER, JR., in his official capacity as )
Attorney General Of The United States,
)
)
Defendant
)
)
Civil Action No. 1:10-0561 (JDB)
Judge John D. Bates
DEFENDANT’S RESPONSE TO PLAINTIFFS’ STATEMENT
OF MATERIAL FACTS
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB-Room 7264
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
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Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7(h), Defendant submits
the following response to Plaintiffs’ Statement of Material Facts submitted in support of its
Motion for Summary Judgment [Doc. 23]. Defendant does not address or concede the legal
relevance, materiality, or probativeness, as to the constitutional or jurisdictional issues presented
in this case, of the assertions contained in the Plaintiffs’ Statement of Material Facts.
¶1.
In November of 2008, voters in the City of Kinston, North Carolina, adopted a
referendum that would have amended the city charter to provide for nonpartisan municipal
elections. See North Carolina State Board of Elections, Sample Ballot, Lenoir County, North
Carolina, Nov. 4, 2008, www.sboe.state.nc.us/getdocument.aspx?ID=782 (last visited Aug. 13,
2010) (Exhibit A); Lenoir County Board of Elections, 2008 General Election, Official Results,
City of Kinston Charter Amendment,
http://results.enr.clarityelections.com/NC/Lenoir/7991/14086/en/summary.html (last visited Aug.
13, 2010) (Exhibit B); Chris Lavender, Kinston OK’s Nonpartisan Vote, Kinston Free Press,
Nov. 5, 2008, http://www.kinston.com/common/printer/view.php?db=kfpress&id=50795 (last
visited Aug. 13, 2010) (Exhibit C).
RESPONSE: Defendant does not dispute these facts.
¶2.
Nonpartisan elections are used by 532 out of 541 cities in North Carolina. See Robert
P. Joyce, Elections, 2007, at 4, in County and Municipal Government in North Carolina (David
M. Lawrence ed., UNC-Chapel Hill Sch. of Gov., 2007), http://www.sog.unc.edu/pubs/cmg/ (last
visited Aug. 13, 2010) (Exhibit D).
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent these facts are deemed material,
Defendant does not dispute that these are the numbers reported in the study published by the
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Institute of Government at the University of North Carolina, Chapel Hill.
¶3.
The Kinston referendum received roughly 64% of the vote. See Exhibit B.
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent these facts are deemed material,
Defendant does not dispute that 64% of voters voted to approve the referendum.
¶4.
Kinston’s electorate is “overwhelmingly Democratic.” See Letter from Loretta King,
Acting Assistant Attorney General, Civil Rights Division, U.S. Dep’t of Justice, to James P.
Cauley III, Kinston City Attorney at 2 (Aug. 17, 2009),
http://www.justice.gov/crt/voting/sec_5/pdfs/1_081709.pdf (last visited Aug. 13, 2010) (Exhibit
E).
RESPONSE: Although not disputed, Defendant disputes that this paragraph states facts
that are material to the issues to be decided on summary judgment.
¶5.
Proponents of the referendum argued that a [sic] nonpartisan elections would open the
political system to a broader range of views. See Hilary Greene, Letter to the Editor,
Nonpartisan Elections In Kinston Will Help City Be Progressive, Kinston Free Press, Oct. 24,
2008, http://www.kinston.com/ common/printer/view.php?db=kfpress&id=50544 (last visited
Aug. 13, 2010) (Exhibit F); Stephen LaRoque, Letter to the Editor, Sign Bipartisan Petition on
Election Day, Kinston Free Press, May 3, 2008,
http://www.kinston.com/common/printer/view.php?db=kfpress&id=46233 (last visited Aug. 13,
2010) (Exhibit G).
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent these facts are deemed material,
Defendant asserts that paragraph 5 contains statements characterizing the contents of letters to
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the editor concerning the Kinston referendum. The letters, which speak for themselves, represent
the views of their authors only, one of whom is a litigant before this Court.
¶6.
Blacks constituted approximately 64.6% of Kinston’s registered voters at the time of
the referendum. Exhibit E at 1.
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent these facts are deemed material,
Defendant does not dispute that this statement was true at the time the city of Kinston submitted
the results of the referendum for Section 5 review.
¶7.
The referendum passed in 5 of the 7 precincts in Kinston where blacks were a majority
of voters. See Lenoir County Board of Elections, 2008 General Election, Official Results, Detail
XLS, Precinct Level Details For Election Results, at Sheet 41,
http://results.enr.clarityelections.com/NC/Lenoir/ 7991/14086/en/reports.html (last visited Aug.
13, 2010) (Exhibit H); Facsimile from Lenoir County Board of Elections to Michelle Scott,
Associate Counsel, Center for Individual Rights (Aug. 12, 2010) (containing VR Statistics by
Precinct) (Exhibit I).
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent these facts are deemed material,
Defendant does not dispute that the change in the city’s charter won majority support in five of
the seven precincts in Kinston where blacks were a majority of the registered voters. Defendant
disputes this statement insofar as it implies that a majority of black voters supported the
referendum. Plaintiffs have provided no evidence that black voters were a majority of the
persons casting ballots in the charter referendum in those precincts, and no evidence as to the
degree of support for the change among black voters who voted on the charter amendment in
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those precincts. Plaintiffs have not presented any statistical analysis on racial voting patterns
similar to those that courts typically rely upon when determining a particular racial group’s level
of support. See, e.g., Thornburg v. Gingles, 478 U.S. 30 (1986).
The Justice Department denied preclearance for Kinston’s nonpartisan-elections
¶8.
referendum in a letter dated August 17, 2009. See Exhibit E.
RESPONSE: Defendant does not dispute these facts.
The Justice Department’s sole basis for objecting was “that the elimination of party
¶9.
affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice.” Id.
at 2.
RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent the facts are deemed material,
Defendant asserts that paragraph 9 contains statements characterizing a portion of the content of
the Attorney General’s objection letter to Kinston’s proposed change to non partisan elections.
Defendant does not dispute that the quoted passage is found in the objection letter. Defendant
disputes the facts contained in paragraph 9 insofar as they assert that the factor contained in the
quoted passage was the only factor considered by the Attorney General in making his
determination. The letter speaks for itself as to the diverse factors considered by the Attorney
General in determining that Kinston had not met its burden under Section 5 of showing that the
change was not retrogressive.
¶10.
It reasoned that, “given a change [to] non-partisan elections, black preferred
candidates will receive fewer white cross-over votes,” because they could no longer depend on
“either [an] appeal to [Democratic] party loyalty or the ability [of Democratic voters] to vote a
straight [party-line] ticket.” Id.
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RESPONSE: Defendant disputes that this paragraph states facts that are material to the
issues to be decided on summary judgment. To the extent the facts are deemed material,
Defendant does not dispute that the quoted passage is found in the objection letter from the
Acting Assistant Attorney General attached as Exh. 2 to Def.’s Mot. For Summ. J. The letter,
however, speaks for itself as to the diverse factors considered by the United States in determining
that Kinston had not met its burden of showing that the change was not retrogressive.
¶11.
The legislative record reveals that, when Congress originally enacted Section 5 as
part of the Voting Rights Act of 1965, “unconstitutional discrimination was rampant” in covered
jurisdictions. See Nw. Austin Municipal Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2511 (2009).
RESPONSE: Defendant does not dispute that the quoted passage is found in the cited
court decision but disputes that the above statement provides a complete and accurate account of
the legislative record before Congress in 2006. The Supreme Court’s opinion and the legislative
record as a whole speak for themselves as to the evidence before Congress when it reauthorized
Section 5 of the Voting Rights Act in 2006.
¶12.
The legislative record reveals that, in 1965, the average registration rate for black
voters was only 29.3% in the seven original covered jurisdictions. S. Rep. No. 109-295, at 26
(2006) (views of Sen. Cornyn & Coburn).
RESPONSE: Defendant does not dispute that the above statement cites the average
registration rate for black voters reported in the additional views of Senators Cornyn and Coburn
attached to the report of the Senate Judiciary Committee. The legislative record as a whole
speaks for itself.
¶13.
The legislative record reveals that, in 1965, “registration of voting-age whites ran
roughly 50 percentage points or more ahead of [black registration]” in several covered States.
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See Nw. Austin, 129 S. Ct. at 2525 (Thomas, J., concurring in the judgment in part and dissenting
in part).
RESPONSE: Defendant does not dispute that the quoted passage is found in the opinion
of Justice Thomas, concurring in the judgment in part and dissenting in part. The quoted passage
is also found in the majority opinion, 129 S. Ct. at 2511. The Supreme Court’s opinion and the
legislative record as a whole speak for themselves.
¶14.
The legislative record reveals that, in North Carolina in 1965, 46.8% of eligible non-
whites were registered to vote, whereas 96.8% of whites were registered. See 2 Voting Rights
Act: Evidence of Continued Need, Hearing Before the Subcomm. on the Constitution of the H.
Comm. on the Judiciary, 109th Cong. (2006) (“Evidence of Continued Need”) at 2355
(submitting Edward Blum, An Assessment of Voting Rights Progress in North Carolina
(American Enterprise Institute, 2006) (“AEI N.C.”) at 4).
RESPONSE: Defendant does not dispute that these numbers were cited by testimony in
the legislative record as an unofficial estimate of the registration by race for North Carolina as of
November, 1964, but asserts that these estimates are only available on a statewide basis. The
figure purports to be representative for both covered and non-covered counties, and is thus not a
material fact. Moreover, the legislative record as a whole speaks for itself. Defendant further
asserts that because this is a facial challenge only, facts that are applicable to North Carolina are
not material.
¶15.
The legislative record reveals that, when Congress extended and expanded Section 5
in 2006, “[b]latantly discriminatory evasions of federal decrees [had become] rare.” See Nw.
Austin, 129 S. Ct. at 2511.
RESPONSE: Defendant does not dispute that the quoted passage is found in the cited
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court decision but disputes that the above statement provides a complete and accurate account of
the legislative record before Congress in 2006. The Supreme Court’s opinion and the legislative
record as a whole speak for themselves as to the evidence before Congress when it reauthorized
Section 5 of the Voting Rights Act in 2006.
¶16.
The legislative record reveals that, in 2004, the voter registration rate among blacks in
covered jurisdictions was over 68.1%, S. Rep. No. 109-295, at 26 (views of Sen. Cornyn &
Coburn), and “[v]oter turnout and registration rates [between blacks and whites in covered
jurisdictions] … approach[ed] parity,” see Nw. Austin, 129 S. Ct. at 2511; see also H.R. Rep. No.
109-478, at 12-13 (2006).
RESPONSE: Defendant does not dispute that the above statement cites the average
registration rate for black voters reported in the additional views of Senators Cornyn and Coburn
attached to the report of the Senate Judiciary Committee, but notes that the percentage is an
estimate calculated from sample data collected biennially and may not provide an accurate
measure of racial disparities in voter registration. Further, these data understate the disparities
because they compare registration and turnout rates for blacks to rates for whites, including
Hispanics, rather than for white non-Hispanics. See Def. SMF ¶ 42. Including Hispanic
registration and turnout in the white registration and turnout rate lowers the white rate because of
very low Hispanic registration and turnout. NAMUDNO v. Mukasey, 573 F. Supp. 2d 221, 248
(D.D.C. 2008), relying on Understanding the Benefits & Costs of Section 5 Pre-Clearance,
Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (“Benefits & Costs”) at 106,
131-32 (Supplemental Testimony of Nathaniel Persily). See also Def. SMF ¶ 42. Moreover,
these estimates are only available on a statewide basis. Thus the figure for North Carolina, for
example, purports to be representative for both covered and non-covered counties and is
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therefore not a material fact. As to the passage quoted from Nw. Austin, 129 S. Ct. at 2511,
Defendant does not dispute that the quoted passage is found in the cited court decision but
disputes that the above statement provides a complete and accurate account of the legislative
record before Congress in 2006. The Supreme Court’s opinion and the legislative record as a
whole speak for themselves as to the evidence before Congress when it reauthorized Section 5 of
the Voting Rights Act in 2006.
¶17.
The legislative record reveals that in five covered States, registration and turnout was
higher for blacks than whites in 2004, and in Louisiana and South Carolina, the gap between
black and white voters was lower than the national average. S. Rep. No. 109-295, at 11.
RESPONSE: Defendant does not dispute that the above statement correctly cites the
average registration and turnout rates for black voters in the report of the Senate Judiciary
Committee, but notes that the percentage is an estimate calculated from sample data collected
biennially and may not provide an accurate measure of racial disparities in voter registration.
Moreover, these data understate the disparities because they compare registration and turnout
rates for blacks to rates for whites, including Hispanics, rather than for white non-Hispanics. See
Def. SMF ¶ 42. Including Hispanic registration and turnout in the white rates lowers the white
registration and turnout rates because of very low Hispanic participation. See id. When the
Hispanic rate is separated from the white registration rate, 2004 black registration and turnout
rates in the covered States exceed the rates for whites only in Mississippi. See Def. SMF ¶ 43.
Additionally, the legislative record as a whole speaks for itself.
¶18.
The legislative record reveals that in North Carolina in 2004, black registration was
higher than white registration (70.4% versus 69.4%), and black turnout was higher than white
turnout (63.1% versus 58.1%). Id.
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RESPONSE: Defendant does not dispute that the above statement cites the average
registration and turnout rates for black voters in the report of the Senate Judiciary Committee,
but notes that the percentage is an estimate calculated from sample data collected biennially and
may not provide an accurate measure of racial disparities in voter registration. These data,
however, understate the disparities because they compare registration and turnout rates for blacks
to rates for whites, including Hispanics, rather than for white non-Hispanics. See Def. SMF ¶ 42.
Additionally, these estimates are only available on a statewide basis. The figure for North
Carolina does not distinguish between covered and non-covered counties and is therefore not a
material fact. Defendant avers that the legislative record as a whole speaks for itself. Defendant
further asserts that because this is a facial challenge only, facts regarding application of Section 5
to North Carolina are not material.
¶19.
The legislative record reveals that “minority candidates [now] hold office at
unprecedented levels.” See Nw. Austin, 129 S. Ct. at 2511.
RESPONSE: Defendant does not dispute that the quoted passage is found in the cited
court decision but denies that the above statement provides a complete and accurate account of
the legislative record before Congress in 2006. The Supreme Court’s opinion and the legislative
record as a whole speak for themselves as to the evidence in the record before Congress when it
reauthorized Section 5 of the Voting Rights Act in 2006.
¶20.
The legislative record reveals that, in the originally covered States, the number of
minorities serving in elected office has increased over 1,000% since 1965. See H.R. Rep. No.
109-478, at 18.
RESPONSE: Defendant does not dispute that the above statement correctly cites the rate
of increase for minority officeholders since 1965 provided in the report of the House Judiciary
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Committee. Defendant asserts that the legislative record as a whole speaks for itself.
¶21.
The legislative record reveals that, while there were only 40 black elected officials in
North Carolina in 1969, the State elected almost 500 black officers in 2001. See 2 Evidence of
Continued Need at 2374 (submitting AEI N.C. at 23).
RESPONSE: Defendant does not dispute that the data indicating there were 40 black
elected officials in 1969 and 491 black elected officials in 2001 in North Carolina are included in
the cited testimony in the legislative record. The reported figure is for the state of North
Carolina, however, and includes elected officials from both covered and non-covered counties.
Thus the figure is not a material fact. Defendant asserts that the legislative record as a whole
speaks for itself. Defendant further asserts that because this is a facial challenge only, facts
regarding application of Section 5 to North Carolina are not material.
¶22.
The legislative record reveals that only 753 objections nationwide were interposed
between 1982 and 2005. H.R. Rep. No. 109-478, at 22.
RESPONSE: Defendant does not dispute that 753 Section 5 objections were interposed
in covered jurisdictions from the beginning of 1982 through the end of 2005, as reported by the
House Judiciary Committee. Defendant asserts that the legislative record as a whole speaks for
itself.
¶23.
The legislative record reveals that these 753 objections amount to only .70% of the
total number of submissions filed. See Understanding the Benefits & Costs of Section 5 PreClearance, Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) (“Benefits &
Costs”) at 159 (submission of Edward Blum & Lauren Campbell, Assessment of Voting Rights
Progress in Jurisdictions Covered Under Section Five of the Voting Rights Act (American
Enterprise Institute, 2006) (“AEI C.J.”) at 10).
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RESPONSE: Defendant does not dispute this data is included in the cited testimony in
the legislative record. Defendant asserts that the legislative record as a whole speaks for itself.
¶24.
The legislative record reveals that many of these objections were based on
interpretations of Section 5 that were subsequently rejected by the Supreme Court. S. Rep. No.
109-295, at 28 (views of Sen. Cornyn & Coburn).
RESPONSE: Defendant disputes that this statement is expressed in the additional views
of Senators Cornyn and Coburn in the cited passage or that the passage cited provides any
support for this assertion. Defendant further disputes as ambiguous and undefined the claim that
“many” of the 753 objections were based on subsequently rejected Section 5 interpretations. The
Supreme Court decisions and the legislative record as a whole speak for themselves.
¶25.
The legislative record reveals that the rate of objections has dramatically decreased.
Id. at 27-28.
RESPONSE: The facts contained in paragraph 25 contain a characterization of the
legislative record that is ambiguous and does not accurately and completely describe the
evidence regarding Section 5 objections in the record before Congress in 2006. Defendant
further asserts that the legislative record as a whole speaks for itself.
¶26.
The legislative record reveals that the objection rate for submissions filed between
1965 and 1970 was over 25 times higher than the objection rate for submissions filed between
1996 and 2005. See Benefits & Costs at 159 (submission of AEI C.J. at 10).
RESPONSE: The facts contained in paragraph 26 represent an incomplete description
of the legislative record regarding Section 5 objections in the record before Congress in 2006.
Defendant asserts that the legislative record as a whole speaks for itself.
¶27.
The legislative record reveals that the absolute number of objections has diminished
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over the past three decades. S. Rep. No. 109-295, at 27 (views of Sen. Cornyn & Coburn).
RESPONSE: Defendant does not dispute that the above statement may be found in the
additional views of Senators Cornyn and Coburn attached to the report of the Senate Judiciary
Committee. Defendant disputes, however, that the facts contained in paragraph 27 are complete
and unambiguous. The legislative record as a whole speaks for itself.
¶28.
The legislative record reveals that, nationwide, 399 objections were interposed during
the 1980’s, 366 during the 1990’s, and only 44 during the 2000’s. In North Carolina, 34
objections were interposed during the 1980’s, 13 during the 1990’s, and only 4 during the
2000’s. H.R. Rep. No. 109-478, at 22; U.S. Dep’t of Justice, Civil Rights Division, Section 5
Objection Determinations, http://www.justice.gov/crt/voting/sec_5/obj_activ.php.
RESPONSE: Defendant does not dispute that the above statement accurately
summarizes the number of objections per decade interposed in covered jurisdictions, as reported
by the House Judiciary Committee and on the website of the Civil Rights Division. Defendant
asserts that the legislative record as a whole speaks for itself. Defendant further asserts that
because this is a facial challenge only, facts regarding application of Section 5 to North Carolina
are not material.
¶29.
The legislative record reveals only six published cases between 1982 and 2006 that
ended in a court ruling or consent decree finding that a covered jurisdiction had committed
unconstitutional discrimination against minority voters, and an equal number of cases involving
such discrimination against white voters. S. Rep. No. 109-295, at 13, 65-68).
RESPONSE: Defendant does not dispute that the above statement is based on a
summary of cases prepared by staff members of the Senate Judiciary Committee and found in the
appendices of the Senate Report. Defendant avers that the summary of cases provided by the
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staff of the Senate Judiciary Committee on which the above statement relies is an incomplete
reflection of both the legislative record as it existed when Section 5 was reauthorized in 2006 and
the evidence of discrimination against minority voters found in the case law. For example, the
staff summary includes as one of the six cases documenting intentional discrimination the
consent decree in Dillard v. City of Foley, 926 F. Supp. 1053 (M.D. Ala. 1995), but ignores the
opinion in Dillard v. Crenshaw County, 640 F. Supp. 1347 (M.D. Ala. 1986), where the same
judge found that the Alabama legislature “has engaged in a pattern and practice of using at-large
elections as an instrument of race discrimination.” Id. at 1361. The Dillard litigation ultimately
resulted in consent decrees in which 176 Alabama jurisdictions agreed to adopt racially fair
election systems. McCrary Declaration, Paragraph 17 (attached as Exh. 3 to Def.’s Mot. For
Summ. J.). Defendant asserts that the legislative record as a whole speaks for itself.
¶30.
The legislative record reveals that, if Section 5 coverage in 2006 had been based on
an application of the Section 5 coverage formula to data from the elections in 2000 and 2004, all
of the States previously covered in full would no longer be covered and Hawaii would be the
only state entirely covered. See 152 Cong. Rec. H5179 (daily ed. July 13, 2006) (Rep.
Norwood).
RESPONSE: Defendant disputes that the facts contained in paragraph 30 represent a
complete and accurate description of these data submitted by Rep. Norwood. Defendant asserts
that the legislative record as a whole speaks for itself.
¶31.
The legislative record reveals that, if Section 5 coverage in 2006 had been based on
an application of the Section 5 coverage formula to data from the elections in 2000 and 2004, a
substantially different set of counties and townships would be covered (and not covered). See S.
Rep. No. 109-295, at 33, 36-53 (views of Sen. Cornyn & Coburn).
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RESPONSE: Defendant does not dispute that the 17-page table included in the
additional views of Senators Cornyn and Coburn suggests that a different set of counties and
townships may be covered (and not covered) by applying the original coverage formula to data
from recent presidential elections. Defendant asserts that the legislative record as a whole speaks
for itself.
¶32.
The legislative record “suggests that there is more similarity than difference” between
covered and non-covered jurisdictions. Nw. Austin, 129 S. Ct. at 2512.
RESPONSE: The Attorney General admits that the quoted passage is found in the cited
court decision but disputes that the above statement provides a complete and accurate account of
the legislative record before Congress in 2006. The Supreme Court’s opinion and the legislative
record as a whole speak for themselves.
¶33.
The legislative record reveals that, in 2004, the black registration rate was actually
higher in covered jurisdictions than non-covered jurisdictions (68.1% versus 62.2%). S. Rep.
No. 109-295, at 26 (views of Sen. Cornyn & Coburn).
RESPONSE: Defendant does not dispute that the above statement accurately
summarizes the average registration rate for black voters in covered jurisdictions, as compared
with non-covered jurisdictions, reported in the additional views of Senators Cornyn and Coburn
attached to the report of the Senate Judiciary Committee, but notes that the percentages on which
the Senators rely are estimates calculated from sample data collected biennially and may not
provide an accurate measure of racial disparities in voter registration. These estimates are only
available on a statewide basis. Thus the figure for North Carolina, for example, purports to be
representative for both covered and non-covered counties. Moreover, Defendant asserts that the
legislative record as a whole speaks for itself.
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¶34.
The legislative record reveals that, in 2004, the average black turnout rates were
identical in covered and non-covered jurisdictions (60%). Id.
RESPONSE: Defendant does not dispute that the above statement accurately
summarizes the average turnout rate for black voters in covered jurisdictions, as compared with
non-covered jurisdictions, reported in the additional views of Senators Cornyn and Coburn
attached to the report of the Senate Judiciary Committee, but notes that the percentages on which
the Senators rely are estimates calculated from sample data collected biennially and may not
provide an accurate measure of racial disparities in voter turnout. Moreover, these estimates are
only available on a statewide basis. Thus the figure for North Carolina, for example, purports to
be representative for both covered and non-covered counties. Defendant asserts that the
legislative record as a whole speaks for itself.
¶35.
The legislative record reveals that, in North Carolina in 2004, black registration was
higher than the national average (70.4% versus 64.3%). Id. at 11 (Report).
RESPONSE: The Attorney General admits that the above statement accurately cites the
average registration rate for black voters in the report of the Senate Judiciary Committee, but
notes that the percentage is an estimate calculated from sample data collected biennially and may
not provide an accurate measure of racial disparities in voter registration. Moreover, these
estimates are only available on a statewide basis. Thus the figure for North Carolina purports to
be representative for both covered and non-covered counties. Defendant asserts that the
legislative record as a whole speaks for itself. Defendant further asserts that because this is a
facial challenge only, facts regarding application of Section 5 to North Carolina are not material.
¶36.
The legislative record reveals that, in North Carolina in 2004, black turnout was
higher than the national average (63.1% versus 56.1%). Id.
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RESPONSE: The Attorney General admits that the above statement accurately cites the
average turnout for black voters in the report of the Senate Judiciary Committee, but notes that
the percentage is an estimate calculated from sample data collected biennially and may not
provide an accurate measure of racial disparities in voter turnout. Moreover, these estimates are
only available on a statewide basis. Thus the figure for North Carolina purports to be
representative for both covered and non-covered counties. Defendant asserts that the legislative
record as a whole speaks for itself. Defendant further asserts that because this is a facial
challenge only, facts regarding application of Section 5 to North Carolina are not material.
¶37.
The legislative record reveals that, in 2004, “the racial gap in voter registration and
turnout [was] lower in the States originally covered by § 5 than it is nationwide.” See Nw.
Austin, 129 S. Ct. at 2512 (citing AEI C.J. at 3-6).
RESPONSE: Defendant does not dispute that the quoted passage is found in the cited
court decision but disputes that the above statement provides a complete and accurate account of
the legislative record before Congress in 2006. Defendant notes that the percentages relied upon
are based on an estimate calculated from sample data collected biennially and may not provide
an accurate measure of racial disparities in voter turnout. Moreover, these data understate the
disparities because they compare registration and turnout rates for blacks to rates for whites,
including Hispanics, rather than for white non-Hispanics. See Def. SMF ¶ 42. Including
Hispanic registration and turnout in the white rates lowers the white registration and turnout rates
because of very low Hispanic participation. See id. The Supreme Court’s opinion and the
legislative record as a whole speak for themselves as to the evidence before Congress when it
reauthorized Section 5 of the Voting Rights Act in 2006.
¶38.
The legislative record reveals that, in North Carolina in 2004, black registration rates
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were 1% higher than white registration rates, whereas, nationwide, whites registered at a rate
3.6% higher than blacks. S. Rep. No. 109-295, at 11.
RESPONSE: Defendant does not dispute that the above statement cites the 2004
registration rate for North Carolina’s black voters found in the report of the Senate Judiciary
Committee, but notes that the percentage is an estimate calculated from sample data collected
biennially and may not provide an accurate measure of racial disparities in voter registration.
These data understate the disparities because they compare registration rates for blacks to rates
for whites, including Hispanics rather than for white non-Hispanics. See Def. SMF ¶ 42.
Moreover, these estimates are only available on a statewide basis. Thus the figure for North
Carolina, for example, purports to be representative for both covered and non-covered counties.
Defendant asserts that the legislative record as a whole speaks for itself. Defendant further
asserts that because this is a facial challenge only, facts regarding application of Section 5 to
North Carolina are not material.
¶39.
The legislative record reveals that, in North Carolina in 2004, black turnout was 5%
higher than white turnout, whereas, nationwide, whites voted at a rate 4.2% higher than blacks.
Id.
RESPONSE: The Attorney General admits that the above statement accurately cites the
2004 turnout rate for North Carolina’s black voters found in the report of the Senate Judiciary
Committee, but notes that the percentage is an estimate calculated from sample data collected
biennially and may not provide an accurate measure of racial disparities in voter turnout. These
data understate the disparities because they compare turnout rates for blacks to rates for whites,
including Hispanics, rather than for white non-Hispanics. See Def. SMF ¶ 42. Moreover, these
estimates are only available on a statewide basis. Thus the figure for North Carolina, for
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example, purports to be representative for both covered and non-covered counties. Defendant
asserts that the legislative record as a whole speaks for itself. Defendant further asserts that
because this is a facial challenge only, facts regarding application of Section 5 to North Carolina
are not material.
¶40.
The legislative record reveals that the percentage of black elected officials was higher
in covered States than in non-covered States in 2000, even when the former’s higher black
population was taken into consideration. See Benefits & Costs at 153, 157 (submission of AEI
C.J. at 4, 8).
RESPONSE: Defendant disputes the above statement as ambiguous and incomplete. If
the claim is that the percentage of elected officials who are black was higher in covered states
than in non-covered states, then the table cited indicates that the percentages for covered states
are higher than for the three non-covered states for which data are included as well as the
national average. In each of the states for which data are provided, both covered and noncovered, the percentage of elected officials who are black is substantially lower than the black
percentage of the voting age population. See Benefits & Costs at 157. Defendant further asserts
that the legislative record as a whole speaks for itself.
¶41.
The legislative record reveals that, in North Carolina, blacks were 20% of the voting
population and held 8.56% of elected offices in 2000. In contrast, blacks were 11.4% of the
voting population nationwide and held only 1.76% of elected offices. Id. at 157 (submission of
AEI C.J. at 8).
RESPONSE: Defendant does not dispute that the percentages cited in the above
statement are found in the table cited in the testimony in the legislative record, but avers that the
percentage of elected officials who are black is substantially lower than the black percentage of
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the voting age population, both in North Carolina and nationwide. See Benefits & Costs at 157.
The United States further avers that the statewide figures for North Carolina reflect the evidence
for both covered and non-covered counties. Defendant asserts that the legislative record as a
whole speaks for itself. Defendant further asserts that because this is a facial challenge only,
facts regarding application of Section 5 to North Carolina are not material.
¶42.
The legislative record reveals there were slightly more Section 2 cases with judicial
findings of liability in non-covered jurisdictions compared to covered jurisdictions between 1982
and 2006 (40 versus 39), and an identical number of Section 2 cases finding unconstitutional
discrimination against minority voters (6 versus 6). S. Rep. No. 109-295, at 13, 65, 76. And this
was so, even though the legislative record reveals that blacks disproportionately live in covered
jurisdictions. See The Continuing Need for Section 5 Pre-Clearance, Hearing Before the S.
Comm. on the Judiciary, 109th Cong. (2006) at 157 n.1 (submission of Ronald Keith Gaddie).
RESPONSE: Defendant does not dispute that the above facts were provided to
Congress through Professor Gaddie’s testimony. Defendant does dispute that this testimony
provides a complete and accurate description of the legislative record concerning the number of
Section 2 cases in covered versus non covered jurisdictions. Congress also had before it a study
of reported decisions by Ellen Katz at the University of Michigan that identified 64 Section 2
cases in covered jurisdictions in which plaintiffs were successful. See Def. SMF ¶ 45. Looking
at jurisdictions not covered by Section 5, the University of Michigan study found only 50
successful reported outcomes for minority voters (44 percent of the 114 successful cases
nationwide). See Def. SMF ¶ 47. A different study before Congress, the National Commission
report, Protecting Minority Voters, found a total of 653 cases resolved in a manner favorable to
minority voters in covered jurisdictions where there were no reported decisions. See Def. SMF ¶
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46. Looking at unreported decisions, research demonstrates 99 Section 2 settlements in noncovered jurisdictions, as compared with the 587 in areas covered by Section 5 identified in the
National Commission report. See Def. SMF ¶ 48. In its reauthorization, Congress heard
testimony concerning at least 61 of these 99 unreported successful settlements in noncovered
jurisdictions. Thus the record before Congress shows that 91% of all Section 2 cases settled
favorably for minority voters were in covered jurisdictions. See Def. SMF ¶ 50. Combining all
successful outcomes in both reported and unreported cases -- including those on the record
before Congress and those identified in the study reported in the McCrary Declaration attached
as Exhibit 1 hereto -- shows that 81 percent of all successful outcomes in Section 2 cases
occurred in covered jurisdictions. See Def. SMF ¶ 51.
¶43.
The legislative record reveals only two reported cases in North Carolina, between
1982 and 2006, finding violations of Section 2. Both originated in non-covered counties. See S.
Rep. No. 109-295, at 80; see also Ellen Katz & The Voting Rights Initiative, VRI Database
Master List (2006), http://sitemaker.umich.edu/votingrights/files/masterlist.xls (last visited Aug.
13, 2006).
RESPONSE: Defendant does not dispute that the staff of the Senate Judiciary
Committee identified two reported cases in North Carolina between 1982 and 2006 in which
courts found violations of Section 2, but disputes the remainder of the above claim because one
of the two, Thornburg v. Gingles, was a statewide redistricting case. Defendant asserts that the
legislative record as a whole speaks for itself. Defendant further asserts that because this is a
facial challenge only, facts regarding application of Section 5 to North Carolina are not material.
¶44.
The legislative record reveals that, between 1982 and 2005, there were more Section
2 cases finding legally significant levels of racially polarized voting in non-covered jurisdictions
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(47) than in covered ones (44). See 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. (2005) at 981 (submitting Ellen Katz et al., Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since 1982 (Voting Rights Initiative,
Univ. of Mich. Law Sch., 2005) at 15).
RESPONSE: Defendant does not dispute that the University of Michigan study cited
here identified 44 reported decisions that made findings that voting patterns were racially
polarized in covered jurisdictions, and 47 in non-covered jurisdictions. The University of
Michigan study also notes that in 23 of these reported opinions the ultimate outcome of the case
was unfavorable for minority plaintiffs. Of those 23 decisions, nearly 70% occurred in noncovered jurisdictions. 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. (2005) at 981 (submitting Ellen Katz et al., Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since 1982 (Voting Rights Initiative,
Univ. of Mich. Law Sch., 2005) at 15). Defendant asserts that the legislative record as a whole
speaks for itself.
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Date: August 1, 2011
RONALD C. MACHEN, JR.
United States Attorney
District of Columbia
Respectfully submitted,
THOMAS E. PEREZ
Assistant Attorney General
SAMUEL R. BAGENSTOS
JULIE A. FERNANDES
Deputy Assistant Attorneys General
/s/ Richard Dellheim
T. CHRISTIAN HERREN, JR.
DIANA K. FLYNN
RICHARD DELLHEIM (lead counsel)
LINDA F. THOME
ERNEST A. MCFARLAND
JARED M. SLADE
JUSTIN WEINSTEIN-TULL
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Avenue, N.W.
NWB-Room 7264
Washington, D.C. 20530
Telephone: (202) 305-1734
Facsimile: (202) 307-3961
22
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE,
ANTHONY CUOMO, JOHN NIX,
KLAY NORTHRUP, LEE RAYNOR,
and KINSTON CITIZENS FOR
NONPARTISAN VOTING,
)
)
)
)
)
)
Plaintiffs
)
)
v.
)
)
ERIC H. HOLDER, JR., in his official capacity as )
Attorney General Of The United States,
)
)
Defendant
)
)
Civil Action No. 1:10-0561 (JDB)
Judge John D. Bates
DECLARATION OF ROBERT S. BERMAN
I, Robert S. Berman, pursuant to 28 U.S.C. 1746, declare as follows:
1. I am an attorney who currently serves as a Deputy Chief in the Voting Section of the Civil
Rights Division of the United States Department of Justice. I have supervisory responsibility
for the administrative review of voting changes submitted to the Attorney General pursuant
to Section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c. I have been employed as an
attorney in the Department of Justice for 33 years with over 20 years of service in the Voting
Section.
2. I have personal knowledge of the information contained in this declaration based upon my
review of relevant records maintained by the Department of Justice, as well as my
professional experience with, and personal knowledge of, Department of Justice policies and
procedures.
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Kinston, North Carolina
3. In February 2009, the City of Kinston, North Carolina submitted to the Attorney General for
Section 5 review a proposed change from partisan to nonpartisan elections for municipal
offices that had been adopted by the City’s electorate by referendum in November 2008.
Submission Letter dated February 2, 2009 (Attachment A).
4. On August 17, 2009, the Attorney General interposed an objection to the proposed change.
Objection Letter dated August 17, 2009 (Attached as Exh. 2 to Def.’s Mot. For Summ. J.).
Administrative Review of Section 5 Submissions
5. The Attorney General endeavors to comply with Congress’s intent that the administrative
review of voting changes submitted pursuant to Section 5 be an efficient, convenient, and
affordable alternative to seeking a declaratory judgment from a three-judge court in the
United States District Court for the District of Columbia.
6. To that end, the Attorney General has a long-standing policy of providing information to
covered jurisdictions concerning the administrative review process by publishing the
Procedures for the Administration of Section 5 of the Voting Rights Act of 1965 in the Code
of Federal Regulations. 28 C.F.R. part 51. These procedures were first promulgated in 1971,
36 Fed. Reg. 18186 (Sept. 10, 1971), and are revised when necessary. See, e.g., 75 Fed. Reg.
33205 (June 11, 2010); 76 Fed. Reg. 21239 (Apr. 15, 2011).
7. The Attorney General also has created a website that provides information concerning the
Section 5 process (http://www.usdoj.gov/crt/voting/).
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8. The Attorney General provides a toll-free telephone number for submitting officials to
contact Department of Justice staff members, who are available to guide those officials
through the submission process.
9. The Attorney General’s procedures have always provided covered jurisdictions with the
option to request expedited consideration of voting changes. 28 C.F.R. § 51.34. The
Attorney General makes every effort to accommodate covered states and local jurisdictions
that experience emergencies prior to elections that require expedited consideration of voting
changes. Situations calling for expedited consideration include events such as fires or natural
disasters that affect which polling places can be used in an election, or pre-election litigation
that threatens to stop the conduct of an election. In appropriate circumstances, the Attorney
General has made determinations within 24 hours or less of receipt of a submission.
10. The Attorney General also allows covered jurisdictions to send Section 5 submissions by
overnight delivery.
11. For some years, the Department has allowed jurisdictions to make submissions and submit
additional information on pending Section 5 submissions by telefacsimile.
12. The Attorney General allows jurisdictions to make Section 5 submissions through a webbased application (http://wd.usdoj.gov/crt/voting/sec_5/evs/).
13. The Attorney General allows jurisdictions to submit additional information on pending
Section 5 submissions by electronic mail.
Termination of Coverage Under the Act’s Special Provisons
14. A jurisdiction may seek to terminate coverage under Section 4 of the Act (“bail out”), and
thereby be relieved of the responsibility of complying with Section 5. 42 U.S.C.
1973b(a)(1).
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15. Since 1965, 581 (6.2%) of the approximately 943 county, parish, and township-level
jurisdictions that conduct voter registration and were originally covered by Section 4, have
successfully bailed out and maintained their bailed out status. One state and several other
jurisdictions also successfully bailed out, but were later re-covered by new coverage
determinations or by new court findings. Overall, since 1965, there have been 50 bailout
cases filed under Section 4(a). The United States consented to bailout in 42 of those cases,
with bailout granted in 38 (in one of these cases bailout was later rescinded); in 3 cases, the
United States opposed bailout and, in each instance, the court denied the request; in 5 cases,
the jurisdiction dismissed its bailout action voluntarily after the United States opposed the
bailout request; and in 4 cases, proposed consent decrees are currently awaiting Court
approval.
16. Since the new bailout standard, enacted in 1982, became effective in 1984, the United States
has consented to bailout in 23 cases; in each instance the court granted the request. This
includes 18 cases involving county level jurisdictions (with 51 included subjurisdictions) and
5 cases involving smaller subjurisdictions. Hence, a total of 74 jurisdictions have been
granted bailout since 1984. 2
1
In Shelby County, the United States asserted that 57 of the original 943 jurisdictions had successfully bailed out.
See Mem. Of Law In Opp. To Pl.’s Mot. For Summ. J. And In Support Of Def.’s Mot. For Summ. J. at 72, Shelby
County v. Holder, Civ. No. 10-651 (D.D.C, filed Nov. 15, 2010, ECF No. 53). The correct number is 58.
2
In Northwest Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504, 2516 (2009), the Supreme Court noted
that 17 jurisdictions had bailed out since the August 5, 1984 effective date of the 1982 amendments. For the
following two reasons, however, it is necessary to clarify that finding. First, the source upon which the Court relied
for that number (Appendix to Brief for Jurisdictions That Have Bailed Out as Amici Curia, at 3) failed to list the
bailout obtained by Pulaski County Virginia (Pulaski County, Virginia v. Gonzales, 1:05-cv-1265 (Sept. 27, 2005
D.D.C)). See also, List of Jurisdictions Currently Bailed Out, available at
http://www.justice.gov/crt/about/vot/misc/sec_4.php#bailout. Thus, adding the number of jurisdictions that have
bailed out since the Supreme Court’s Northwest Austin decision to the 18 that had done so before results in a total of
23 jurisdictions that have bailed out under the new standard. Second, that number does not reflect the total number
of other governmental units that existed within the boundaries of the jurisdictions that did obtain the requested
bailout. That total, for the 23 jurisdictions, is 51 included governmental subunits that have also bailed out. (See
Attachment B).
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17. In the 27 years since the new bailout standard became effective in 1984 until the Supreme
Court’s decision in Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 129 S. Ct. 2504, 2513-17
(2009), jurisdictions have sought and the United States consented to and this Court has
granted bailout in 18 cases.
18. Subsequent to the Northwest Austin decision, the Attorney General has consented to, and this
Court has granted, bailout by five smaller, sub-county jurisdictions: the Northwest Austin
Municipal Utility District itself; the City of Kings Mountain, North Carolina; the City of
Sandy Springs, Georgia; the Jefferson County Drainage District Number Seven, Texas; and
Alta Irrigation District, California.
19. Four additional consent decrees consenting to bailout have been filed and are currently
awaiting approval from the United States District Court for the District of Columbia in 2011:
City of Bedford, Virginia, (City of Bedford v. Holder, C.A. No. 1:11-cv-473 (D.D.C.,
proposed consent decree filed June 8, 2011)); City of Manassas Park, Virginia, (City of
Manassas Park v. Holder, C.A. No. 1:11-cv-749 (D.D.C., proposed consent decree filed June
20, 2011)); Rappahannock County, Virginia, (Rappahannock County v. Holder, C.A. No.
1:11-cv-1123 (D.D.C., proposed consent decree filed July 7, 2011)); and Bedford County,
Virginia, (Bedford County v. Holder, C.A. No. 1:11-cv-499 (D.D.C., proposed consent
decree filed July 27, 2011)).
20. Thus, nine proposed consent decrees have been filed in the last two years, five of which have
been entered so far by the district court. In 2011 alone, six proposed consent decrees have
been filed seeking bailout, two of which have been entered by the district court.
21. Subsequent to the Supreme Court’s Northwest Austin decision, two jurisdictions from Texas
have bailed out, becoming the first Texas jurisdictions ever to bail out; the first Georgia
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ATTACHMENT A
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ATTACHMENT B
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Bailout Cases Before August 5, 1984
1. Alaska v. United States, No. 101-66 (D.D.C. Aug. 17, 1966) (U.S. consented to judgment)
(state later partially re-covered based on new coverage determinations after 1970 VRA
amendments, and fully re-covered based on new coverage determinations after 1975 VRA
amendments);
2. Apache County v. United States, 256 F. Supp. 903 (D.D.C. 1966) (Apache, Coconino, and
Navajo Counties) (Arizona) (U.S. consented to judgment) (counties later re-covered based on
new coverage determinations after both 1970 and 1975 VRA amendments);
3. Elmore County v. United States, No. 320-66 (D.D.C. Sept. 22, 1966) (Idaho) (U.S. consented
to judgment) (county later re-covered based on new coverage determinations after 1970 VRA
amendments);
4. Wake County v. United States, No. 1198-66 (D.D.C. Jan. 23, 1967) (North Carolina) (U.S.
consented to judgment);
5. Gaston County v. United States, 288 F. Supp. 678 (D.D.C. 1968), aff'd, 395 U.S. 285 (1969)
(North Carolina) (bailout denied);
6. Nash County v. United States, No. 1702-66 (D.D.C. Sept. 26, 1969) (North Carolina) (county
stipulated to dismissal in wake of Gaston County decision);
7. Alaska v. United States, No. 2122-71 (D.D.C. Mar. 10, 1972) (election districts 8
(Anchorage), 11 (Kodiak), 12 (Aleutian islands), and 16 (Fairbanks-Fort Yukon)) (U.S.
consented to judgment) (state later fully re-covered based on new coverage determinations
after 1975 VRA amendments);
8. New York v. United States, No. 2419-71 (D.D.C. Apr. 13, 1972), aff'd on other grounds sub
nom. NAACP v. New York, 413 U.S. 345 (1973) (Bronx, Kings, and New York Counties)
(U.S. consented to judgment); termination of coverage rescinded (Orders of Jan. 10 and Apr.
30, 1974), aff'd mem. 419 U.S. 888 (1974) (counties re-covered by D.D.C. on motion of U.S.
based on a finding in related case, Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974), that
counties had used discriminatory test or device) (Bronx and Kings Counties were later
covered a second time based on new coverage determinations after 1975 VRA amendments);
9. Virginia v. United States, 386 F. Supp. 1319 (D.D.C. 1974), aff'd, 420 U.S. 901 (1975)
(bailout denied);
10. Yuba County v. United States, No. 75-2170 (D.D.C. May 25, 1976) (California) (Jurisdiction
dismissed action);
11. New Mexico v. United States, No. 76-0067 (D.D.C. July 30, 1976) (Curry, McKinley, and
Otero Counties) (U.S. consented to judgment);
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12. Maine v. United States, No. 75-2125 (D.D.C. Sept. 17, 1976) (Towns of Cadwell, Limestone,
Ludlow, Nashville, Reed, Woodland, Connor, New Gloucester, Sullivan, Winter Harbor,
Chelsea, Sommerville, Carroll, Charleston, Webster, Waldo, Beddington, and Cutler) (U.S.
consented to judgment);
13. El Paso County v. United States, No. 77-0815 (D.D.C. Nov. 8, 1977) (Colorado)
(Jurisdiction dismissed action);
14. Choctaw and McCurtain Counties v. United States, No. 76-1250 (D.D.C. May 12, 1978)
(Oklahoma) (U.S. consented to judgment);
15. Alaska v. United States, No. 78-0484 (D.D.C. May 10, 1979) (Jurisdiction dismissed action);
16. City of Rome v. United States, 472 F. Supp. 221 (D.D.C. 1979), aff'd, 446 U.S. 156 (1980)
(bailout denied);
17. Campbell County v. United States, No. 82-1862 (D.D.C. Dec. 17, 1982) (Wyoming) (U.S.
consented to judgment);
18. Massachusetts v. United States, No. 83-0945 (D.D.C. Sept. 29, 1983) (Towns of Amherst,
Ayer, Belchertown, Bourne, Harvard, Sandwich, Shirley, Sunderland, and Wrentham) (U.S.
consented to judgment);
19. Alaska v. United States, No. 84-1362 (D.D.C. May 1, 1984) (Jurisdiction dismissed action);
20. Connecticut v. United States, No. 83-3103 (D.D.C. June 21, 1984) (Towns of Groton,
Mansfield, and Southbury) (U.S. consented to judgment);
21. Board of County Commissioners v. United States, No. 84-1626 (D.D.C. July 30, 1984) (El
Paso County, Colorado) (U.S. consented to judgment);
22. Waihee v. United States, No. 84-1694 (D.D.C. July 31, 1984) (Honolulu County, Hawaii)
(U.S. consented to judgment); and
23. Idaho v. United States, No. 82-1778 (D.D.C. July 31, 1984) (Elmore County) (U.S.
consented to judgment).
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Bailout Cases After August 5, 1984
1. City of Fairfax v. Reno, No. 97-2212 (D.D.C. Oct. 21, 1997) (including the City of Fairfax
School Board) (Virginia) (U.S. consented to judgment);
2. Frederick County v. Reno, No. 99-941 (D.D.C. Sept. 10, 1999) (including the Frederick
County School Board; the Towns of Middletown and Stephens City; and the Frederick
County Shawneeland Sanitary District) (Virginia) (U.S. consented to judgment);
3. Shenandoah County v. Reno, No. 99-992 (D.D.C. Oct. 15, 1999) (including the Shenandoah
County School Board; the Towns of Edinburg, Mount Jackson, New Market, Strasburg,
Toms Brook, and Woodstock; the Stoney Creek Sanitary District; and the Toms BrookMaurertown Sanitary District) (Virginia) (U.S. consented to judgment);
4. Roanoke County v. Reno, No. 00-1949 (D.D.C. Jan. 24, 2001) (including the Roanoke
County School Board and the Town of Vinton) (Virginia) (U.S. consented to judgment);
5. City of Winchester v. Reno, No. 00-3073 (D.D.C. June 1, 2001) (Virginia) (U.S. consented
to judgment);
6. City of Harrisonburg v. Reno, No. 02-289 (D.D.C. Apr. 17, 2002) (including the
Harrisonburg City School Board) (Virginia) (U.S. consented to judgment);
7. Rockingham County v. Reno, No. 02-391 (D.D.C. May 24, 2002) (including the
Rockingham County School Board and the Towns of Bridgewater, Broadway, Dayton,
Elkton, Grottoes, Mt. Crawford, and Timberville) (Virginia) (U.S. consented to judgment);
8. Warren County v. Ashcroft, No. 02-1736 (D.D.C. Nov. 26, 2002) (including the Warren
County School Board and the Town of Front Royal) (Virginia) (U.S. consented to
judgment);
9. Greene County v. Ashcroft, No. 03-1877 (D.D.C. Jan. 19, 2004) (including the Greene
County School Board and the Town of Standardsville) (Virginia) (U.S. consented to
judgment);
10. Pulaski County v. Gonzales, No. 05-1265 (D.D.C. Sept. 27, 2005) (including the Pulaski
County School Board and the Towns of Pulaski and Dublin) (Virginia) (U.S. consented to
judgment);
11. Augusta County v. Gonzales, No. 05-1885 (D.D.C. Nov. 30, 2005) (including the Augusta
County School Board and the Town of Craigsville) (Virginia) (U.S. consented to judgment);
12. City of Salem v. Gonzales, No. 06-977 (D.D.C. July 27, 2006) (Virginia) (U.S. consented to
judgment);
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13. Botetourt County v. Gonzales, No. 06-1052 (D.D.C. Aug. 28, 2006) (including the Botetourt
County School Board and the Towns of Buchanan, Fincastle, and Troutville) (Virginia)
(U.S. consented to judgment);
14. Essex County v. Gonzales, No. 06-1631 (D.D.C. Jan. 31, 2007) (including the Essex County
School Board and the Town of Tappahannock) (Virginia) (U.S. consented to judgment);
15. Middlesex County v. Gonzales, No. 07-1485 (D.D.C. Jan. 7, 2008) (including the Middlesex
County School Board and the Town of Urbanna) (Virginia) (U.S. consented to judgment);
16. Amherst County v. Mukasey, No. 08-780 (D.D.C. Aug. 13, 2008) (including the Town of
Amherst) (Virginia) (U.S. consented to judgment);
17. Page County v. Mukasey, No. 08-1113 (D.D.C. Sept. 15, 2008) (including the Page County
School Board and the Towns of Luray, Stanley, and Shenandoah) (Virginia) (U.S. consented
to judgment);
18. Washington County v. Mukasey, No. 08-1112 (D.D.C. Sept. 23, 2008) (including the
Washington County School Board and the Towns of Abington, Damascus, and Glade
Spring) (Virginia) (U.S. consented to judgment);
19. Northwest Austin Municipal Utility District Number One v. Mukasey, No. 06-1384 (D.D.C.
Nov. 3, 2009) (Texas) (U.S. opposed on ground that jurisdiction was not a political
subdivision and bailout was denied on that ground by D.D.C. on May 30, 2008. On appeal,
the Supreme Court reversed on that ground on June 22, 2009, and held that the jurisdiction
was a political subdivision. On remand, the U.S. consented to judgment.);
20. City of Kings Mountain v. Holder, No. 10-1153 (D.D.C. Oct. 22, 2010) (North Carolina)
(U.S. consented to judgment);
21. City of Sandy Springs v. Holder, No. 10-1502 (D.D.C. Oct. 26, 2010) (Georgia) (U.S.
consented to judgment);
22. Jefferson County Drainage District Number Seven v. Holder, No. 11-461 (D.D.C. June 6,
2011) (Texas) (U.S. consented to judgment);
23. Alta Irrigation District v. Holder, No. 11-758 (D.D.C. July 15, 2011) (California) (U.S.
consented to judgment);
24. City of Bedford v. Holder, No. 11-473 (D.D.C., proposed consent decree filed June 8, 2011,
pending before court) (Virginia) (U.S. consented to judgment);
25. City of Manassas Park v. Holder, C.A. No. 11-749 (D.D.C., proposed consent decree filed
June 20, 2011, pending before court) (Virginia) (U.S. consented to judgment);
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26. Rappahannock County v. Holder, C.A. No. 11-1123 (D.D.C., proposed consent decree filed
July 7, 2011, pending before court) (including the Rappahannock County School Board and
the Town of Washington) (Virginia) (U.S. consented to judgment);
27. Bedford County v. Holder, No. 11-499 (D.D.C., proposed consent decree filed July 27, 2011,
pending before court) (including the Bedford County School Board) (Virginia) (U.S.
consented to judgment).
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE,
ANTHONY CUOMO, JOHN NIX,
KLAY NORTHRUP, LEE RAYNOR,
and KINSTON CITIZENS FOR NONPARTISAN VOTING,
)
)
)
)
)
)
Plaintiffs
)
)
v.
)
)
ERIC H. HOLDER, JR., in his official capacity as )
Attorney General of The United States,
)
)
)
Defendant
)
Civil Action No. 1:10-0561 (JDB)
Judge John D. Bates
Declaration of Dr. Peyton McCrary
Pursuant to 28 U.S.C. § 1746, I, Peyton McCrary, make the following declaration:
1. My name is Peyton McCrary. I am an historian employed since August, 1990 by the
Voting Section, Civil Rights Division, of the Department of Justice. My responsibilities include
the planning, direction, coordination, and performance of historical research and statistical
analysis in connection with litigation. On occasion I am asked to provide written or courtroom
testimony on behalf of the United States.
2. I received B.A. and M.A. degrees from the University of Virginia and obtained my
Ph.D. from Princeton University in 1972. My primary training was in the history of the United
States, with a specialization in the history of the South during the 19th and 20th centuries. For
20 years I taught courses in my specialization at the University of Minnesota, Vanderbilt
University, and the University of South Alabama. In 1998-99 I took leave from the Department
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of Justice to serve as the Eugene Lang Professor in the Department of Political Science,
Swarthmore College. For the last four years I have co-taught a course on voting rights law as an
adjunct professor at the George Washington University Law School.
3. I have published a prize-winning book, Abraham Lincoln and Reconstruction: The
Louisiana Experiment (Princeton, N.J., Princeton University Press, 1978), six law review
articles, six articles in refereed journals, and four chapters in refereed books. Over the last
quarter century my published work has focused on the history of discriminatory election laws in
the South, evidence concerning discriminatory intent or racially polarized voting presented in the
context of voting rights litigation, and the impact of the Voting Rights Act in the South. Over
the last three decades I have published numerous reviews of books in my areas of specialization
and served as a scholarly referee for numerous journals and university presses. I continue to
publish scholarly work on these topics while employed by the Department of Justice. A detailed
record of my professional qualifications is set forth in the attached curriculum vitae (Attachment
A), which I prepared and know to be accurate.
4. My publications most relevant to the issues discussed in this declaration include: The
End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the
Voting Rights Act, 11 Mich. J. Race & L. 275 (2006) (co-authored with Christopher Seaman and
Richard Valelly), reprinted in Voting Rights Act: Section 5 Preclearance and Standards:
Hearings Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th
Cong. 96-181 (2005); How the Voting Rights Act Works: Implementation of a Civil Rights
Policy, 1965-2005, 57 S.C. L. Rev. 785 (2006); Bringing Equality to Power: How the Federal
Courts Transformed the Electoral Structure of Southern Politics, 1960-1990, 5 U. Pa. J. Const.
L. 665 (2003); Alabama, in Quiet Revolution in the South: The Impact of the Voting Rights Act,
2
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1965-1990, at 38 (Chandler Davidson and Bernard Grofman eds., 1994) (co-authored with
Jerome A. Gray, Edward Still, and Huey Perry); South Carolina, in Quiet Revolution in the
South, supra, at 397 (co-authored with Orville Vernon Burton, Terence R. Finnegan, and James
W. Loewen); Racially Polarized Voting in the South: Quantitative Evidence from the Courtroom,
14 Soc. Sci. Hist. 507 (1990); Discriminatory Intent: The Continuing Relevance of “Purpose”
Evidence in Vote-Dilution Lawsuits, 28 How. L.J. 463 (1985); and History in the Courts: The
Significance of City of Mobile v. Bolden, in Minority Vote Dilution 47 (Chandler Davidson ed.,
1984).
5. I have presented courtroom testimony as an expert witness in 15 voting rights cases,
for the most part before joining the staff of the Civil Rights Division. In addition, I have
presented sworn written testimony in seven cases, including three since my employment by the
Department of Justice. These cases are listed in Attachment A. Prior to my employment with
the Civil Rights Division, I was retained as an expert in another 19 cases that settled before trial;
14 of these were Section 2 lawsuits. I was retained in two other Section 2 cases that settled after
a trial court granted a preliminary injunction. In these cases, my testimony has typically dealt
with legislative intent in adopting or maintaining at-large elections, numbered place or majority
vote requirements, and methods of appointing local governing bodies, as well as with the history
of racial discrimination in regard to voting. During the past four years my only testimony as an
expert witness has been an initial declaration filed November 15, 2010, and a supplemental
declaration filed February 16, 2011, in Shelby County, Alabama v. Holder, C.A. No. 1:10-cv00651-JDB (D.D.C.).
6. I have been asked by attorneys for the Department of Justice to investigate factual
evidence relevant to the allegations by the plaintiffs in this case as to the coverage formula for
3
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Section 5 of the Voting Rights Act. In my investigation I have drawn on my familiarity with the
record assembled by House and Senate committees during the hearings preceding passage of the
Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006, Pub. L. No. 109-246, 120 Stat. 577, which I first examined when
assisting attorneys for the United States in Northwest Austin Municipal Utility District Number
One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008), vacated sub. nom. Northwest Austin
Municipal Utility District Number One v. Holder, 129 S. Ct. 2504 (2009). The study presented
in the following pages was included as part of my Declaration filed on November 15, 2010, in
Shelby County, Alabama v. Holder, No. 1:10-cv-00651-JDB (D.D.C.). In this declaration I have
removed material specific to Shelby County.
7. I have examined the evidence in two studies considered by Congress when it
reauthorized Section 5 of the Voting Rights Act in 2006: (1) Ellen Katz, et. al., Documenting
Discrimination in Voting: Judicial Findings Under Section 2 of the Voting Rights Act Since 1982
(2005), reprinted in To Examine Impact and Effectiveness of the Voting Rights Act: Hearing
Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 16,
964-1124 (2005) [hereinafter Documenting Discrimination in Voting]; and (2) Nat’l Comm’n on
the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work, 1982-2005
(2006), reprinted in Voting Rights Act: Evidence of Continuing Need: Hearing Before the
Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. 104-289 (2006)
[hereinafter Protecting Minority Voters].1 The study by Professor Katz and law students
1
In its analysis the National Commission report utilized a version of the Michigan study directed
by Professor Katz – known as the Voting Rights Initiative (VRI) – available on the VRI website
as of Jan. 16, 2006. Thus the numbers in Protecting Minority Voters, supra, at 251 tbl. 5, drawn
from the Michigan study, differ slightly from the numbers on the record before Congress. In my
analysis I have relied on the numbers from the Michigan study on the record before Congress
4
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working under her direction at the University of Michigan assembled data regarding all reported
decisions in Section 2 litigation from 1982 to 2005. Among other evidence provided in its
report, the staff of the National Commission gathered data regarding Section 2 litigation other
than in reported decisions. The Commission’s research utilized docket information contained on
Lexis and the federal courts’ Public Access to Court Electronic Records (“PACER”) system;
cases cited in the tables of Quiet Revolution in the South, supra; data supplied from the files of
voting rights attorneys; and a search of the Department of Justice’s Submission Tracking and
Processing System (“STAPS”) database, which records every Section 5 submission involving a
change in the method of election since 1980. See Protecting Minority Voters, supra, at 240
n.280.
8. The Michigan study of reported decisions permits a detailed comparison of the
enforcement of Section 2 in jurisdictions covered by Section 5 and enforcement in the rest of the
country. Thus it provides useful evidence regarding the degree to which the Section 5 coverage
formula captures jurisdictions in which racial discrimination in voting is most serious. On the
other hand, as the Michigan study points out, many Section 2 cases have been settled by the
parties to the advantage of minority voters in court-entered settlement agreements that are not
reported by the courts. Professor Katz and her colleagues gathered lists of settled cases from
various voting rights attorneys that suggested that the total volume of Section 2 litigation was at
and the numbers calculated by the National Commission staff. Id. Because I use the number of
reported decisions favorable to minority voters in covered jurisdictions reported to the House
(64) instead of the 66 such favorable outcomes identified in Protecting Minority Voters, at 251
tbl. 5, my total for reported decisions and court-ordered settlements is 651, rather than the 653
used by the National Commission. The slight differences in the numbers reported in different
versions of the Michigan study do not affect the conclusions to be drawn from the data. A
finalized set of numbers, which I believe are the most accurate, appeared in the version of the
study published at 39 U. Mich. J.L. Reform 643 (2006).
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least four times as great as reflected in reported decisions. See Documenting Discrimination in
Voting, supra, at 974.
9. The National Commission staff sought to collect data regarding the large volume of
“all Section 2 claims – reported and unreported – resolved in a manner favorable to minority
voters since 1982.” Protecting Minority Voters, supra, at 205. Their search was, however,
restricted to jurisdictions covered by Section 5 (excluding one covered state, Alaska). See id.
The Commission staff recognized that this list of unreported settlements was incomplete but
offered it as a “best effort” at a comprehensive accounting. Id.
10. A more comprehensive picture of the total volume of successful enforcement of
Section 2 would include a similar list of settlements since 1982 for all jurisdictions not covered
by Section 5. In order to obtain a more comprehensive assessment, I undertook a systematic
search for Section 2 settlements in non-covered jurisdictions, utilizing the following
methodology: I began with a list of all lawsuits catalogued in PACER as concerning “Civil
Rights: Voting” (Code No. 441). I used LexisNexis CourtLink to search by docket number for
all cases in non-covered jurisdictions. Four staff members working under my direction reviewed
docket sheets to screen for possible Section 2 lawsuits and to print them for my review. After
my initial review, two staff attorneys examined additional information from PACER about
particular lawsuits suspected of being Section 2 settlements. In my final review, I did not
include any case for which the docket sheet or case documents electronically linked to the
dockets failed to provide some evidence that the case was resolved under Section 2 of the Voting
Rights Act, whether by reference to the federal code section or by reference to “voting rights
issues” or similar language. I also required some reference to settlement of the case, whether by
consent decree, consent judgment, consent order, or a simple reference to “settlement.”
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11. In addition, I used certain publicly available documents to supplement information
from the electronic docket sheets. Laughlin McDonald & Daniel Levitas, Vote: The Case for
Extending and Amending the Voting Rights Act (2006), reprinted in Voting Rights Act: Evidence
of Continuing Need: Hearing Before the Subcomm. on the Constitution of the S. Comm. on the
Judiciary, 109th Cong. 378-1269 (2006), provides detailed information about the outcome of
Section 2 cases brought by the American Civil Liberties Union. The Voting Section of the Civil
Rights Division of the Department of Justice maintains a routinely updated list of voting rights
cases brought by it from 1976 to the present. Similar lists were made part of the record before
Congress when the Voting Rights Act was amended in 1970, 1975, and 1982.2
12. My goal was to identify all Section 2 settlements in non-covered jurisdictions. I
recognize, however, that because of the limitations of PACER and CourtLink – which did not
begin receiving documents from district courts until the late 1980s – my list of Section 2
settlements may be under-inclusive. The Michigan study documents that reported decisions in
Section 2 cases were most numerous in the first decade following the creation of the Section 2
results test in 1982. Documenting Discrimination in Voting, supra, at 975. The studies of
Section 5 covered jurisdictions in Quiet Revolution in the South indicate that Section 2 lawsuits
in Southern states generated numerous orders and settlements during the 1980s requiring the
adoption of single-member districts or cumulative or limited voting plans. Some docket sheets
are available in the PACER database beginning in 1985, but not consistently until the early
1990s. Until the last decade, moreover, few docket sheets included links to complaints or
consent decrees, either in CourtLink or in PACER. The under-inclusiveness of CourtLink and
2
I drew on the personal knowledge of Department of Justice attorneys in determining that two
New Mexico cases, United States v. Chaves County and United States v. Roswell Indep. Sch.
District, were settled by changing the method of election in the defendant jurisdictions.
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PACER also necessarily affects the study of Section 2 settlements in covered jurisdictions
conducted by the National Commission staff. Protecting Minority Voters, supra, at 204-08, 23940, and 251 tbl. 5.
13. I can think of no plausible reason why district courts in covered jurisdictions, mostly
in the South, would have been more likely to send information about voting cases to PACER
than district courts in the rest of the country.
14. I found a total of 99 Section 2 settlements in non-covered jurisdictions. Twenty-four
of these cases were in Arkansas alone; thirteen were in California; eleven were in the noncovered counties of Florida; thirteen in the non-covered counties of North Carolina; and the rest
scattered around the country. Evidence concerning 61 of the 99 settlements I found in noncovered jurisdictions (62%) was on the record considered by Congress in adopting the 2006
Reauthorization Act. Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose:
Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th
Cong. 2835-57 (2005), 2835-39; Voting Rights Act: Evidence of Continuing Need: Hearing
Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 109th Cong. 321-22,
487-91, 500-02, 923-24, 953-54, 1150, 1171-73, 1200-03, 1246, 1252, 1484-85, 1491-92, 1763,
1773-74, 1779, 1782-89, 1794-95, 1875, 1889, 1986, 1999-2000, 4014-15, 4026-35, 4058-59,
4064, 4067-68, 4072-73, 4080-82, 4086, 4099, 4118-21, 4127, 4129, 4133-34, 4138, 4313-25,
4348, 4359-60, 4373, 4384, 4391-92, 4403-04, 4425, 4438, 4451-56, 4462, 4479, 4505-06, 451214, 4552, 4564-81, 4583, 4594, 4726, 4731-34, 4747, 5536-5544 (2006). See Attachment B to
this declaration.
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15. The 99 settlements in non-covered jurisdictions contrasts with the 587 cases resolved
favorably to minority voters in covered jurisdictions found in the National Commission report.3
Even if the under-inclusiveness of my research protocol led me to find only half of the Section 2
settlements in non-covered jurisdictions – a hypothetical 198 settlements – there would still be
389 more settlements resolved favorably for minority voters in areas covered by the preclearance
requirements of the Voting Rights Act than in the rest of the country. Based on my training and
experience as a historian and 30 years of experience doing research for voting rights litigation, I
am confident that the number of court-ordered settlements in non-covered jurisdictions is
unlikely to be greater than twice the number I have identified here. Furthermore, jurisdictions
covered by Section 5 account for less than a quarter of the nation’s population, a number that
highlights the disparity in court-ordered settlements. Id. at 83.
16. I have compared the number of Section 2 settlements in non-covered jurisdictions
with the consent decrees resulting from the court decision in Dillard v. Crenshaw County, 640 F.
Supp. 1347 (M.D. Ala. 1986), where the trial court enjoined further use of at-large elections in
nine Alabama counties. The court found, relying in part on my expert testimony, that the Dillard
plaintiffs had shown a substantial likelihood of prevailing on the merits by producing evidence
that the Alabama legislature “has engaged in a pattern and practice of using at-large systems as
an instrument of race discrimination.” Crenshaw County, 640 F. Supp. at 1361.
17. The Dillard plaintiffs subsequently amended their complaint to add municipalities
and local school boards, so that the number of defendants eventually totaled 183. Of these
defendants, 176 entered into interim consent decrees with the plaintiffs. The parties agreed to
3
Calculated from the numbers in Protecting Minority Voters, supra, at 251 tbl. 5 (see footnote
1, supra).
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have the court deal with 165 of the defendants in separate lawsuits, with separate files and civil
action numbers, with the remaining 18 jurisdictions treated as defendants in Dillard v. Crenshaw
County. See Dillard v. Baldwin County, 686 F. Supp. 1459, 1461 (M.D. Ala. 1988). In short,
the number of Section 2 settlements in the Dillard litigation alone was 1.8 times as great as the
99 settlements I have identified in non-covered jurisdictions.
Conclusions
18. Considering cases resolved not only by reported decisions but also by court-ordered
settlements gives a more comprehensive picture of the scope of litigation enforcing Section 2 of
the Voting Rights Act than simply looking at reported decisions in Westlaw or Lexis. Once the
number of court-ordered settlements is added to the reported decisions, it becomes clear that
most of the racially discriminatory election practices ended by enforcement of Section 2 during
the past quarter century have taken place in jurisdictions covered by Section 5 of the Act. The
pattern is in fact quite stark.
19. The study of reported decisions by Ellen Katz and law students at the University of
Michigan included in the House record identified 64 Section 2 cases in covered jurisdictions in
which plaintiffs were successful. Documenting Discrimination in Voting, supra, at 974-75.4 The
National Commission report found 587 cases which it characterized as resolved in a manner
favorable to minority voters in covered jurisdictions where there were no reported decisions.
4
While the version of the Michigan study before the House identified 64 Section 2 cases in
covered jurisdictions in which minority plaintiffs were successful, and 50 cases in non-covered
jurisdictions in which plaintiffs prevailed, the finalized, published version of the study concludes
that there were 68 cases with successful outcomes for minority plaintiffs in covered jurisdictions
and 55 such cases in non-covered jurisdictions (44.7% of the total). See 39 U. Mich. J.L. Reform
643, 656 (2006). The list of Section 2 cases identified in the published Michigan study is
available at http://sitemaker.umich.edu/votingrights/final_report. In both the initial and finalized
versions of the Michigan study, more than half of all Section 2 cases in which minority plaintiffs
prevailed were in covered jurisdictions.
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Protecting Minority Voters, supra, tbl. 5.5 These cases, some of which were statewide in impact,
affected voting practices in 825 counties, parishes, or independent cities covered by Section 5.
Id.
20. Looking at jurisdictions not covered by Section 5, the University of Michigan study
before the House found only 50 reported cases with outcomes that the authors characterized as
favorable for minority voters. Documenting Discrimination in Voting, supra, at 974-75. Even
though more than three-fourths of the nation’s population lives in non-covered jurisdictions, id.,
only 50 (44%) of the 114 reported decisions before Congress that were favorable for minority
voters came from these non-covered jurisdictions. Looking at unreported cases, I found only 99
Section 2 settlements in non-covered jurisdictions, as compared with 587 in areas covered by
Section 5 identified in the National Commission report. Protecting Minority Voters, supra, tbl.
5. Evidence regarding 61 of the 99 Section 2 settlements was on the record before Congress.
Adding the settlements in covered and non-covered jurisdictions gives a total of 686 successful
outcomes in cases without reported decisions, of which 86% fall within jurisdictions covered by
Section 5, as demonstrated in the following Table:
Covered Jurisdictions
Favorable Reported
Decisions
Court-Ordered
Settlements
Total
64
(56%)
Non-Covered
Jurisdictions
50
(44%)
Total
587
(86%)
99
(14%)
686 (100%)
651
(81%)
149
(19%)
800 (100%)
114 (100%)
5
The National Commission identified 66 reported cases that it characterized as being resolved
favorably for plaintiffs, rather than the 64 in the Michigan data on the record before Congress.
As noted in Footnote 1, supra, the Commission relied on an interim dataset from the Michigan
study. See Protecting Minority Voters, supra, tbl. 5.
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CURRICULUM VITAE: PEYTON McCRARY
Historian, U.S. Department of Justice, 1990Civil Rights Division, Voting Section
1800 G Street, N.W, Room 7267
Washington, D.C. 20006
(202) 307-6263 (O)
(202) 307-3961 (FAX)
peyton.mccrary@usdoj.gov
Principal Functions: Research in connection with voting rights litigation; identifying consultants
and expert witnesses to be used in cases; working with attorneys and experts to prepare for
direct testimony and cross-examination; supervising the preparation of contracts and processing
the reimbursement of consultants and expert witnesses; drafting presentation of factual evidence
in memoranda, briefs, and proposed findings of fact; legislative history research.
231 North Fillmore Street
Arlington, Virginia 22201
(703) 527-6278 (H)
pmccrary@verizon.net
PERSONAL:
Born, Danville, Virginia, 1943.
EDUCATION:
University of Virginia:
B.A. (Honors), 1965
M.A., History, 1966
Princeton University:
Ph.D., History, 1972
FIELDS:
Minority Voting Rights; Law and the Political Process; U.S. History; History of the South;
Southern Politics; Civil War and Reconstruction; American Political Parties and Voting
Behavior; Theory and Methods of Historical Analysis
ACADEMIC APPOINTMENTS:
Adjunct Professor, George Washington University Law School, Washington, D.C., 2006 Eugene Lang Professor [Visiting], Department of Political Science, Swarthmore College, Swarthmore,
Pennsylvania, 1998-1999.
Distinguished Scholar, Joint Center for Political and Economic Studies, Washington, D.C., 1987-1988.
Associate Professor of History, 1978-82, Professor of History, 1982-90, University of South Alabama,
Mobile, Alabama..
Assistant Professor of History, 1976-1978, Vanderbilt University, Nashville, Tennessee
Instructor, Assistant Professor of History, 1969-1976, University of Minnesota, Minneapolis, Minnesota
BOOK:
Abraham Lincoln and Reconstruction: The Louisiana Experiment (Princeton, N.J., Princeton University
Press, 1978), 423 pages. Winner, Kemper Williams Prize, Louisiana Historical Association, 1979.
BOOK CHAPTERS:
“The Law of Preclearance: Enforcing Section 5,” co-authored with Christopher Seaman and Richard
Valelly, in David Epstein, et.al. (eds.), The Future of the Voting Rights Act (New York, Russell Sage
Foundation, 2006), 20-37.
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"Alabama," co-authored with Jerome A. Gray, Edward Still, and Huey Perry, and "South Carolina," coauthored with Orville Vernon Burton, Terence R. Finnegan, and James W. Loewen, in Chandler Davidson
and Bernard Grofman (eds.), Quiet Revolution in the South: The Impact of the Voting Rights Act, 19651990 (Princeton, N.J., Princeton University Press, 1994), 38-66, 397-409. Winner, Richard Fenno Prize,
American Political Science Association.
“History in the Courts: The Significance of City of Mobile v. Bolden," in Chandler Davidson (ed.), Minority
Vote Dilution (Washington, D.C., Howard University Press, 1984), 47-65.
LAW REVIEW ARTICLES:
“How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965-2005,” South Carolina
Law Review, 57 (Summer 2006), 785-825.
“The End of Preclearance as We Knew It: How the Supreme Court Transformed Section 5 of the Voting
Rights Act,” co-authored with Christopher Seaman and Richard Valelly, Michigan Journal of Race & Law,
11 (Spring 2006), 275-323. [An unpublished version was printed in Voting Rights Act: Section 5
Preclearance and Standards: Hearings Before the Subcomm. On the Constitution, H. Comm. On the
th
Judiciary, 109 Cong., 96-181 (2005)(Serial No. 109-69).]
"Bringing Equality to Power: How the Federal Courts Transformed the Electoral Structure of Southern
Politics, 1960-1990," University of Pennsylvania Journal of Constitutional Law, 5 (May 2003), 665-708.
"Yes, But What Have They Done to Black People Lately? The Role of Historical Evidence in the Virginia
School Board Case," Chicago-Kent Law Review, 70 (No. 3, 1994), 1275-1305.
"Keeping the Courts Honest: The Role of Historians as Expert Witnesses in Southern Voting Rights
Cases," co-authored with J. Gerald Hebert, Southern University Law Review, 16 (Spring 1989), 101-28.
"Discriminatory Intent: The Continuing Relevance of 'Purpose' Evidence in Vote-Dilution Lawsuits,"
Howard Law Journal, 28 (No. 2, 1985), 463-93.
JOURNAL ARTICLES:
“The Struggle for Minority Representation in Florida, 1960-1990,” Florida Historical Quarterly, 86
(Summer 2007), 93-111.
"Race and Reapportionment, 1962: The Case of Georgia Senate Redistricting," co-authored with Steven
F. Lawson, Journal of Policy History, 12 (No.3, 2000), 293-320.
"The Dynamics of Minority Vote Dilution: The Case of Augusta, Georgia, 1946-1986," Journal of Urban
History, 25 (Jan. 1999), 199-225.
"Racially Polarized Voting in the South: Quantitative Evidence from the Courtroom," Social Science
History, 14 (Winter 1990), 507-31.
"The Party of Revolution: Republican Ideas About Politics and Social Change, 1862-1867," Civil War
History, 30 (December 1984), 330-50.
"Class and Party in the Secession Crisis: Voting Behavior in the Deep South, 1856-1861," co-authored
with Clark Miller and Dale Baum, Journal of Interdisciplinary History, VIII (Winter 1978), 429-57.
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REVIEW ESSAYS:
"Race and Misrepresentation: Review of Maurice T. Cunningham, Maximization, Whatever the Cost:
Race, Redistricting, and the Department of Justice," H-Net, Feb. 2002. www.hnet.msu.edu/reviews/showrev.cgi?path=214111015008351.
"Review of David Lublin, The Paradox of Representation: Racial Gerrymandering and Minority Interest in
Congress," H-Net, May 1998.
www.h-net.msu.edu/reviews/showrev.cgi?path=23313895266679.
"Without Fear and Without Research: Abigail Thernstrom on the Voting Rights Act," co-authored with
Pamela S. Karlan, Journal of Law and Politics, IV (Spring 1988), 751-77.
"The Political Dynamics of Black Reconstruction," Reviews in American History, 12 (March 1984), 51-57.
ENCYCLOPEDIA ARTICLE:
"The Reconstruction Myth," in Charles Reagan Wilson and William Ferris (eds.), Encyclopedia of
Southern Culture (Chapel Hill, University of North Carolina Press, 1989), 1120-21 [reprinted in Jonathan
Birnbaum and Clarence Taylor (eds.), Civil Rights Since 1787: A Reader on the Black Struggle (New
York, New York University Press, 2000), 150-53.]
BOOK REVIEWS: American Historical Review, Journal of Interdisciplinary History, Journal of Southern
History, Social Science History, American Review of Politics.
FORTHCOMING PUBLICATIONS:
“Race and Municipal Reform in the Progressive Era: The Adoption of At-Large Elections in Norfolk,
Virginia, 1914-1918,” in Orville Vernon Burton and Gerald Podair (eds.), The Struggle for Equality: Essays
on Sectional Conflict, the Civil War, and the Long Reconstruction (forthcoming, University Press of
Virginia, 2012).
“The Constitutional Foundations of the ‘Preclearance’ Process: How Section 5 of the Voting Rights Act
Was Enforced, 1965-2005,” in Daniel McCool (ed.), The Most Fundamental Right: Contrasting
Perspectives on the Voting Rights Act (forthcoming, Indiana University Press, 2012).
COURTROOM TESTIMONY AS AN EXPERT WITNESS:
(United States as Amicus Curiae), SCLC v. Evans, M.D.Ala. (Montgomery), December 1991. [Challenge
to the method of electing certain circuit judges in Alabama]
(Plaintiffs), Vereen v. Ben Hill County, M.D.Ga. (Macon), December 1989. [Challenge to the state law
requiring appointment of county school boards by the local grand jury, as applied in more than a dozen
counties]
(Plaintiffs), Hall v. Holder, M.D.Ga. (Macon), December 1989.
[Challenge to the sole commissioner form of government in Bleckley County, Georgia.
(Plaintiffs), Irby v. Fitzhugh, E.D.Va. (Richmond), June 1988.
[Challenge to the appointment of all school boards in the Commonwealth of Virginia]
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(Plaintiffs), Dillard v. Crenshaw County, et.al., M.D.Ala. (Montgomery), Preliminary Injunction Hearing,
March 1986. [Challenge to the at-large election of public officials in more than 180 Alabama counties,
municipalities, and school boards]
(Plaintiffs), Whitfield v. Clinton, E.D.Ark. (Helena), March 1988. [Challenge to the use of the statewide
majority vote requirement in Phillips County, Arkansas]
(Plaintiffs), Dent v. Culpepper, M.D.Ga. (Macon), Preliminary Injunction Hearing, November 1987.
[Challenge to the at-large election of the City Commission in Cordele, Georgia]
(Plaintiffs), Jackson v. Edgefield County, School District, D.S.C. (Columbia), April 1986. [Challenge to the
at-large election of the Edgefield County School Board]
(Plaintiffs), Harris v. Graddick, M.D.Ala. (Montgomery), February 1985. [Challenge to the procedures by
which election officials are selected and elections conducted in Alabama]
(Plaintiffs), Woods v. Florence, N.D.Ala. (Birmingham), August 1984. [Challenge to the method of
appointing the Jefferson County Personnel Board]
(Plaintiffs), Collins v. City of Norfolk, E.D.Va. (Norfolk), May 1984. [Challenge to the at-large election of
the Norfolk City Council]
(United States), County Council of Sumter County, S.C. v. U.S., D.D.C., February 1983. [Defense of
Section 5 Objection to the at-large election of the Sumter County Council]
(United States), U.S. v. Dallas County Commission, S.D.Ala. (Selma), October 1981. [Challenge to the
at-large election of the Dallas County Commission]
(Plaintiffs), Bolden v. City of Mobile, S.D.Ala. (Mobile), May 1981. [Challenge to the at-large election of
the Mobile City Commission]
(Plaintiffs), Brown v. Board of School Commissioners of Mobile County, S.D.Ala. (Mobile), April 1981.
[Challenge to the at-large election of the Mobile County School Board]
SWORN WRITTEN TESTIMONY AS AN EXPERT WITNESS:
(United States) November 15, 2010, Shelby County, Alabama, v. Holder, C.A. No. 1:10-cv-00651, D.D.C.
[Defense of the constitutionality of Section 5 of the Voting Rights Act]
(United States as Defendant-Intervenor) July 31, 1996, Cook v. Marshall County, Mississippi, and United
States, C.A. No. 3:95 CV 155-D-A, N.D. Miss. [Defense of Marshall County's redistricting plan]
(United States as Defendant-Intervenor) July 19, 1994, Hays v. State of Louisiana, C.A. No. 92-1522S,
W.D. La. (Shreveport). [Defense of Louisiana's congressional redistricting plan]
(United States) March 25, 1991, State of Georgia v. Thornburg, C.A. No. 90-2065, D.D.C. [Defense of
Section 5 Objection to the method of electing certain superior court judges in Georgia]
(Plaintiffs) January 20, 1988, Irby v. Fitzhugh, C.A. No. 87-0633-R, E.D.Va. (Richmond). [Challenge to
the appointment of all school boards in the Commonwealth of Virginia]
(United States) June 25, 1984, U.S. v. Halifax County, N.C., C.A. No. 83-88-CIV-8, E.D.N.C. (Wilson).
[Challenge to the at-large election of the Halifax County Commission]
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(Plaintiffs) April 22, 1983, Wilson v. Powell, C.A. No. 383-14, S.D.Ga. (Dublin). [Challenge to the
appointment of the Johnson County School Board by the county grand jury]
(United States) September 28, 1982, County Council of Sumter County, S.C. v. U.S., C.A. No. 82-0912,
D.D.C. [Defense of Section 5 Objection to the at-large election of the Sumter County Council]
CONGRESSIONAL TESTIMONY:
"Written Testimony of Dr. Peyton McCrary," in Extension of the Voting Rights Act: Hearings Before the
Subcommittee on Civil and Constitutional Rights of the Committee on the Judiciary, U.S. House of
Representatives, 97th Cong., 1st Sess., Serial No. 24 (3 vols., Washington, D.C., G.P.O., 1982), III, 274976.
"Testimony Before the Subcommittee of National Parks and Public Lands, Committee on the Interior, U.S.
House of Representatives, June 14, 1988.
UNPUBLISHED CONFERENCE PAPERS:
“From Gomillion v. Lightfoot to City of Pleasant Grove v. United States: Annexations, De-annexations,
and the Voting Rights Act.” Constitution Day Conference, San Francisco State University, September
2010.
“Two Kinds of Vote Dilution: From Baker v. Carr to White v. Regester.” Organization of American
Historians, April 2010.
"How the Voting Rights Act Works: Implementation of a Civil Rights Policy, 1965-2005," University of
South Carolina School of Law, October 2005; [revised version, Southern Historical Association,
November 2005].
"Bringing Equality to Power: Federal Courts and the Transformation of Southern Electoral Politics, 19602000." Organization of American Historians, April 2002.
"Why the Voting Rights Act Worked: A Judicial Model of Policy Implementation." Social Science History
Association, October 1997; [revised version, Association of Public Policy Analysis and Management,
November 1997].
"Yes, But What Have They Done to Black People Lately? The Role of Historical Evidence in the Virginia
School Board Case." Southern Historical Association, November 1992.
"The Impact of the Voting Rights Act in Alabama," co-authored with Jerome Gray, Edward Still, and Huey
Perry. American Political Science Association, 1989 [revised version presented at a Conference on the
Impact of the Voting Rights Act, Rice University, Houston, Texas, May 1990].
"Taking History to Court: The Issue of Discriminatory Intent in Southern Voting Rights Cases." Joint
Center for Political and Economic Studies, Washington, D.C., June 13, 1988.
"Keeping the Courts Honest: Expert Witnesses in Voting Rights and School Desegregation Cases," coauthored with J. Gerald Hebert. Southern Historical Association, November 1986.
"Discriminatory Intent: The Continuing Relevance of 'Purpose' Evidence in Vote-Dilution Lawsuits."
Conference on Voting Rights Law, Howard University School of Law, Washington, D.C., January 1985.
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"The Subtle Gerrymander: Discriminatory Purposes of At-large Elections in the South, 1865-1982."
Organization of American Historians, April 1983.
"The Party of Revolution: Republican Ideas About Politics and Social Change, 1861-1868." Southern
Historical Association, November 1980.
"After the Revolution: American Reconstruction in Comparative Perspective." American Historical
Association, December 1979.
"The Civil War Party System, 1854-1876: Toward a New Behavioral Synthesis?" Southern Historical
Association, November 1976.
CHAIRPERSON, PANELIST, OR COMMENTATOR:
Alabama Association of Historians, 1983.
Alabama Department of Archives and History, 1988.
American Political Science Association, 1987, 2003.
Brookings Institution, 1990.
National Association of Secretaries of State, 1983.
Organization of American Historians, 1979, 1995.
Social Science History Association, 1981, 1987, 1996, 1997, 1999.
Southern Historical Association, 1973, 1985.
University of Alabama, 1983.
University of Utah, 2007.
ACADEMIC REFEREE:
Book-length manuscripts: Princeton University Press, University of North Carolina Press, University of
Tennessee Press, University of Alabama Press, Louisiana State University Press, University of Georgia
Press.
Article-length manuscripts: Journal of American History, American Historical Review, Sociological
Spectrum, Gulf Coast Historical Review, Social Science History.
CONSULTANT:
Test Design: College Board Achievement Test, American History; Educational Testing Service, Princeton,
N.J., 1979-1983
Archival: Re-organization of Section 5 Objection Files, Civil Rights Division/Voting Section, U.S.
Department of Justice, Washington, D.C., January-July, 1989.
Litigation Research: Civil Rights Division/Voting Section, U.S. Department of Justice, Washington, D.C.,
August 1989 to August 1990.
FELLOWSHIPS AND GRANTS:
John D. and Catherine T. MacArthur Foundation, 1987-1988: Distinguished Scholar, Joint Center for
Political and Economic Studies, Washington, D.C.
American Philosophical Society, 1983: Research Travel Grant.
Rockefeller Foundation, 1982-1983: Research Fellowship.
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Carnegie Corporation of New York, 1982-1983: Research Fellowship.
National Endowment for the Humanities, 1980: Summer Research Stipend.
University of South Alabama, 1978-1987: Faculty Research Grants; Research Council Grant.
Vanderbilt University, 1976-1978: Manuscript Preparation Grant.
University of Minnesota, 1969-1976: Faculty Research Grants.
Princeton University, 1966-69: University Fellow; Herbert Osgood Fellow; NDEA Fellow.
University of Virginia, 1961-1966: Echols Scholar; Du Pont Scholar; Ford Foundation Fellow.
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ATTACHMENT B
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Attachment B: Section 2 Cases Settled by Consent Decrees in Non-Covered Jurisdictions
The following 99 cases are confirmed Section Two settlements in non-covered jurisdictions.
The 61 settlements in Section 2 cases listed in bold are identified in the record of congressional
hearings. Citations are to the following hearing volumes: Voting Rights Act: Section 5 of the Act
– History, Scope, and Purpose: HearingBeforetheSubcomm.ontheConstitutionoftheH.
Comm.ontheJudiciary,109thCong.283557(2005)[hereinafterHistory,Scope,andPurpose];
VotingRightsAct:EvidenceofContinuingNeed:HearingBeforetheSubcomm.onthe
ConstitutionoftheS.Comm.ontheJudiciary,109thCong.104289(2006)[hereinafterEvidence
ofContinuingNeed].
Settlements in cases that had minority language claims under Section 203 or 4(e) as well as
Section 2 claims are listed in italics. Because these cases are identified in the record of
congressional hearings, they are also listed in bold.
Where a civil action number is unknown, the date of filing is listed in brackets.
Arkansas (24)
United States v. Mississippi County, E.D. Ark. [10-15-1986]
Townsend, et al v. Watson, 1:89cv1111 (W.D. Ark. 1998)
James v. Snowden, 2:89cv54 (E.D. Ark. 1990)
Hunt v. Arkansas, 5:89cv406 (E.D. Ark. 1991)
Baxter v. Smith, 5:89cv416 (E.D. Ark. 1990)
Blunt v. Knight, 5:89cv417 (E.D. Ark. 1991)
U.S. v. City of Magnolia, W.D. Ark. [4-26-1990] [History,Scope,andPurpose,2837]
Penn v. Hazen Education Bd., 4:90cv793 (E.D. Ark. 1991)
Teal v. Womack, 5:90cv364 (E.D. Ark. 1990)
Hill v. Rochelle, 5:90cv602 (E.D. Ark. 1992)
Bell, et al v. Galloway, 6:90cv6089 (W.D. Ark. 1991)
Jones v. City of Camden, 1:91cv1110 (W.D. Ark. 1992)
Govan v. Huttig School District, 1:91cv1153 (W.D. Ark. 1993)
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Reed v. Coles, 2:91cv12 (E.D. Ark. 1991)
Henderson v. Pickens, 4:91cv4025 (W.D. Ark. 1992)
Brown v. Grumbles, 5:91cv628 (E.D. Ark. 1993)
Childs v. Diemer, 5:91cv646 (E.D. Ark. 1993)
Jones v. City of Lonoke, 4:92cv539 (E.D. Ark. 1992)
Kemp, et al v. Hope Ar, City Of, et al., 4:92cv4124 (W.D. Ark. 1993)
Montgomery v. Mcgehee School District, 5:92cv18 (E.D. Ark. 1993)
Montgomery v. City of Mcgehee, 5:92cv25 (E.D. Ark. 1992)
Norman v. Dumas School District, 5:92cv345 (E.D. Ark. 1993)
Gordon v. City of Hot Springs, 6:93cv6070 (W.D. Ark. 1993)
Cox v. Donaldson, 5:02cv319 (E.D. Ark. 2003)
California (13)
United States v. City of Los Angeles, C.D. Cal. [11-26-1985] [History,Scope,andPurpose,
2836]
Reyes v. Alta Hosp. Dist., No. 1:90cv620 (E.D. Cal.)
Reyes v. City of Dinuba, No. 1:91cv168 (E.D. Cal.)
Espino v. Cutler-Orosi Unified Sch. Dist., No. 1:91cv169 (E.D. Cal.)
Reyes v. Dinuba Elementary Sch. Dist., No. 1:91cv170 (E.D. Cal.)
Elizondo v. Dinuba Joint Union High School, No. 1:91cv171 (E.D. Cal.)
Martinez v. City of Bakersfield, No. 1:91cv590 (E.D. Cal.)
Mendoza v. Salinas Valley Mem. Hosp., No. 5:92cv20462 (E.D. Cal.)
United States v. Alameda County, N.D. Cal. [4-13-1995] – Also a Sec. 203 Case [History,
Scope,andPurpose,2838]
Garcia v. City of Los Angeles, No. 2:96cv7661 (C.D. Cal.)
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United States v. City of Santa Paula, No. 2:00cv3691 (C.D. Cal.) [History,Scope,andPurpose,
2838]
United States v. Upper San Gabriel Valley Municipal Water District, No. 2:00cv7903 (C.D.
Cal.) [History,Scope,andPurpose,2838]
Common Cause v. Jones, No. 2:01cv3470 (C.D. Cal.)
Colorado (1)
Martinez v. Romer, No. 1:91cv1972 (D. Colo.)
Connecticut (1)
Bridgeport Coalition for Fair Representation v. City of Bridgeport, No. 3:93cv1476
(D.Conn.). [EvidenceofContinuingNeed, 4064, 4067-68]
Florida (11)
Williams v. City of Leesburg, No. 83-66-CIV-OC-14 (M.D. Fla. 1985). [Evidenceof
ContinuingNeed, 1484]
Madison Co. Chapter NAACP v. Madison County, No. TCA-84-7234 (M.D. Fla. 1986)[
EvidenceofContinuingNeed, 1484]
Potter v. Washington County, 653 F. Supp. 121 (N.D. Fla. 1986) [EvidenceofContinuing
Need, 1484, 4565]
Bradford Co. Branch NAACP v. Bradford Co. School Board, No. 86-4-CIV-J-12
M.D.Fla.1986). [EvidenceofContinuingNeed, 1484-85]
Bradford Co. Branch NAACP v. Bradford Co. Commission, No. 86-4-CIV-J-14
(M.D.Fla.1986). [EvidenceofContinuingNeed, 1484-85]
Tallahassee Branch NAACP v. Leon County, 827 F.2d 1436 (11th Cir. 1987). [Evidenceof
ContinuingNeed, 1484, 4566]
Coleman v. Fort Pierce City Council, No. 2:92cv14157 (S.D. Fla.) [EvidenceofContinuing
Need,48791]
Anderson v. West Palm Beach City, No. 9:94cv8135 (S.D. Fla.) [EvidenceofContinuingNeed,
50002]
George v. City of Cocoa, No. 6:93cv257 (S.D. Fla.). [EvidenceofContinuingNeed,47781,
4575]
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NAACP v. Harris, No. 1:01cv120 (S.D. Fla.) [EvidenceofContinuingNeed,120003,1491-92]
United States v. Osceola County, Fla., M.D. Fla. [6-28-2002] – Also a Sec. 203 Case [Evidence
ofContinuingNeed, 4581; History,Scope,andPurpose,2839]
Illinois (2)
Banks v. City of Peoria, No. 2:87cv2371 (C.D. Ill.)
Black v. McGuffage, No. 1:01cv208 (N.D. Ill.). [EvidenceofContinuingNeed, 4462, 4348]
Indiana (3)
Dickinson v. Indiana State Election Bd., 817 F. Supp. 737 (S.D. Ind. 1992). [Evidenceof
ContinuingNeed, 4359-60]
Anderson v. Morgan, No. 1:94cv1447 (S.D. Ind.)
Hines v. Marion Co. Election Bd., 166 F.R.D. 402 (S.D. Ind. 1995). [EvidenceofContinuing
Need, 4359]
Maryland (3)
United States v. City of Cambridge, D. Md. [12-5-1984]. [EvidenceofContinuingNeed, 5540;
History,Scope,andPurpose,2836]
United States v. Dorchester County, D. Md. [12-5-1984] [History,Scope,andPurpose,2836]
Conaway v. Maryland, No. 1:90cv610 (D. Md.)
Massachusetts (2)
United States v. City of Lawrence, D. Mass. [11-5-1998] – Also Sec. 203 [Evidenceof
ContinuingNeed, 4072-73, 4080; History,Scope,andPurpose,2838]
United States v. City of Boston, No. 05-11598 (D. Mass. 2005) – Also Sec. 203 [History,Scope,
andPurpose,2839]
Michigan (1)
United States v. City of Hamtramck, No. 2:00-73541 (E.D. Mich.) [EvidenceofContinuing
Need, 321-22, 4373; History,Scope,andPurpose,2838]
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Missouri (1)
Rojas v. Moriarty, 1994 Lexis 4033 (W.D. Mo. 1994) [EvidenceofContinuingNeed, 4384]
Montana (3)
Matt v. Ronan School District, No. 99-94 (D. Mont.) [EvidenceofContinuingNeed,1150,
1252]
Alden v. Bd. of County Comm’rs of Rosebud County, 1:99cv148 (D. Mont.) [Evidenceof
ContinuingNeed,1150, 1246]
United States v. Roosevelt County, No. 1:00cv50 (D. Mont.) [History,Scope,andPurpose,
2838]
New Jersey (1)
United States v. Passaic City and Passaic County, D.N.J. [6-2-1999] – Also Sec. 203, 208
[EvidenceofContinuingNeed, 4133-34, 4138, History,Scope,andPurpose,2838]
New Mexico (7)
United States v. Chaves County, D.N.M. [1-10-1985] [History,Scope,andPurpose,2836]
United States v. Roswell Independent School District, D.N.M. [3-12-1985] [History,Scope,
andPurpose,2836]
United States v. McKinley County, No. 86-0028 (D.N.M.1986) – Also Sec. 203 [Evidenceof
ContinuingNeed, 4026-28, 4035; History,Scope,andPurpose,2836]
United States v. State of New Mexico and Sandoval County, No. 88-1457 (D.N.M. 1990) –
Also Sec. 203 [EvidenceofContinuingNeed, 4029-30, 4035; History,Scope,andPurpose,2837]
United States v. Cibola County, No. 93-1134 (D.N.M. 2004) – Also Sec. 203 [Evidenceof
ContinuingNeed, 4033-35; History,Scope,andPurpose,2837]
United States v. Socorro County, No. 93-1244 (D.N.M. 1994) – Also Sec. 203 [Evidenceof
ContinuingNeed, 4030-31; History,Scope,andPurpose,2837]
United States v. Bernalillo County, No. 98-156 (D.N. M. 1998) [History,Scope,andPurpose,
2838]
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New York (3)
United Parents Association v. Bd. Of Elections, No. 89 CIV 0612 (E.D.N.Y.) [Evidenceof
ContinuingNeed, 1889]
Arbor Hill Concerned Citizens Neighborhood Ass’n, No. 1:03cv502 (N.D.N.Y.)
Montano v. Suffolk County Legislature, No. 2:03cv1506 (E.D.N.Y.)
North Carolina (13)
NAACP v. City of Statesville, 606 F. Supp. 569 (W.D.N.C. 1985) [EvidenceofContinuing
Need,1763, 1785-86]
NAACP v. Forsyth County, No. 6:86cv803 (M.D.N.C.) [EvidenceofContinuingNeed, 1764,
1787]
NAACP v. City of Thomasville, No. 4:86cv291 (M.D.N.C. 1987) [EvidenceofContinuing
Need,1764, 1786]
NAACP of Stanley Co. v. City of Albemarle, No. 4:87cv468 (M.D.N.C.) [Evidenceof
ContinuingNeed, 1784]
NAACP v. Richmond County, No. 3:87cv484 (M.D.N.C.) [EvidenceofContinuingNeed, 1788]
NAACP v. Duplin Co., No. 88-5-CIV-7 (E.D.N.C.) [EvidenceofContinuingNeed, 1786]
Hall v. Kennedy, No. 88-117-CIV-3 (E.D.N.C.) [EvidenceofContinuingNeed, 1773-74]
Johnson v. Town of Benson, No. 88-240-CIV-5 (E.D.N.C.) [EvidenceofContinuingNeed,
1779]
Patterson v. Siler City, No. C-88-701 (M.D.N.C.) [EvidenceofContinuingNeed,923-24]
Sewell v. Town of Smithfield, No. 89cv360 (E.D.N.C.) [EvidenceofContinuingNeed, 1794]
Montgomery County Branch of the NAACP v. Montgomery County, No. 3:90cv27
(M.D.N.C.) [EvidenceofContinuingNeed, 1782-83]
NAACP v. Rowan-Salisbury Bd. of Educ., No. 4:91cv293 (M.D.N.C.) [EvidenceofContinuing
Need, 1789]
Rowsom v. Tyrrell County Bd. of Comm’rs, No. 2:93cv33 (E.D.N.C.) [EvidenceofContinuing
Need,953-54]
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North Dakota (1)
United States v. Benson County, D.N.D. [3-6-2000] [History,Scope,andPurpose,2838]
Pennsylvania (1)
United States v. Berks County, E.D. Pa. [2-25-2003] – Also Sec. 4(e), 208 [Evidenceof
ContinuingNeed, 4118, 4120-21, 4127; History,Scope,andPurpose,2839]
Rhode Island (1)
Metts v. Almond, No. 1:02cv204 (D.R.I.) [EvidenceofContinuingNeed, 4081-82, 4086]
Utah (1)
United States v. San Juan County, No. C-83-1286 (D. Utah, 1984) – Also Sec. 203 [Evidenceof
ContinuingNeed, 4058-59; History,Scope,andPurpose,2835]
South Dakota (4)
Buckanaga v. Sisseton Independent School District, South Dakota, 804 F.2d 469 (8th Cir.
1986) [EvidenceofContinuingNeed, 1999, 4514, 4731]
United States v. Day County and Enemy Swim Sanitary Dist., No. 1:99cv1024 (D.S.D.)
[EvidenceofContinuingNeed, 2000, 4403-04, 4425; History,Scope,andPurpose,2838]
Weddell v. Wagner Community School District, No. 4:02-4056 (D.S.D.) [Evidenceof
ContinuingNeed,1172-73]
Kirkie v. Buffalo County, No. 3:03cv3011 (D.S.D.) [EvidenceofContinuingNeed, 1171-72,
4734]
Tennessee (2)
United States v. City of Memphis, W.D. Tenn. [2-15-1991] [History,Scope,andPurpose,2838,
2837]
United States v. Crockett County, No. 1:01cv1129 (W.D. Tenn.) [History,Scope,andPurpose,
2839]
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, and KINSTON
CITIZENS FOR NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant,
and
JOSEPH M. TYSON, et al.
Defendant-Intervenors.
_______________________________________
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Civ. No.: 1:10-CV-00561-JDB
PLAINTIFFS’ RESPONSE TO DEFENDANT’S
STATEMENT OF UNCONTESTED MATERIAL FACTS
In response to Defendant’s motion for summary judgment and statement of uncontested material
facts (Doc. # 55, 55-4, 56), Plaintiffs do not submit that there are any genuine issues of material fact that
need to be litigated, because Plaintiffs submit that they themselves are entitled to summary judgment as a
matter of law, for the reasons set forth in their motion for summary judgment and statement of
uncontested material facts (Doc. # 23), as supplemented by their consolidated reply brief filed today.
As for Defendant’s statement of uncontested material facts, that statement fails to assert any
genuinely material facts, because the facts asserted would not create a triable issue even if disputed. In
general, the Defendant’s statement is almost entirely limited to: (1) legal characterizations of statutes and
regulations, which speak for themselves; and (2) factual assertions that are outside the legislative record,
which are legally irrelevant given this Court’s decision that “the constitutionality of [Section 5] must rise
or fall on the record that Congress created.” Shelby Cnty. v. Holder, 270 F.R.D. 16, 21 (D.D.C. 2010).
1
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Plaintiffs now specifically respond as follows:
1.
Not disputed.
2.
Not disputed.
3.
Not disputed.
4.
Not disputed.
5.
Paragraph 5 characterizes Kinston’s response to the Defendant’s objection to the
nonpartisan-elections referendum. Although not disputed as to the facts, Plaintiffs dispute that this
paragraph contains facts that are material to the issues to be decided on summary judgment.
6.
Paragraph 6 characterizes the Defendant’s approach to reviewing Section 5 preclearance
submissions. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because it relies on a declaration that was not part of the legislative record
before Congress. Moreover, Plaintiffs have no means of verifying its accuracy. This paragraph is
therefore not admitted.
7.
Paragraph 7 cites the Defendant’s Section 5 regulations. Those regulations speaks for
themselves, and Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment. This paragraph is therefore not admitted.
8.
Paragraph 8 notes the existence of a website and characterizes its contents. The existence
of the website and its contents speak for themselves, and Plaintiffs dispute that this paragraph contains
facts that are material to the issues to be decided on summary judgment. This paragraph is therefore not
admitted.
9.
Paragraph 9 characterizes 42 U.S.C. § 1973c.
That provision speaks for itself, and
Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment. This paragraph is therefore not admitted.
10.
Paragraph 10 characterizes 28 C.F.R. § 51.23. That provision speaks for itself, and
Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment. This paragraph is therefore not admitted.
2
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11.
Paragraph 11 notes the existence of a toll-free telephone number and characterizes its
usefulness. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because it relies on a declaration that was not part of the legislative record
before Congress. Moreover, Plaintiffs have no means of verifying the accuracy of the characterization of
the toll-free number. This paragraph is therefore not admitted.
12.
Paragraph 12 characterizes 28 C.F.R. § 51.34 and the Defendant’s approach to reviewing
Section 5 preclearance submissions. The cited regulation speaks for itself. Plaintiffs dispute that this
paragraph contains facts that are material to the issues to be decided on summary judgment, because it
relies on a declaration that was not part of the legislative record before Congress. Moreover, Plaintiffs
have no means of verifying the accuracy of the Defendant’s characterizations of policy. This paragraph is
therefore not admitted.
13.
Paragraph 13 characterizes the Defendant’s approach to reviewing Section 5 preclearance
submissions. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because it relies on a declaration that was not part of the legislative record
before Congress. Moreover, Plaintiffs have no means of verifying the accuracy of the Defendant’s
characterization of policy. This paragraph is therefore not admitted.
14.
Paragraph 14 characterizes the Defendant’s approach to reviewing Section 5 preclearance
submissions. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because this paragraph relies on a declaration that was not part of the
legislative record before Congress. Moreover, Plaintiffs have no means of verifying the accuracy of the
Defendant’s characterizations of policy. This paragraph is therefore not admitted.
15.
Paragraph 15 notes the existence of a website and characterizes its usefulness. Plaintiffs
dispute that this paragraph contains facts that are material to the issues to be decided on summary
judgment, because this paragraph relies on a declaration that was not part of the legislative record before
Congress. Moreover, Plaintiffs have no means of verifying the accuracy of the characterization of the
website. This paragraph is therefore not admitted.
3
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16.
Paragraph 16 notes that certain information can be submitted to the Defendant via email.
Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment, because this paragraph relies on a declaration that was not part of the legislative
record before Congress. Moreover, Plaintiffs have no means of verifying the accuracy of the Defendant’s
characterizations of policy. This paragraph is therefore not admitted.
17.
Paragraph 17 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
18.
Paragraph 18 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
19.
Paragraph 19 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
20.
Paragraph 20 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
21.
Paragraph 21 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
22.
Paragraph 22 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
23.
Paragraph 23 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
4
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24.
Paragraph 24 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
25.
Paragraph 25 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
26.
Paragraph 26 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
27.
Paragraph 27 characterizes a provision of the Voting Rights Act concerning “bailout.”
That provision speaks for itself, and Plaintiffs dispute that this paragraph contains facts that are material
to the issues to be decided on summary judgment. This paragraph is therefore not admitted.
28.
Paragraph 28 characterizes the Defendant’s approach to reviewing “bailout” requests.
Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment, because this paragraph relies on a declaration outside the legislative record.
Moreover, Plaintiffs have no means of verifying the accuracy of the stated approach. This paragraph is
therefore not admitted.
29.
Paragraph 29 characterizes the Defendant’s approach to reviewing “bailout” requests.
Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment, because this paragraph relies on a declaration outside the legislative record.
Moreover, Plaintiffs have no means of verifying the accuracy of the stated approach. This paragraph is
therefore not admitted.
30.
Paragraph 30 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
5
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part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
31.
Paragraph 31 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
32.
Paragraph 32 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
33.
Paragraph 33 characterizes the Supreme Court’s opinion in Northwest Austin Municipal
Utility District Number One v. Holder, 129 S. Ct. 2504, 2513-17 (2009). That opinion speaks for itself,
and Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided on
summary judgment. This paragraph is therefore not admitted.
34.
Paragraph 34 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
35.
Paragraph 35 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
6
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judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
36.
Paragraph 36 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
37.
Paragraph 37 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
38.
Paragraph 38 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
39.
Paragraph 39 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
7
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part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
40.
Paragraph 40 consists of characterizations of statements made by Department of Justice
employee Robert Berman in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts that are material to the issues
to be decided on summary judgment, because Mr. Berman’s analysis of bailed-out jurisdictions was not
part of the legislative record before Congress. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
41.
Paragraph 41 characterizes Plaintiffs’ summary-judgment memorandum. Plaintiffs do
not dispute that they made the statement “In five covered States, registration and turnout was higher for
blacks than whites in 2004, and in Louisiana and South Carolina, the gap between black and white voters
was lower than the national average” on page 19 of their summary-judgment memorandum. Plaintiffs,
however, do dispute that they made the statement “African-American voter turnout in the 2004
presidential election was actually higher than white turnout in three fully-covered states and was within
5% in two others” on pages 19 through 20 of their summary-judgment memorandum (or anywhere else in
their memorandum).
42.
Paragraph 42 characterizes racial data on turnout and registration. Defendants state that
“[t]he 2006 House Report included data on disparities between white and black turnout and registration.”
Plaintiffs do not dispute that statement, though the 2006 House Report speaks for itself. Defendants also
characterize purported flaws in the House Report concerning white non-Hispanic registration and turnout,
as identified in the district court’s opinion in Northwest Austin Municipal Utility District Number One v.
Holder, 573 F. Supp. 2d 221, 248 (D.D.C. 2008), rev’d, 129 S. Ct. 2504 (2009). Plaintiffs dispute that the
Defendant’s characterization of purported flaws in the House Report contains facts that are materials to
the issues to be decided on summary judgment, because the district court’s opinion was not part of the
legislative record before Congress. Moreover, the legislative record reveals that separating Hispanics
from whites had no material effect on the data for most of the covered States. See Continuing Need for
8
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Section 203’s Provisions for Limited English Proficient Voters, Hearing before the S. Comm. on the
Judiciary, 109th Cong. (2006) at 147-48 (submission of Charles S. Bullock III & Ronald Keith Gaddie,
Impact of Using Non-Hispanic White Data (American Enterprise Institute, 2006)). The Defendant’s
characterization of purported flaws in the House Report is therefore not admitted.
43.
Paragraph 43 characterizes flaws in the 2006 House Report’s analysis of racial data on
turnout and registration, as discussed in the district court opinion in Northwest Austin. Plaintiffs dispute
that the Defendant’s characterization of purported flaws in the House Report contains facts that are
materials to the issues to be decided on summary judgment, because the district court’s opinion was not
part of the legislative record before Congress. Moreover, the legislative record reveals that separating
Hispanics from whites had no material effect on the data for most of the covered States. See Continuing
Need for Section 203’s Provisions for Limited English Proficient Voters, Hearing before the S. Comm. on
the Judiciary, 109th Cong. (2006) at 147-48 (submission of Charles S. Bullock III & Ronald Keith
Gaddie, Impact of Using Non-Hispanic White Data (American Enterprise Institute, 2006)).
The
Defendant’s characterization of purported flaws in the House Report is therefore not admitted.
44.
Paragraph 44 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
45.
Paragraph 45 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
9
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decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
46.
Paragraph 46 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
47.
Paragraph 47 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
48.
Paragraph 48 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
10
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judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
49.
Paragraph 49 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
50.
Paragraph 50 consists of characterizations of statements made by Department of Justice
employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
51.
Paragraph 51 consists of characterizations of statements made by Department of Justice
11
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employee Peyton McCrary in a declaration submitted in support of the Defendant’s motion for summary
judgment in this action. Plaintiffs dispute that this paragraph contains facts material to the issues to be
decided on summary judgment, because Mr. McCrary’s analysis of Section 2 litigation was not part of the
legislative record before Congress.
Furthermore, Plaintiffs have not verified the accuracy of this
paragraph’s characterization of non-record materials, or its characterization of the legislative record,
which speaks for itself. Moreover, for the reasons given in Plaintiffs’ submissions, the legislative record
reveals that there was no material difference in Section 2 litigation between covered and non-covered
jurisdictions. This paragraph is therefore not admitted.
12
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August 15, 2011
Respectfully submitted,
/s/ Michael A. Carvin
_______________________________________
Michael A. Carvin (D.C. Bar No. 366784)
Noel J. Francisco (D.C. Bar No. 464752)
Hashim M. Mooppan (D.C. Bar No. 981758)
David J. Strandness (D.C. Bar No. 987194)
JONES DAY
51 Louisiana Ave. NW
Washington D.C. 20001
(202) 879-3939
Michael E. Rosman (D.C. Bar No. 454002)
Michelle A. Scott (D.C. Bar No. 489097)
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington D.C. 20036
(202) 833-8400
Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, and KINSTON
CITIZENS FOR NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant,
and
JOSEPH M. TYSON, et al.
Defendant-Intervenors.
_______________________________________
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Civ. No.: 1:10-CV-00561-JDB
PLAINTIFFS’ RESPONSE TO INTERVENORS’
STATEMENT OF UNCONTESTED MATERIAL FACTS
In response to Intervenors’ motion for summary judgment and statement of uncontested material
facts (Doc. # 54), Plaintiffs do not submit that there are any genuine issues of material fact that need to be
litigated, because Plaintiffs submit that they themselves are entitled to summary judgment as a matter of
law, for the reasons set forth in their motion for summary judgment and statement of uncontested material
facts (Doc. # 23), as supplemented by their consolidated reply brief filed today.
As for Intervenors’ statement of uncontested material facts, that statement fails to assert any
genuinely material facts, because the facts asserted would not create a triable issue even if disputed. In
general, the Intervenors’ statement is almost entirely limited to: (1) factual assertions that are outside the
legislative record, which are legally irrelevant given this Court’s decision that “the constitutionality of
[Section 5] must rise or fall on the record that Congress created.” Shelby Cnty. v. Holder, 270 F.R.D. 16,
21 (D.D.C. 2010); and (2) factual assertions that are specific to North Carolina, which are legally
1
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irrelevant given that this is a facial challenge to Section 5, as reauthorized and amended in 2006.
1
Plaintiffs now specifically respond to Intervenors’ statement as follows:
1.
Paragraph 1 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
This paragraph also cites no supporting materials whatsoever. This paragraph is therefore not admitted.
2.
Paragraph 2 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
3.
Paragraph 3 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
4.
Paragraph 4 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
5.
Paragraph 5 characterizes the effect of the Voting Rights Act on voting discrimination in
1
Intervenors also adopt by reference the Joint Statement of Uncontested Material Facts filed by the various
intervenors in Shelby County v. Holder, No. 10-651 (D.D.C.) (Doc. # 57). That lengthy statement consisted almost
entirely of characterizations of the legislative record. In general, Plaintiffs respond that the legislative record speaks
for itself, and that the Joint Statement’s selective characterizations of the legislative record failed to accurately
reflect the entirety of the legislative record and largely failed to assert facts that are material to the issues to be
decided on summary judgment. Plaintiffs further adopt by reference Shelby County’s specific responses to the Joint
Statement in Shelby County v. Holder, No. 10-651 (D.D.C.) (Doc. #65-1).
2
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North Carolina. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because it does not depend on the legislative record before Congress,
and because it is specific to North Carolina.
This paragraph also cites no supporting materials
whatsoever. This paragraph is therefore not admitted.
6.
Paragraph 6 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials.
This paragraph is therefore not admitted.
7.
Paragraph 7 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
8.
Paragraph 8 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
9.
Paragraph 9 characterizes voting discrimination in North Carolina. Plaintiffs dispute that
this paragraph contains facts that are material to the issues to be decided on summary judgment, because
it does not depend on the legislative record before Congress, and because it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record materials. This
paragraph is therefore not admitted.
10.
Paragraph 10 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
3
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because it does not depend on the legislative record before Congress, and because it is specific to North
Carolina. Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record
materials. This paragraph is therefore not admitted.
11.
Paragraph 11 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it does not depend on the legislative record before Congress, and because it is specific to North
Carolina. Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record
materials. This paragraph is therefore not admitted.
12.
Paragraph 12 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
13.
Paragraph 13 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it does not depend on the legislative record before Congress, and because it is specific to North
Carolina. Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record
materials. This paragraph is therefore not admitted.
14.
Paragraph 14 characterizes the 1982 legislative record with respect to voting
discrimination in North Carolina. Plaintiffs dispute that this paragraph contains facts that are material to
the issues to be decided on summary judgment, because it does not depend on the legislative record
before the 2006 Congress, and because it is specific to North Carolina. Plaintiffs have not verified the
accuracy of this paragraph’s characterization of non-2006-record materials. This paragraph is therefore
not admitted.
15.
Paragraph 15 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
4
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because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
16.
Paragraph 16 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
17.
Paragraph 17 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
18.
Paragraph 18 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
19.
Paragraph 19 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
20.
Paragraph 20 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it is specific to North Carolina. Plaintiffs have not verified the accuracy of this paragraph’s
5
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characterization of the legislative record, which speaks for itself.
This paragraph is therefore not
admitted.
21.
Paragraph 21 characterizes the effect of the Voting Rights Act on voting discrimination
in North Carolina. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be
decided on summary judgment, because it is specific to North Carolina. Plaintiffs have not verified the
accuracy of this paragraph’s characterization of the legislative record, which speaks for itself. This
paragraph is therefore not admitted.
22.
Paragraph 22 characterizes Section 5 objections by the Department of Justice in North
Carolina. Plaintiffs dispute that this paragraph contains facts that are material to the issues to be decided
on summary judgment, because it does not depend on the legislative record before Congress, and because
it is specific to North Carolina.
Plaintiffs have not verified the accuracy of this paragraph’s
characterization of non-record materials. This paragraph is therefore not admitted.
23.
Paragraph 23 characterizes voting discrimination in North Carolina. Plaintiffs dispute
that this paragraph contains facts that are material to the issues to be decided on summary judgment,
because it does not depend on the legislative record before Congress, and because it is specific to North
Carolina. Plaintiffs have not verified the accuracy of this paragraph’s characterization of non-record
materials. This paragraph is therefore not admitted.
6
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August 15, 2011
Respectfully submitted,
/s/ Michael A. Carvin
_______________________________________
Michael A. Carvin (D.C. Bar No. 366784)
Noel J. Francisco (D.C. Bar No. 464752)
Hashim M. Mooppan (D.C. Bar No. 981758)
David J. Strandness (D.C. Bar No. 987194)
JONES DAY
51 Louisiana Ave. NW
Washington D.C. 20001
(202) 879-3939
Michael E. Rosman (D.C. Bar No. 454002)
Michelle A. Scott (D.C. Bar No. 489097)
CENTER FOR INDIVIDUAL RIGHTS
1233 20th St. NW, Suite 300
Washington D.C. 20036
(202) 833-8400
Attorneys for Plaintiffs
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_______________________________________
STEPHEN LAROQUE, ANTHONY CUOMO,
JOHN NIX, KLAY NORTHRUP, and KINSTON
CITIZENS FOR NON-PARTISAN VOTING,
Plaintiffs,
v.
ERIC H. HOLDER, JR.
ATTORNEY GENERAL OF THE
UNITED STATES
Defendant,
and
JOSEPH M. TYSON, et al.,
Defendant-Intervenors.
_______________________________________
)
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Civ. No.: 1:10-CV-00561-JDB
EXHIBIT C: NIX CAMPAIGN WEBPAGE,
http://www.nixforcouncil.com
JA213
John Nix for Kinston City Council 2011
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'
Post-Election Statement
"I want to make it very clear to everyone that my
"defeat" November 8 in the Kinston City Council race
was not a defeat at all. It was an education into the
inequities found in Kinston's partisan electorial
system and only allows me to adjust my sights. For
the record, I intend to run for Kinston City Council in
2013. Thanks again to all my supporters!"
Home
Biography
Get Involved
I need your help to win
in November. There
are several ways you
can make a difference
in this year's elections.
— John Nix, 11/09/2011
Vote Nix for City
Council
"I became interested in running for City Council after watching the decisions City
Council has made over the past several years. I resolved to get involved in helping
to make the decisions that drive our economy and determine the type of city we
live in. I care about Kinston’s future."
— John Nix
Unaffiliated candidate for
Kinston City Council, 2011
Key Position Points...
z
R ed u ction of Lon g-T erm D ebt
Especially in a down economy and with a reduced tax base, prudent spending
habits should be a norm. Instead, we have seen an increase in spending.
Tacking on debt for future generations is not responsible. Those who govern
must realize that we need to live within our means. Growth will come when our
financial house is in order.
z
R ed u ce N on -E ssen tialSp en d in g
z
In frastru ctu re
Make Phone Calls
Go Door-to-Door
Put up a yard sign
Help with Fundraising
Work outside the polls
Make a Contribution
Wear a t-shirt
Your participation will
make a big difference.
Help me get my
message out into the
community. Contact
me to get involved how
you're most
comfortable.
A p p earan ce on T h e
R eece G ard n er Sh ow
Focus should be on maintaining and improving our infrastructure to include
roads, underground utilities, parks, public buildings and properties. Quality vs.
Quantity.
z
C itizen A d visory B oard s & C om m ission s
These boards and commissions should play a larger role in the decision making
process. The Commissions and Boards should be structured so they have quasimanagerial functionality. To be effective, there needs to be open dialogue
between department heads, commissions and boards, and Council. Not just a
rubber-stamp, but valuable input and direction.
z
Click here to watch the
video online. My segement
starts around 15:35 in the
show.
P rivatization of Services
Many of the services the City provides can be provided by the private sector
through contract services. Cost savings can be from 5% to 20% typically. A
large part of these savings come from elimination the high cost of benefits such
as health care, holidays, sick leave, vacation, and pensions. In most instances,
city employees are hired by the contractor and benefits become the
responiblitity of the contractor, not the tax payer. Proper administration of
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John Nix for Kinston City Council 2011
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these services on the governmental side is critical, but in doing so, helps to
create a healthy competitive market.
Privatization creates a healthy competitive market and puts the jobs back in the
private sector where they belong. City owned buildings and equipment can be
leased or sold to contract agencies.
Why I want to serve Kinston...
It will take principled individuals for the new Council to successfully move forward.
If elected, I will inherit a history of high utility costs. As Duke Energy and Progress
Energy continue to negotiate a merger, we can only wait and continue to work with
the other leaders from neighboring municipalities.
The decisions we make today effect generations to come, as we have seen with
Electricities. I own a business. My spending is income dependent. If I have a
reduced income, I have the option of finding more work or cut expenses to match
my income. The same principles must apply to government. We cannot continue to
leverage ourselves through bonds and borrowing and tax and rate increases. We
the people are tired of the irresponsible spending.
I contend that too often we get quite comfortable with things and just feel that it
would useless to complain. I encourage the taxpayer to challenge ideas and policies
if he or she believes them to be not in the best interest of the public.
I also believe we can find savings internally. Big government is expensive. In fact, I
think we would all agree that the bigger the government the more expensive it is.
Somebody else makes poor financial decisions and WE the people are the ones that
pay….and our Children, and their children and so on. Raising taxes and rates is NOT
the answer. Period.
Making informed decisions, not hasty ones, will lead us down the right path and
build on the solid foundation we already have. I believe that you and I should keep
more of our money. I believe the purpose of government is to provide for the
people only what the private sector cannot. I believe in open government wherein
the citizens are informed.
I am asking for your vote.
Please Vote John Nix for City Council!
Home • Biography • Get Involved • Volunteer Opportunities • Contribute
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John Nix for Kinston City Council 2011
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Paid for by John Nix for City Council
Email: john@matrixeast.net • Office: 252.522.2500 • Cell: 252.560.2150
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
___________________________________________
)
STEPHEN LAROQUE, ANTHONY
)
CUOMO, JOHN NIX, KLAY
)
NORTHROP, LEE RAYNOR, and
)
KINSTON CITIZENS FOR NON)
PARTISAN VOTING,
)
Plaintiffs,
)
)
v.
)
)
ERIC HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES,
)
)
Defendant.
)
)
and
)
)
JOSEPH M. TYSON, et al.,
)
)
Defendant-Intervenors.
)
__________________________________________)
Civil Action No.: 1:10-CV-561-JDB
EXHIBIT 1: U.S. Census Bureau, 2010 Census Redistricting Data (Public Law 94-171),
Summary File, Tables P1, P2, P3, P4, H1
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QT-PL
Race, Hispanic or Latino, Age, and Housing Occupancy: 2010
2010 Census Redistricting Data (Public Law 94-171) Summary File
NOTE: For information on confidentiality protection, nonsampling error, and definitions, see http://www.census.gov/prod/cen2010/pl94-171.pdf
NOTE: Change to the California,Connecticut,Mississippi,New Hampshire,Virginia, and Washington P. L. 94-171 Summary Files as delivered.
Geography: Kinston city, North Carolina
Subject
Total
Number
POPULATION
Total population
RACE
One race
White
Black or African American
American Indian and Alaska Native
Asian
Native Hawaiian and Other Pacific Islander
Some Other Race
Two or More Races
HISPANIC OR LATINO AND RACE
Hispanic or Latino (of any race)
Not Hispanic or Latino
One race
White
Black or African American
American Indian and Alaska Native
Asian
Native Hawaiian and Other Pacific Islander
Some Other Race
Two or More Races
HOUSING UNITS
Total Housing Units
OCCUPANCY STATUS
Occupied housing units
Vacant housing units
18 years and over
Percent
Number
Percent
21,677
100.0
16,553
100.0
21,399
6,211
14,749
50
98.7
28.7
68.0
0.2
16,421
5,323
10,781
42
99.2
32.2
65.1
0.3
152
12
225
278
0.7
0.1
1.0
1.3
113
11
151
132
0.7
0.1
0.9
0.8
512
21,165
20,922
6,022
2.4
97.6
96.5
27.8
333
16,220
16,107
5,202
2.0
98.0
97.3
31.4
14,673
41
146
12
28
243
67.7
0.2
0.7
0.1
0.1
1.1
10,740
34
111
11
9
113
64.9
0.2
0.7
0.1
0.1
0.7
10,862
100.0
9,365
1,497
86.2
13.8
X Not applicable
Source: U.S. Census Bureau, 2010 Census.
2010 Census Redistricting Data (Public Law 94-171) Summary File, Tables P1, P2, P3, P4, H1.
1 of 1
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
No. 1:10-CV-00561-JDB
___________________________________________
)
STEPHEN LAROQUE, ANTHONY
)
CUOMO, JOHN NIX, KLAY
)
NORTHROP, LEE RAYNOR, and
)
KINSTON CITIZENS FOR NON)
PARTISAN VOTING,
)
Plaintiffs,
)
)
v.
)
)
ERIC HOLDER, JR.
)
ATTORNEY GENERAL OF THE
)
UNITED STATES,
)
)
Defendant.
)
)
and
)
)
JOSEPH M. TYSON, et al.,
)
)
Defendant-Intervenors.
)
__________________________________________)
Civil Action No.: 1:10-CV-561-JDB
EXHIBIT 2: Second Declaration of Courtney M. Patterson
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE, et al.
Plaintiffs,
v.
Civil Action No. 10-0561 (JDB)
ERIC H. HOLDER, Jr., in his official
capacity as Attorney General of the United
States,
Defendant.
MEMORANDUM OPINION
Plaintiffs, four private citizens and a private membership association, bring a facial
challenge to the constitutionality of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §
1973c, and the 2006 amendments to Section 5, 42 U.S.C. § 1973c(b)-(d). Section 5, as amended,
prevents certain "covered" jurisdictions from implementing any change to voting practices or
procedures unless and until the jurisdiction demonstrates to federal authorities that the change
"neither has the purpose nor will have the effect of denying or abridging the right to vote on
account of race or color." 42 U.S.C. § 1973c(a).
Plaintiffs are residents of Kinston, North Carolina. In November 2008, Kinston voters
adopted a referendum that would have replaced the city's current partisan electoral system with a
nonpartisan system, in which anyone could run for local office and no candidate would be
affiliated with any political party on the ballot. See Compl. ¶¶ 1, 14-15. Because Kinston is a
covered jurisdiction under Section 5, it submitted its proposed voting change to the Attorney
General for "preclearance" (i.e., approval) under Section 5. The Attorney General declined to
1
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preclear the referendum on the ground that "elimination of party affiliation on the ballot will
likely reduce the ability of blacks to elect candidates of choice." Id. ¶ 19. Kinston did not seek
administrative reconsideration of the Attorney General's objection, nor did it seek a declaratory
judgment from this Court authorizing the proposed electoral change. In April 2010, however,
plaintiffs, proponents of the nonpartisan-election referendum, filed this action. Plaintiffs argue
that Section 5, as reauthorized and as amended in 2006, exceeds Congress's enforcement
authority under the Fourteenth and Fifteenth Amendments (Count I) and that the 2006
amendments to Section 5 violate the nondiscrimination guarantees of the Fifth, Fourteenth and
Fifteenth Amendments (Count II). See id. ¶¶ 1, 33-34, 36-37.
On December 20, 2010, this Court granted defendant's Motion to Dismiss [Docket Entry
11] on the ground that plaintiffs lacked standing to bring their claims. See LaRoque v. Holder,
755 F. Supp. 2d 156 (D.D.C. 2010) ("LaRoque I"). On July 8, 2011, the D.C. Circuit reversed,
concluding that plaintiffs had standing to bring Count I and directing this Court to consider the
merits of that claim. LaRoque v. Holder, 650 F.3d 777, 793, 796 (D.C. Cir. 2011) ("LaRoque
II"). The D.C. Circuit also directed this Court to consider whether plaintiffs had standing to
bring Count II, and, if so, to resolve the merits of that claim. Id. at 795-96. Shortly after the
D.C. Circuit's decision, this Court decided another challenge to Section 5 brought by Shelby
County, Alabama, in an opinion that involved some of the same issues raised here. Shelby
Cnty., Ala. v. Holder, --- F. Supp. 2d ---, No. 10-651, 2011 WL 4375001 (D.D.C. Sept. 21,
2011). This Court concluded in Shelby County that Congress did not exceed its enforcement
powers in reauthorizing Section 5's preclearance procedure in 2006. That decision resolves part
of plaintiffs' Count I claim here.
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Two of plaintiffs' remaining contentions, however, raise significant issues that have not
been addressed in any other decision on Section 5 and the Voting Rights Act. These claims
revolve around three amendments to Section 5 that Congress enacted in 2006. 42 U.S.C. §
1973c(b)-(d). The three amendments made two substantive changes to the standard applied in
deciding whether a voting practice or procedure should be precleared under Section 5. Plaintiffs
contend that the 2006 amendments exceed Congress's enforcement powers under the Fourteenth
and Fifteenth Amendments -- an argument no other challenger to the reauthorization of Section 5
has raised. Plaintiffs also contend that the amendments violate the equal protection component
of the Due Process Clause of the Fifth Amendment, the federal government's equivalent of the
Equal Protection Clause of the Fourteenth Amendment. This appears to be the first facial
challenge to a portion of Section 5 under equal protection principles. It is perhaps startling that
plaintiffs claim that Section 5, a law "[p]raised by some as the centerpiece of the most effective
civil rights legislation ever enacted," is actually racially discriminatory. See Shelby County,
2011 WL 4375001, at *1. Nonetheless, plaintiffs argue that Congress, in its effort to counteract
years of discrimination against minority voters, has overreached and harmed the interests of
white voters like plaintiffs.
These two challenges call for different analyses and implicate different sets of caselaw,
but both, at bottom, ask how urgent the need for Congressional legislation was in 2006 and how
well Congress crafted the challenged legislation. Guided by the abundant Congressional record
and the Supreme Court's caselaw on Congress's enforcement powers and equal protection
principles, this Court concludes that the 2006 amendments to Section 5 are a careful solution to a
vitally important problem. It therefore holds that the amendments do not violate the Constitution
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and that plaintiffs' facial challenges must be denied.
BACKGROUND
I. History of the Voting Rights Act
The history of the Voting Rights Act, and of Section 5 in particular, was discussed at
length in this Court's opinion in Shelby County. 2011 WL 4375001, at *2-15. That history need
not be repeated in full here, but a few important points bear emphasis. The Voting Rights Act
("the Act" or "the VRA") "was designed by Congress to banish the blight of racial discrimination
in voting." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). The Act's core prohibition
against racial discrimination in voting is contained in Section 2, which provides that "[n]o voting
qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or
applied by any State or political subdivision in a manner which results in a denial or abridgement
of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. §
1973. Section 2 and many other provisions of the Voting Rights Act are permanent and apply
nationwide.
In addition to the permanent, nationwide provisions, Sections 4(b) and 5 of Act impose
additional requirements on certain "covered" jurisdictions. Section 4(b) determines which
jurisdictions qualify as "covered." 42 U.S.C. § 1973b(b). Section 5 provides that a covered
jurisdiction cannot make any changes to its voting qualifications, standards, practices, or
procedures unless those changes are first "submitted to and approved by a three-judge Federal
District Court in Washington, D.C., or the Attorney General." Nw. Austin Mun. Util. Dist. No.
One v. Holder, 129 S. Ct. 2504, 2509 (2009) ("Nw. Austin II"); see 42 U.S.C. § 1973c(a).
"Preclearance" under Section 5 will only be granted if a jurisdiction can show that its proposed
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voting change "neither 'has the purpose nor will have the effect of denying or abridging the right
to vote on account of race or color.'" Nw. Austin II, 129 S. Ct. at 2509 (quoting 42 U.S.C. §
1973c(a)). Section 5 "shift[s] the advantage of time and inertia from the perpetrators of the evil
to its victims," Katzenbach, 383 U.S. at 328, by requiring covered jurisdictions to show that
changes are not discriminatory before they are enacted.
Section 5 was originally scheduled to sunset after five years, but Congress reauthorized it
in 1970 (for five years), 1975 (for seven years), 1982 (for twenty-five years), and 2006 (for
twenty-five years). Nw. Austin II, 129 S. Ct. at 2510. During the 2006 reauthorization,
Congress enacted three amendments to Section 5 that made two substantive changes to the scope
of the preclearance provision. Because of the importance of those changes to this litigation, the
portion of the Shelby County opinion describing the 2006 amendments is repeated in full here.
In the amendment codified at 42 U.S.C. § 1973c(c), Congress clarified its intent with
respect to the meaning of the word "purpose" in Section 5 in response to the Supreme Court's
decision in Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) ("Bossier II"). Section 5,
by its terms, only allows a voting change to be precleared if the change "neither has the purpose
nor will have the effect of denying or abridging the right to vote on account of race or color."
See 42 U.S.C. § 1973c(a). Prior to Bossier II, this provision was interpreted to bar preclearance
of voting changes that either (1) were enacted with a discriminatory purpose; or (2) had a
discriminatory, retrogressive effect -- i.e., changes that worsened the position of minority voters
relative to the status quo. See Bossier II, 528 U.S. at 324 (explaining that a redistricting plan
only has a prohibited discriminatory "effect" under Section 5 if it is retrogressive); Beer v.
United States, 425 U.S. 130, 141 (1976) (noting that "the purpose of s[ection] 5 has always been
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to insure that no voting-procedure changes would be made that would lead to a retrogression in
the position of racial minorities with respect to their effective exercise of the electoral
franchise"). In Bossier II, however, the Supreme Court -- for the first time -- held that the
"purpose" prong of Section 5 only prohibits electoral changes that are enacted with a
discriminatory and retrogressive purpose. See 528 U.S. at 341. In other words, after Bossier II,
a redistricting plan that was passed for purely discriminatory reasons (such as to purposefully
avoid the creation of a new majority-minority district), but that was not intended to make
minority voters any worse off than they had been under the preexisting plan (which, say, had no
majority-minority districts), would not run afoul of Section 5's "purpose" prong. See id.
(holding that Section 5 "does not prohibit preclearance of a redistricting plan with a
discriminatory but nonretrogressive purpose").
Bossier II thus had the effect of reading the "purpose" prong "almost entirely out of
Section 5." See House Hearing, 109th Cong. 12 (Nov. 1, 2005) (prepared statement of Mark A.
Posner).1 As was the case prior to Bossier II, if a jurisdiction enacted an electoral change that
reduced the ability of minority voters to elect candidates of their choice, the change would be
denied preclearance under Section 5's "effects" prong (because it would have a retrogressive
effect). Under Bossier II, then, the "purpose" prong would only serve as an independent bar to
discriminatory voting changes where a jurisdiction "intend[ed] to cause retrogression, but then,
somehow, messe[d] up and enact[ed] a voting change that [did] not actually cause retrogression
to occur (the so-called 'incompetent retrogressor')." Id.
1
For readability, the Court will use this short form for the many legislative hearings
cited throughout this opinion. An appendix to the opinion provides the full citation for each
hearing, along with information on where to find electronic copies of the hearings.
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In 2006, the House Judiciary Committee explained that Bossier II's limitation of the
"purpose" prong had been inconsistent with Congress's intent that Section 5 prevent not only
purposefully retrogressive discriminatory voting changes, but also those "[v]oting changes that
'purposefully' keep minority groups 'in their place.'" See H.R. Rep. No. 109-478, at 68.
Accordingly, as part of the 2006 Amendments, Congress restored the pre-Bossier II "purpose"
standard by adding a provision to the statute that defined "purpose" in Section 5 to mean "any
discriminatory purpose." See Pub. L. No. 109-246, § 5(c), 120 Stat. 577, 581 (2006); 42 U.S.C.
§ 1973c(c) (emphasis added).
In a similar vein, Congress also responded to the Supreme Court's decision in Georgia v.
Ashcroft, 539 U.S. 461 (2003), which had altered the preexisting standard for determining
whether a voting change had a prohibited retrogressive effect under Section 5's "effects" prong.
Prior to Georgia v. Ashcroft, the standard for assessing whether an electoral change violated the
Section 5 "effects" test was "'whether the ability of minority groups to participate in the political
process and to elect their choices to office is . . . diminished . . . by the change affecting voting.'"
Beer, 425 U.S. at 141(quoting H.R. Rep. No. 94-196, at 60) (emphasis omitted). In Georgia v.
Ashcroft, however, the Court endorsed a less rigid, "totality of the circumstances" analysis for
examining retrogressive effects, explaining that "any assessment of the retrogression of a
minority group's effective exercise of the electoral franchise depends on an examination of all
the relevant circumstances, such as the ability of minority voters to elect their candidate of
choice, the extent of the minority group's opportunity to participate in the political process, and
the feasibility of creating a nonretrogressive plan." 539 U.S. at 479. In reauthorizing the Act in
2006, Congress expressed concern that the Georgia v. Ashcroft framework had introduced
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"substantial uncertainty" into the administration of a statute that was "specifically intended to
block persistent and shifting efforts to limit the effectiveness of minority political participation."
See H.R. Rep. No. 109-478, at 70 (internal quotation marks and citation omitted). Hence, in an
attempt to restore the simpler, "ability to elect" analysis articulated in Beer, see id. at 71,
Congress added new language to the Act, stating that all voting changes that diminish the ability
of minorities "to elect their preferred candidates of choice" should be denied preclearance under
Section 5. See Pub. L. No. 109-246, §§ 5(b), (d), 120 Stat. at 581; 42 U.S.C. §§ 1973c(b), (d).
II. Challenges to Section 5
Section 4(b)'s coverage formula and Section 5's preclearance regime have been
repeatedly upheld against constitutional challenges. Katzenbach, 383 U.S. at 337 (upholding
Section 5 after 1965 authorization); City of Rome v. United States, 446 U.S. 156, 183 (1980)
(upholding Section 5 after 1975 reauthorization); Lopez v. Monterey Cnty., 525 U.S. 266, 28283 (1999) (upholding Section 5 after 1982 reauthorization in narrow as-applied challenge). The
2006 reauthorization drew another set of constitutional challenges. Only days after the
reauthorization, a municipal utility district in Texas brought suit seeking to bail out of the Act's
requirements or to challenge Section 5 on its face as "an unconstitutional overextension of
Congress's enforcement power to remedy past violations of the Fifteenth Amendment." See Nw.
Mun. Util. Dist. No. One v. Holder, 573 F. Supp. 2d 221, 230 (D.D.C. 2008) ("Nw. Austin I"),
rev'd and remanded, Nw. Austin II, 129 S. Ct. 2504 (2009) (internal quotation marks and citation
omitted); see also LaRoque I, 755 F. Supp. 2d at 161 n.2 (describing procedure by which a
jurisdiction may "bail out" of Section 5 and terminate its obligation to seek preclearance for
election changes). A three-judge panel of this court found that the utility district was not eligible
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for bailout and that Section 5 was constitutional. Nw. Austin I, 573 F. Supp. 2d at 283. The
utility district appealed, and the Supreme Court reversed. Nw. Austin II, 129 S. Ct. at 2517.
The Supreme Court avoided the constitutional question by finding that the utility district
was statutorily eligible for bailout. Id. Although the Court therefore did not decide the
constitutional question, it noted that "the Act imposes current burdens and must be justified by
current needs." Id. at 2512. In light of the unquestioned improvement in minority voter
registration and turnout since the Act's passage in 1965, the Court warned that "[t]he Act's
preclearance requirements and its coverage formula raise serious constitutional questions." Id. at
2513.
Ten months after the Supreme Court's decision in Northwest Austin, Shelby County,
Alabama filed a lawsuit challenging Section 5 on its face as beyond Congress's powers to
enforce the Fourteenth and Fifteenth Amendments. 2011 WL 4375001, at *16-18. This Court
upheld the constitutionality of Section 5, see id. at *80, and that decision is currently on appeal
to the D.C. Circuit.
III. Kinston, North Carolina
The plaintiffs in this case filed their complaint on April 7, 2010, a few weeks before
Shelby County was filed. See Compl. at 13. As described in this Court's previous opinion in
this case, see LaRoque I, 755 F. Supp. 2d at 156, the present action stems from an attempt by
voters in the city of Kinston, North Carolina to alter the partisan nature of Kinston's local
election system. See Compl. ¶ 1. Currently, a prospective candidate for political office in
Kinston must either be the winner of a party primary or an unaffiliated candidate who obtains a
sufficient number of signatures to have his or her name placed on the ballot. See id. In
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November 2008, Kinston voters -- by an almost 2 to 1 margin -- passed a referendum that would
have amended the Kinston city charter to allow for nonpartisan elections, under which any
individual would be allowed to run for local political office and no candidate would be affiliated
with any political party on the ballot. See id. ¶¶ 1, 14-15.
Kinston is a political subdivision of Lenoir County, North Carolina, which is a covered
jurisdiction, and hence Kinston, too, is subject to the provisions of Section 5. See Compl. ¶ 16;
28 C.F.R. pt. 51, 30 Fed. Reg. 9897 (Aug. 7, 1965) (Section 5 coverage determination for Lenoir
County, North Carolina); 28 C.F.R. § 51.6 (noting that "all political subunits within a covered
jurisdiction . . . are subject to the requirement of section 5"). Rather than seek bailout under
Section 4(a) of the Voting Rights Act, or a declaratory judgment from a three-judge panel of this
Court authorizing its proposed electoral change, Kinston submitted the proposed change to the
Attorney General for preclearance. See Compl. ¶ 16. On August 17, 2009, the Attorney General
issued a letter objecting to Kinston's proposed system of nonpartisan elections, on the ground
that the "elimination of party affiliation on the ballot will likely reduce the ability of blacks to
elect candidates of choice." Def.'s Mem. in Opp. to Plfs.' Mot. for Summ. J. ("Def.'s Opp.")
[Docket Entry 55], Statement of Facts, Ex. 2, at 2 (objection letter). As the Attorney General
explained, minority-preferred candidates in Kinston tend to be Democrats. Id. Statistical
analysis showed that such minority-preferred candidates needed a small amount of white
crossover voting to be elected, but that most white voters -- even Democrats -- would vote for a
white Republican over a black Democrat. Id. Some white Democrats, however, "maintain[ed]
strong party allegiance and w[ould] continue to vote along party lines, regardless of the race of
the candidate," often by voting a straight Democratic ticket. Id. The Attorney General found
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that switching to a nonpartisan election system would eliminate minority-preferred candidates'
ability to "appeal to [Democratic] party loyalty" and to benefit from straight-ticket voting. Id.
Hence, "[r]emoving the partisan cue in municipal elections will, in all likelihood, eliminate the
single factor that allows black candidates to be elected to office." Id. The Attorney General
therefore refused to preclear the referendum. Id. at 3. On November 16, 2009, the Kinston City
Council voted not to seek administrative reconsideration of the Attorney General's objection or a
de novo review by this Court of Kinston's proposed change to nonpartisan elections. See Def.'s
Mem. in Supp. of Mot. to Dismiss [Docket 11], Ex. 1, Kinston City Council Meeting Minutes, at
19.
Plaintiffs then filed this suit against the Attorney General. Plaintiffs are four2 Kinston
residents who are registered voters there, as well as a private membership association, the
Kinston Citizens for Non-Partisan Voting ("KCNV"), which is "dedicated to eliminating the use
of partisan affiliation in Kinston municipal elections." Compl. ¶¶ 2-7. The citizen-plaintiffs all
allege that they either campaigned or voted for the November 2008 referendum. See id. ¶¶ 2-6.
Two of the five claimed that they intended to run for election to the Kinston City Council in
November 2011; one of those later dropped out of the race. Id. ¶¶ 3-4; Plfs.' Notice of Filing at 1
[Docket Entry 57]. The remaining candidate, John Nix, alleges that as a registered Republican
voter running for office in a predominantly Democratic jurisdiction he has "a direct interest" in
running "on a ballot where he is unaffiliated with any party, against opponents similarly
unaffiliated, and without the preliminary need to either run in a party primary or obtain sufficient
signatures to obtain access to the ballot as a candidate." Compl. ¶ 3. All plaintiffs allege that the
2
The complaint lists five citizen plaintiffs, but plaintiff Lee Raynor died on February 20,
2011. Plfs.' Notice of Filing at 1 [Docket Entry 57].
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Attorney General's "denial of Section 5 preclearance . . . completely nullified all of Plaintiffs'
efforts in support of the referendum." Id. ¶ 29. Plaintiffs further allege that Congress exceeded
its enforcement power in reauthorizing Section 5; that Congress exceeded its enforcement power
in enacting the amendments to Section 5 in 2006; and that the 2006 amendments violate the
equal protection component of the Due Process Clause of the Fifth Amendment. Id. ¶¶ 1, 33-34,
36-37. Although plaintiffs' complaint clearly raised as-applied claims, they insisted during the
first motions hearing in this case that they were raising only facial challenges to the statute. See
LaRoque I, 755 F. Supp. 2d at 162-63; see also LaRoque II, 650 F.3d at 783.
Six African-American Kinston residents, along with the North Carolina State Conference
of Branches of the National Association for the Advancement of Colored People, joined the case
in August 2010 as intervenors in support of the Attorney General. See Order Granting Tyson, et
al.'s Mot. to Intervene [Docket Entry 24]. On December 16, 2010, this Court granted the
government's Motion to Dismiss, and on December 20, 2010, the Court issued a memorandum
order explaining that plaintiffs lacked standing to bring this challenge. [Docket Entries 41, 42.]
The Court made separate findings as to the referendum proponents, prospective candidates, and
voters. First, the Court found that the weight of caselaw holds that referendum proponents do
not suffer a concrete injury that confers standing to sue when a later action allegedly nullifies the
effect of their ballot initiative. LaRoque I, 759 F. Supp. 2d at 169-73. Second, the Court found
that whether the two proposed candidates would actually run was too speculative to support
standing. Id. at 173-75. It further found that the prospective candidates had no legally protected
interest in a nonpartisan electoral system because they did not allege that partisan electoral
systems were illegal. Id. at 175-80. Third, the Court found that the voters had alleged too
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general an injury to their associational rights to support standing, and that they were not
prevented from supporting the candidates of their choice. Id. at 180-82. Finally, the Court found
that holding Section 5 unconstitutional would not revive the Kinston referendum, and that
plaintiffs' claims were therefore not redressable. Id. at 182-83.
Plaintiffs appealed and the D.C. Circuit reversed. Treating plaintiffs' claims as purely
facial, the D.C. Circuit addressed only whether Nix, the prospective candidate, had standing.
650 F.3d at 783. As relevant here, the D.C. Circuit examined the record and found that it was
not unduly speculative that Nix would run for office. Id. at 788-89. The D.C. Circuit further
found that the passage of the referendum had granted Nix a legally protected interest in a
nonpartisan election system. Id. at 786. Finally, the court explained that if Section 5 were
unconstitutional, the Attorney General's actions pursuit to it would be ultra vires and void. Id. at
790-91. The Attorney General's objection to the referendum would therefore be void, and the
referendum would go into effect as if the objection had never happened. Id. Hence, the D.C.
Circuit concluded that Nix had standing to pursue the Count I claim that the reauthorization of
Section 5 exceeded Congress's enforcement powers. Id. at 792.
The D.C. Circuit declined, however, to decide whether any plaintiff had standing to bring
Count II. Id. at 793-96. The court explained that Count II raised complex standing questions
that had not been fully briefed in either the district court or the court of appeals. Id. In
particular, Count II challenged only the amendments to Section 5, and it was unclear whether a
finding that the amendments were unconstitutional would revive the referendum. Id. at 794-95.
The court of appeals further questioned whether, given that plaintiffs' equal protection challenge
was only facial, plaintiffs had "met the requirement that litigants claiming injury from a racial
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classification establish that they 'personally [have been] denied equal treatment by the
challenged discriminatory conduct.'" Id. at 795 (quoting United States v. Hays, 515 U.S. 737,
743-44 (1995)). The court stated that
[w]ithout meaningful briefing on these issues, we are hesitant to decide plaintiffs'
count-two standing. Of course, we could ask for additional briefing. But that
would take time, and as plaintiffs' repeated requests for us to expedite this
litigation so that it can be resolved before the November 2011 election indicate,
time is of the essence. Given this, and given that plaintiffs themselves
characterize count two as a fallback position, see Oral Arg. Tr. at 13:2-4, 15:1115 (characterizing count two as an “alternative claim[]” that plaintiffs brought in
case they lose on count one), we are reluctant to consume precious time resolving
plaintiffs' standing to bring count two -- time the district court could instead
devote to considering the merits of plaintiffs' principal argument, asserted in
count one, that Congress's 2006 reauthorization of section 5 exceeded its
Fourteenth and Fifteenth Amendment enforcement powers.
650 F.3d at 796. Accordingly, the D.C. Circuit remanded to this Court to consider the merits of
Count I and whether plaintiffs had standing to pursue Count II. Id.
DISCUSSION
I. OVERVIEW
Before addressing the merits of plaintiffs' claims, the Court must address one unusual and
important issue that has arisen in this case. When this Court originally granted defendant's
Motion to Dismiss, the Court read plaintiffs' complaint as arguing that Congress had exceeded its
enforcement powers in reauthorizing Section 5 (Count I), and that the 2006 amendments to
Section 5 violated equal protection principles (Count II). That is, the Court saw Count I as
identical to the facial challenge raised in Shelby County and Northwest Austin, whereas Count II
raised a facial challenge to the amendments under a novel equal protection theory. The D.C.
Circuit's decision indicates that the court of appeals understood plaintiffs' claims the same way.
The D.C. Circuit summarized plaintiffs' claims as follows: "Count one of plaintiffs' complaint
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contends that section 5, as reauthorized in 2006, exceeds Congress’s Fourteenth and Fifteenth
Amendment enforcement powers. Count two contends that amendments made to section 5 in
2006 erect a facially unconstitutional racial-preference scheme." LaRoque II, 650 F.3d at 780.3
The D.C. Circuit's discussion of redressability further suggests that it read Count I as a challenge
to all of Section 5 and Count II as a challenge to the amendments. In evaluating whether
plaintiffs had standing to bring Count II, the D.C. Circuit observed that it was unclear "what
would happen to the Kinston referendum and the Attorney General's decision to refuse
preclearance" if plaintiffs succeeded in having the amendments -- but not the general
preclearance regime -- declared unconstitutional. Id. at 794. By contrast, the D.C. Circuit
apparently assumed that all of Section 5 would be struck down if plaintiffs succeeded on their
Count I challenge. Compare id. at 791 with id. at 794-95.
After the remand, however, plaintiffs emphasized that their Count I claim actually had
two subparts. See Mot. Hr'g Tr. [Docket Entry 66] 5:7-20, Oct. 26, 2011. The first part -which, for the moment, the Court will refer to as Count I-A -- claims that the reauthorization of
Section 5's preclearance regime exceeded Congress's enforcement authority under the Fourteenth
and Fifteenth Amendments. Compl. ¶¶ 33-34. Count I-A is therefore similar to the claim raised
in Northwest Austin and Shelby County. But a second part, or Count I-B, claims that the
enactment of the 2006 amendments exceeded Congress's enforcement authority even if the
general preclearance regime is constitutional. Compl. ¶ 34. This claim was not raised in either
3
See also id. at 783 ("Count one alleges that in reauthorizing Section 5, Congress
exceeded its power to enforce the Fourteenth and Fifteenth amendments because the statute 'is
not a rational, congruent, or proportional means to enforce [those Amendments']
nondiscrimination requirements.' Count two contends that as a result of the amendments
Congress made to section 5 in 2006, the section 'violates the nondiscrimination requirements of
the Fifth, Fourteenth, and Fifteenth Amendments.'" (quoting Compl. ¶¶ 34, 36)).
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Northwest Austin or Shelby County, and was not identified by either this Court or the D.C.
Circuit in the prior decisions in this case. Finally, Count II claims that the 2006 amendments to
Section 5 violate the equal protection component of the Due Process Clause of the Fifth
Amendment, the federal government's equivalent of the Equal Protection Clause. Compl. ¶¶ 3637.
The Court has reviewed plaintiffs' complaint, summary judgment motion, and opposition
to the government's summary judgment motion. [Docket Entries 1, 23, 59]. The Court concludes
that plaintiffs have in fact raised their two-part claim in Count I throughout this litigation
(although they have not always been particularly clear about the nature of the claim), despite the
fact that this Court and the D.C. Circuit did not focus on Count I-B. The existence of Count I-B,
however, leaves this Court in an odd position in two ways.
First, this Court, along with the three-judge court that decided Northwest Austin, has
already spent hundreds of pages opining that the reauthorization of the amended Section 5 was
within Congress's enforcement powers. Although neither the Northwest Austin opinion nor the
Shelby County opinion focused on the amendments to Section 5, both of those opinions
implicitly found that the amendments -- an integral part of Section 5 as enacted in 2006 -represented a congruent and proportional, or rational, response to the problem of discrimination
in voting. This Court will not revisit its conclusion in Shelby County that long-standing, statesponsored, intentional discrimination in voting justified the reauthorization of Section 5's general
preclearance procedure. Count I-A is therefore denied for the same reasons given in Shelby
County. But the Court will not rely on its past implicit finding that the 2006 amendments
represent a congruent and proportional response to the problem of voting discrimination. This
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Court therefore must decide whether specific evidence in the record before Congress justified the
enactment of the 2006 amendments.
The second odd effect of this revised understanding of plaintiffs' claims is that the Court
must reconsider the issue of Count I standing. Count I-B raises distinct standing issues from
Count I-A; indeed, for standing purposes, Count I-B is more like Count II than Count I-A.
Although the D.C. Circuit's opinion directed this Court to address the merits of Count I, the D.C.
Circuit apparently did not envision a Count I decision addressing the constitutionality of only the
amendments. And finding only the amendments unconstitutional under Count I would raise
quite different standing issues from finding all of Section 5 unconstitutional, as the D.C. Circuit
pointed out in its discussion of Count II. See LaRoque II, 650 F.3d at 794-95. Hence, although
the D.C. Circuit's mandate directs this Court to consider the merits of Count I, the opinion as a
whole leads this Court to believe that it must first address whether plaintiffs have standing on the
aspect of their Count I claim that challenges only the amendments.
This opinion will therefore proceed as follows. The Court will begin by discussing
whether plaintiffs have standing to bring Count I-B, their claim that the enactment of the
amendments to Section 5 in 2006 exceeded Congress's enforcement powers. The Court will also
consider whether Count I-B is unripe or moot. The Court will then address the merits of Count
I-B, determining whether the amendments are proper enforcement legislation under the threepart test laid out in City of Boerne v. Flores, 521 U.S. 507, 520 (1997). Finally, the Court will
turn to Count II, plaintiffs' claim that the amendments violate the equal protection principles of
the Fifth Amendment. The Court will first consider whether plaintiffs have standing to bring the
claim, then whether the claim succeeds on the merits.
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II. COUNT I
A. Standing
Article III of the U.S. Constitution "limits the 'judicial power' of the United States to the
resolution of 'cases' and 'controversies,'" Valley Forge Christian Coll. v. Am. United for
Separation of Church & State, Inc., 454 U.S. 464, 471 (1982), and the doctrine of standing
serves to identify those "'Cases' and 'Controversies' that are of the justiciable sort referred to in
Article III," Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). "As an aspect of
justiciability, the standing question is whether the plaintiff has 'alleged such a personal stake in
the outcome of the controversy' as to warrant invocation of federal-court jurisdiction and to
justify exercise of the court's remedial powers on his behalf." Warth v. Seldin, 422 U.S. 490,
498-99 (1975) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)); see also Sierra Club v.
Morton, 405 U.S. 727, 731-32 (1972).
To establish the "irreducible constitutional minimum of standing," a plaintiff must allege
(1) an "injury in fact," defined as "an invasion of a legally protected interest which is (a)
concrete and particularized," and (b) "actual or imminent, not conjectural or hypothetical"; (2) "a
causal connection between the injury and the conduct complained of"; and (3) a likelihood "that
the injury will be redressed by a favorable decision." Lujan, 504 U.S. at 560-61 (internal
quotation marks and citations omitted). In order for an injury to be "concrete and
particularized," it must "affect the plaintiff in a personal and individual way," so a plaintiff must
do more than raise "a generally available grievance about government -- claiming only harm to
his and every citizen's interest in proper application of the Constitution and laws." Id. at 561 n.1,
573.
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The injury, causation, and redressability requirements will be discussed in turn.
Following the lead of the court of appeals, this Court will primarily address whether candidate
John Nix has standing to bring this claim. LaRoque II, 650 F.3d at 792.
1. Injury
The D.C. Circuit found that Nix was injured by the operation of Section 5's general
preclearance procedure -- and the resultant suspension of the nonpartisan-election referendum -in two ways. First, in a system of nonpartisan elections, Nix "could get his name on the generalelection ballot more cheaply and easily." LaRoque II, 650 F.3d at 783. Under Kinston's current
regime, he must either win a partisan primary or collect signatures from 4% of qualified voters to
be placed on the ballot; under a nonpartisan regime, he would only need to file a candidacy
notice and pay a filing fee. Id. at 783-84. Second, Nix's chances of winning the election would
"substantially improve" if the referendum were precleared and nonpartisan elections went into
effect, because "Democratic candidates would lose the benefit of party-line straight-ticket voting
and other strategic advantages stemming from their overwhelming registered-voter advantage."
Id. at 784 (internal quotation marks and citation omitted). As the D.C. Circuit explained, Nix
has a legally protected interest in such competitive advantages because the nonpartisan election
regime would have been enacted in Kinston but for Section 5, "which he claims is
unconstitutional and thus void." Id. at 786.
The Court finds that Nix's injury is identical whether the challenge is to the amendments
or to the preclearance procedure in general. In either case, Nix alleges that the suspension of the
referendum denied him competitive advantages to which he had a legally protected right. The
questions of causation and redressability are more complex in a challenge to only the
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amendments, but the question of injury is not.
2. Causation
The causation question is more difficult. In plaintiffs' general challenge to Section 5, it
was clear that the operation of the preclearance regime had caused the suspension of the
referendum, and hence had caused Nix's injury. In the challenge to the amendments, however,
defendant makes several arguments as to why the amendments did not cause the suspension of
the referendum, and hence did not cause Nix's competitive injuries.
Defendant argues first that the Department of Justice did not rely at all on subsection (c)
-- the subsection that provides that "[t]he term 'purpose' in subsections (a) and (b) of this section
shall include any discriminatory purpose" -- in refusing to preclear the referendum. Def.'s Opp.
at 24. The Attorney General's objection letter, which focuses entirely on retrogressive effect and
never mentions discriminatory purpose, supports defendant's arguments. See Def.'s Opp.,
Statement of Facts, Ex. 2 (objection letter). There is no indication in the record that the
Department of Justice has ever claimed that a racially discriminatory purpose motivated the
referendum; indeed, the objection letter concedes that "the motivating factor for this change may
be partisan." Id. Nor have plaintiffs offered any reason to believe that the Attorney General
relied on subsection (c) in denying preclearance to the referendum. Accordingly, the Court
agrees with the government that subsection (c) did not cause plaintiffs' injuries, and plaintiffs
therefore do not have standing to challenge that provision.
Subsections (b) and (d), however, govern the "effects" prong of Section 5, and the
Attorney General denied preclearance because of the referendum's retrogressive effects. See
Def.'s Opp., Statement of Facts, Ex. 2 (objection letter). The government nonetheless contends
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that subsections (b) and (d) did not cause plaintiffs' injuries because their application is limited to
the districting context. Def.'s Opp. at 24-25. Based on the text of the statute, the Court
disagrees. Subsection (b) provides that: "Any voting qualification or prerequisite to voting, or
standard, 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 denies or abridges the right to vote within the
meaning of subsection (a) of this section." 42 U.S.C. § 1973c(b). Subsection (d) explains that
"[t]he purpose of subsection (b) of this section is to protect the ability of such citizens to elect
their preferred candidates of choice." 42 U.S.C. § 1973c(d). Hence, by their terms, both
subsections apply to "[a]ny voting qualification or prerequisite to voting, or standard, practice, or
procedure with respect to voting," and nothing in the text limits their application to districting.
The fact that subsections (b) and (d) were meant to overrule Ashcroft, a case about a
districting plan, does not mean that their application is limited to districting. Indeed, although
the specific considerations outlined in Ashcroft apply most naturally in the districting context, its
broader holding -- that a totality of the circumstances test rather than a singular focus on
minorities' ability to elect governs preclearance of voting changes -- could be and was applied to
other types of voting procedure changes, including one quite similar to the referendum at issue
here. In 2004, the Charleston County Legislative Delegation to the South Carolina General
Assembly attempted to change the nonpartisan elections for the Board of Trustees of the
Charleston County School District to partisan elections. See Letter from R. Alexander Acosta,
Assistant Attorney General, to C. Havird Jones, Jr., Senior Assistant Attorney General (Feb. 26,
2004). The Attorney General denied preclearance, finding that the change would diminish
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minorities' ability to elect their candidates of choice. Id. at 2. In doing so, he specifically noted
that he was applying a "totality of the circumstances" test under Ashcroft, and he considered,
among other things, whether minority-preferred elected officials supported the change. Id. at 12. Hence, Ashcroft’s broad holding did apply to changes like those at issue here, and the
amendments partially overruling it do as well. Indeed, a comparison of the objection letter in
this case and the objection letter in the Charleston County School District case strongly suggests
that the Attorney General applied a different standard here than he did there. Compare id. with
Def.'s Opp., Statement of Facts, Ex. 2 (objection letter).
This does not end the causation inquiry, however, because the question remains whether
the Attorney General would have come to the same ultimate conclusion under the
Ashcroft standard. If so, the amendments did not cause plaintiffs' injury. Neither party has made
any serious effort to answer or analyze that question. Under the Supreme Court's decision in
Federal Election Commission v. Akins, 524 U.S. 11 (1998), however, the Court believes that
plaintiffs succeed on the causation prong. In Akins, plaintiffs challenged the Federal Election
Commission's ("FEC") determination that the American Israel Public Affairs Committee
("AIPAC") did not have to follow certain registration and disclosure rules under the Federal
Election Campaign Act ("FECA") because AIPAC's "major purpose" was not nominating or
electing political candidates. Id. at 14-18. Plaintiffs sued the FEC, arguing that the "major
purpose" test misinterpreted FECA. The Supreme Court agreed that plaintiffs' inability to obtain
information that would otherwise have been disclosed was a concrete, particularized injury. Id.
at 20-21. The FEC argued, however, that plaintiffs did not have standing because FEC's alleged
misinterpretation of FECA might not have caused their injury, given that the FEC could have --
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and, under the evidence in the record, likely would have -- exercised its discretion to exempt
AIPAC from the FECA's requirements. See id. at 25. The Supreme Court nonetheless held that
plaintiffs had standing. It explained:
[W]e cannot know that the FEC would have exercised its prosecutorial discretion
in this way. Agencies often have discretion about whether or not to take a
particular action. Yet those adversely affected by a discretionary agency decision
generally have standing to complain that the agency based its decision upon an
improper legal ground. If a reviewing court agrees that the agency misinterpreted
the law, it will set aside the agency's action and remand the case -- even though
the agency (like a new jury after a mistrial) might later, in the exercise of its
lawful discretion, reach the same result for a different reason. Thus respondents'
"injury in fact" is "fairly traceable" to the FEC's decision not to issue its
complaint, even though the FEC might reach the same result exercising its
discretionary powers lawfully.
Id. at 25 (internal citations omitted).
Here, too, plaintiffs claim that the Attorney General employed the wrong legal standard - namely, the allegedly unconstitutional preclearance standard in subsections (b) and (d) rather
than the test laid out in Ashcroft. The fact that the Attorney General could have reached the
same result under the correct standard, as the FEC could have "reach[ed] the same result
exercising its discretionary powers lawfully," does not negate causation under Akins. This case
is not exactly like Akins – among other things, the Attorney General's "discretion" to make
preclearance decisions is not as broad as the FEC's authority was under FECA – but the Court
sees no reason that those differences dictate a different result here. Accordingly, under Akins,
the Court holds that plaintiffs have established that subsections (b) and (d) caused their injury.
3. Redressability
Plaintiffs offer various arguments for why their injury -- the postponement of the
referendum -- will be redressed if this Court finds the 2006 amendments unconstitutional. Their
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primary argument is that subsections (b), (c), and (d) cannot be severed from subsection (a),
which contains the core preclearance provision. Consol. Reply Mem. in Supp. of Plfs.' Mot. for
Summ. J. & in Opp. to Def.'s and Intervenors' Mot. for Summ. J. & Intervenors' Renewed Mot.
to Dismiss ("Plfs.' Opp.") [Docket Entry 59] at 39-44. Hence, according to plaintiffs' theory,
finding that the amendments are unconstitutional would mean that all of Section 5 must be struck
as unconstitutional. Id. And, as the D.C. Circuit explained, striking Section 5 as
unconstitutional would revive the referendum. This is so because if "Section 5 is
unconstitutional, the Attorney General's actions pursuant to that unconstitutional statute would
be void." LaRoque II, 650 F.3d at 791.
Contrary to plaintiffs' argument, the Court agrees with the government that the
amendments are severable from subsection (a)'s general preclearance provision. When possible,
courts sever unconstitutional portions of a statute rather than striking the whole statute. Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3161 (2010). Severance is
possible when the remaining portion of the statue is "(1) constitutionally valid, (2) capable of
functioning independently, and (3) 'consistent with Congress' basic objectives in enacting the
statute.'" Def.'s Opp. at 26 (quoting United States v. Booker, 543 U.S. 220, 258-259 (2005)).
"The presence of a severability clause, which expressly sets forth congressional intent that a
statute stand in the event one of its provisions is struck down, makes it extremely difficult for a
party to demonstrate inseverability." Consumer Energy Council v. Fed. Energy Regulatory
Comm'n, 673 F.2d 425, 441 (D.C. Cir. 1982).
All three conditions are met here. Subsection (a) is constitutionally valid and capable of
functioning without the 2006 amendments. Other than one purely stylistic change, subsection
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(a) is the version of Section 5 that was in effect before the 2006 amendments, and that version
was upheld against numerous constitutional challenges. See Katzenbach, 383 U.S. at 337; City
of Rome, 446 U.S. at 183; Lopez, 525 U.S. at 282-83; see generally Shelby County, 2011 WL
4375001.
The presence of a severability clause demonstrates that severing the amendments would
be "consistent with Congress' basic objectives in enacting the statute." The Voting Rights Act's
severability clause provides that
[i]f any provision of [the Voting Rights Act] or the application thereof to any
person or circumstances is held invalid, the remainder of [the Voting Rights Act]
and the application of the provision to other persons not similarly situated or to
other circumstances shall not be affected thereby.
42 U.S.C. § 1973p. Accordingly, it was Congress's considered judgment that Section 5 without
the Bossier II and Ashcroft "fixes" was better than no Section 5 at all. Plaintiffs argue that the
severability clause has been part of the Voting Rights Act since 1965, and thus cannot speak to
the 2006 Congress's intent. But this Court must presume that Congress was aware of the clause
when it reauthorized and amended Section 5, and that it affirmatively intended the severability
clause to apply to the amendments. See Koog v. United States, 79 F.3d 452, 463 n.12 (5th Cir.
1996); see also Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 686 n.8 (1987) (noting that
severability clause applies to later provisions that amend a law). Moreover, nothing in the
legislative history suggests a reason to question this presumption. Certainly, several members of
Congress made clear that they thought the Bossier II and Ashcroft fixes were important, but
there was no serious discussion of whether failing to reauthorize Section 5 at all was preferable
to reauthorizing Section 5 as construed by those cases. See Leavitt v. Jane L., 518 U.S. 137,
143-144 (1996) (statements indicating that Congress preferred complete statute do not
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undermine case for severability because "[t]his mode of analysis, if carried out in every case,
would operate to defeat every claim of severability").
The Court therefore concludes that each of the amendments is severable from subsection
(a), the general preclearance procedure. Hence, the Court rejects plaintiffs' primary
redressability argument. The question then is whether there is any other reason that finding
subsections (b) and (d) unconstitutional would redress plaintiffs' injury. The Court finds that
there is such a reason.
First, the D.C. Circuit's opinion makes clear that the Attorney General's objection would
be nullified if the amendments were struck down as unconstitutional. The D.C. Circuit explained
that if all of Section 5 is unconstitutional, the Attorney General's actions pursuant to it would be
void. LaRoque II, 650 F.3d at 791. Similarly, if the amendments are unconstitutional, the
Attorney General's actions pursuant to them would be void. Although subsection (a) contains
the actual preclearance procedure, the Attorney General's actions were indeed made "pursuant
to" subsections (b) and (d) in addition to subsection (a), because subsections (b) and (d) now
define the key terms in subsection (a).
The question then is what would happen to the Kinston referendum if the Attorney
General's original objection were nullified, but Section 5's general preclearance procedure
remained in place. Because the D.C. Circuit considered only the situation where Section 5 was
struck down in its entirety, it did not provide guidance on this issue. Moreover, because this is a
novel situation, neither party has identified any case on point. As a matter of logic, however, it
would seem that the referendum would have to be precleared under the pre-2006 version of
Section 5 before it could go into effect. Cf. Ashcroft, 539 U.S. at 490 (remanding to district
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court to reconsider whether districting plan could be precleared in light of standard laid out by
Supreme Court). Any other course of action would lead to the anomalous result that the Kinston
referendum -- unlike every other election law -- could go into effect without ever being
precleared. Moreover, contrary to the government's view, the Court does not believe that
Kinston would be able to make a discretionary decision not to seek such reconsideration of the
referendum. See United States' Resp. to Plfs.' Br. Regarding Suggestion of Mootness at 3-4
[Docket Entry 69]. Preclearance of the Kinston referendum under the pre-2006 version of
Section 5 would not be "reconsideration" as that term is usually used in this context. Rather, it
would be a routine action to seek preclearance of an election change that had not yet been
through the (proper) process.
Assuming that the referendum would have to be precleared under the pre-2006 standard,
the final question is whether it would, in fact, be precleared under that standard. If it is clear that
the referendum would not be precleared under any standard, plaintiffs' claims are not redressable
and they have no standing to challenge the 2006 amendments. As with the causation prong,
neither party has analyzed this issue in any detail. But, again as with the causation prong, the
Court finds this question governed by Akins. After explaining that causation was not defeated
simply because an agency that "based its decision upon an improper legal ground" could reach
the same decision on a proper legal ground, the Supreme Court disposed of the "redressability"
prong in a single sentence: "For similar reasons, the courts in this case can redress respondents'
injury in fact." 524 U.S. at 25 (internal quotation marks omitted). Here, as in Akins, the injury is
redressable because the Attorney General will have to reconsider preclearance of the referendum
under the Ashcroft standard if plaintiffs succeed, even though the Attorney General "might later,
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in the exercise of [his] lawful discretion, reach the same result for a different reason." Id.; see
also Townes v. Jarvis, 577 F.3d 543, 546-48 (4th Cir. 2009) (relying on Akins to find that habeas
petitioner could challenge Parole Board's decision that allegedly violated Due Process and Equal
Protection Clauses, even though Board might deny parole even applying proper standard).
The Court therefore finds that Nix has standing to challenge subsections (b) and (d), but
not subsection (c).4 For the same reasons given in its first opinion in this case, see LaRoque I,
755 F. Supp. 2d at 168-73, 180-82, the Court concludes that referendum proponents do not have
standing; that the voters' allegation that their associational rights are burdened is too generalized
to support standing; and that the voters are not precluded from supporting their candidates of
choice. KCNV, however, does have standing to challenge subsections (b) and (d), because it has
established that one of its "members would otherwise have standing to sue in [his] own right"
and "the interests at stake are germane to the organization's purpose." Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000).
4. Effect in this case
Finding that the plaintiffs do not have standing as to subsection (c), of course, means that
4
Plaintiffs might also have standing to challenge the amendments as part of their
challenge to the general preclearance regime (Count I-A), for which they have standing.
LaRoque II, 650 F.3d at 792. That is, plaintiffs could argue that the enactment of the general
preclearance regime exceeds Congress's enforcement power, and that the amendments are simply
an aspect of Congress's overreach in reauthorizing Section 5. This formulation of their argument
is academic as to subsections (b) and (d), but could change the outcome in subsection (c). As the
Court reads plaintiffs' papers, however, their argument is that even if the general preclearance
mechanism is constitutional, the substantive standard laid out in subsections (b) through (d) is
unconstitutional. See generally Plfs.' Opp. (devoting separate sections to Count I-A, Count I-B,
and Count II); Plfs.' Notice of Filing, Ex. 1, at 2 [Docket Entry 36] (letter to Court describing
claims). Because plaintiffs are challenging the constitutionality of the amendments separately
from the entire preclearance standard, they must establish standing for that challenge. See U.S.
Ecology, Inc. v. U.S. Dep’t of Interior, 231 F.3d 20, 24 (D.C. Cir. 2000).
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this Court does not have jurisdiction to find that amendment constitutional or unconstitutional on
the merits. See Lujan, 504 U.S. at 559-60. However, as the D.C. Circuit explained, time is of the
essence in this case, and plaintiffs have already been through one appeal and remand. LaRoque
II, 650 F.3d at 795. Solely in order to obviate any possible need for another remand, and in the
unusual circumstances of this case, this Court will explain how it would rule on the merits of
subsection (c) if plaintiffs could establish standing on that claim. Should the D.C. Circuit
disagree with this Court's conclusion on standing, it will then be able to address the merits
immediately.
B. Ripeness
The Court declines the government's invitation to find that plaintiffs' challenge is not ripe
for review. This case is not like Texas v. United States, 523 U.S. 296 (1998), upon which the
government relies. There, the state of Texas made certain changes to its educational system that
had the potential to affect voting. Id. at 298-99. The Department of Justice found that the
specific changes at issue did not affect voting and did not require preclearance, but that "under
certain foreseeable circumstances their implementation may" require preclearance. Id. at 299.
Texas sought a declaratory judgment that Section 5 did not apply. Id. The Supreme Court found
that Texas's claim was not ripe because a long sequence of events had to occur before the
preclearance issue could arise, and it might never arise. Id. at 300. Moreover, Texas had asked
the Court to hold that it was impossible for the educational changes to affect voting, and the
Court explained that "[w]e do not have sufficient confidence in our powers of imagination to
affirm such a negative." Id. at 301. Moreover, because Texas was currently implementing the
educational changes without any impediment, the Court found that Texas would suffer no
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hardship by deferring review until it was clear that review would be necessary. Id. at 301-02.
Here, in contrast, the Attorney General has already objected to the referendum and
thereby harmed Nix's interests. This is not a case about events that might never happen.
Moreover, although the parties admittedly disagree about how the statute will be applied, the
Court finds that there is sufficient information to construe the statute and make a judgment as to
its facial validly. That other parties could later bring as-applied claims does not mean this facial
challenge is not ripe.
C. Mootness
Plaintiffs' complaint alleged that Nix planned to run for Kinston city council in
November 2011. That election occurred during the course of this litigation. Nix lost, coming in
fourth out of six candidates running for three seats. Plfs.' Br. Regarding Suggestion of Mootness
at 1 [Docket Entry 67]. Plaintiffs have, however, submitted a copy of Nix's campaign website, in
which he promises to run again in the next election in November 2013. Id., Ex. C. Plaintiffs and
the government agree that the case is therefore not moot. Because election litigation frequently
outlasts election cycles, Nix's injury is of the type that is "capable of repetition, yet evading
review." LaRouche v. Fowler, 152 F.3d 974, 978-79 (D.C. Cir. 1997); see also LaRoque II, 650
F.3d at 788. Nix is likely -- indeed, nearly certain -- to suffer the same injury in his 2013 run for
Kinston city council. See LaRouche, 152 F.3d at 978-79. Accordingly, the Court finds that this
action is not moot.
D. Merits
1.
Standard of Review
The parties dispute whether the claim that Congress exceeded its enforcement power in
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enacting the amended Section 5 should be reviewed under the rationality standard set forth in
Katzenbach, 383 U.S. at 324, or under the more rigorous test laid out in City of Boerne v. Flores,
521 U.S. 507, 520 (1997). This Court considered the identical issue in Shelby County. See 2011
WL 4375001, at *21-34. For the reasons given there, the Court will review plaintiffs' claims
under Boerne's "congruence and proportionality" test.
2.
The Scope of the Constitutional Right At Issue
In determining whether the 2006 amendments are within Congress's enforcement power,
the first step under Boerne is "to identify with some precision the scope of the constitutional
right at issue." See Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001); see
also Tennessee v. Lane, 541 U.S. 509, 522 (2004). Where a statute is designed to protect a
fundamental right or to prevent discrimination based on a suspect classification, it is "easier for
Congress to show a pattern of state constitutional violations," as required at the second step of
the Boerne analysis. See Nev. Dep't of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003). In
other words, Congress is more likely to be able to identify unconstitutional state action justifying
remedial, prophylactic enforcement legislation when it seeks to protect against discrimination
based on a classification like gender, "which triggers heightened scrutiny," see Hibbs, 538 U.S.
at 736, than when it seeks to protect against discrimination based on a trait such as disability,
which "incurs only the minimum 'rational-basis' review," see Garrett, 531 U.S. at 366. This is
because "the heightened level of constitutional scrutiny" that accompanies a suspect
classification or a fundamental right means that "the historical problems" identified by Congress
with respect to that class or right are more likely to amount to constitutional violations, and a
history of constitutional violations is a necessary predicate for the enactment of remedial
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enforcement legislation under the Reconstruction Amendments. See Mark A. Posner, Time is
Still On its Side: Why Congressional Reauthorization of Section 5 of the Voting Rights Act
Represents a Congruent and Proportional Response to Our Nation's History of Discrimination in
Voting, 10 N.Y.U. J. LEGIS. & PUB. POL'Y 51, 87 (2006). Hence, "the Court gives Congress
significant leeway to craft broad remedial prohibitions when fundamental rights or protected
classes are at stake." Nw. Austin I, 573 F. Supp. 2d at 270.
The amendments to Section 5 protect two fundamental rights. First, they seek to protect
the right to vote -- a "fundamental political right, because [it is] preservative of all rights," Yick
Wo v. Hopkins, 118 U.S. 356, 370 (1886). Second, they protect against discrimination based on
race, "the classification of which we have been the most suspect," see M.L.B. v. S.L.J., 519 U.S.
102, 135 (1996) (Thomas, J., dissenting). Because Section 5 protects two of the most crucial
constitutional rights, Congress's enforcement powers are at its peak when it legislates to ensure
that voting is free from racial discrimination. See Nathaniel Persily, The Promise and Pitfalls of
the New Voting Rights Act, 117 YALE L.J. 174, 176 (2007) (hereinafter Persily, Promise and
Pitfalls) (explaining that Congress "acted at the apex of its power to enforce the guarantees of the
post-Civil War Amendments" when it enacted the Voting Rights Act). Just as in Hibbs and
Lane, then, it is "easier for Congress to show a pattern of state constitutional violations"
justifying the need for Section 5 than when Congress seeks to enforce rights subject to lesser
levels of constitutional review, since "racial classifications and restrictions on the right to vote like gender discrimination (Hibbs) and access to the courts (Lane) - are 'presumptively invalid.'"
Nw. Austin I, 573 F. Supp. 2d at 270 (quoting Hibbs, 538 U.S. at 736).
3. Evidence of Unconstitutional Discrimination in the Legislative Record and the
Congruence and Proportionality of Section 5
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Given this definition of "the constitutional right at issue," Garrett, 531 U.S. at 365, the
next question is whether Congress identified "a history and pattern" of unconstitutional, statesponsored voting discrimination that justified the 2006 amendments to Section 5. Id. at 368. If
the Court finds that Congress has identified such a pattern, it must then consider whether the
challenged law is congruent and proportional to the identified violations. Boerne, 521 U.S. at
520, 530-32. In answering these second and third Boerne inquiries, the Court will consider
subsection (c) and subsections (b) and (d) separately. Before doing so, however, one general
argument plaintiffs press throughout their briefs must be addressed.
1. The expansion of the preclearance standard
Plaintiffs vehemently argue that the amendments cannot be a congruent and proportional
response to discrimination in voting, regardless of the evidence Congress amassed during the
2006 reauthorization, because "any 2006 expansion of the 1965 preclearance standard would be
unconstitutional given the dramatic improvements in the covered jurisdictions." Plfs.' Opp. at
33. Under their argument, there is a bright-line rule that any expansion of Section 5 is now per
se unconstitutional under Boerne.
The Court rejects this simplistic argument for several reasons. First, even if the
amendments are an expansion of Section 5's preclearance standard, that does not ipso facto make
them unconstitutional. Congress has previously expanded substantive provisions of the Voting
Rights Act, even in the face of unquestionably improved voting conditions, without thereby
rendering the VRA unconstitutional. In 1982, for instance, Congress significantly expanded the
VRA by providing that acts related to voting that were discriminatory in effect, as well as those
that were discriminatory in purpose, violated Section 2 of the Act. Presumably employing
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Katzenbach's rationality review, the Supreme Court summarily affirmed that the post-1982
Section 2 was constitutional. Miss. Republican Exec. Comm. v. Brooks, 469 U.S. 1002, 1003
(1984).
Plaintiffs' bright-line argument does not make sense even as a theoretical matter.
Congress has amassed substantial evidence of discrimination in voting; it therefore has a range
of options for remedial legislation that would be congruent and proportional to the problem. In
evaluating the 2006 reauthorization, the question before this Court is whether the legislative
response Congress chose is within that range, not where it falls in the range relative to past
legislation. See Boerne, 521 U.S. at 530-32. So long as current needs justify the current
legislation, see Nw. Austin II, 129 S. Ct. at 2512, it does not matter whether Congress is
legislating more or less assertively than it has in the past. This is particularly true because
Section 5 now responds primarily to "second generation" voting problems, rather than to the
"first generation" problem of outright denials of the vote. House Hearing, 109th Cong. 1134
(Oct. 18, 2005) (Chandler Davidson and Bernard Grofman, eds., Quiet Revolution in the South:
The Impact of the Voting Rights Act 1965-1990 14 (Princeton University Press 1994)).
Congress could reasonably decide that a different preclearance standard is necessary to respond
to a different set of problems, and that decision would be acceptable so long as the remedy is
congruent and proportional to the problem. Boerne, 521 U.S. at 530-32.
Theoretical arguments aside, it is not at all clear that the 2006 amendments actually
represent an expansion to Section 5's preclearance standard. As this Court explained in the
Shelby County decision, "[i]n Bossier II . . . the Supreme Court -- for the first time -- held that
the 'purpose' prong of Section 5 only prohibits electoral changes that are enacted with a
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discriminatory and retrogressive purpose." 2011 WL 4375001, at *10. Congress added
subsection (c) to Section 5 in order to "restore[] the pre-Bossier II 'purpose' standard." Id. at
*11. Similarly, "the Supreme Court's decision in Georgia v. Ashcroft, 539 U.S. 461 (2003) . . .
had altered the preexisting standard for determining whether a voting change had a prohibited
retrogressive effect under Section 5's 'effects' prong." Id. Congress therefore added subsections
(b) and (d) "in an attempt to restore the simpler, 'ability to elect' analysis articulated in" prior
caselaw. Id. This Court's understanding of the amendments as restorative was echoed by many
witnesses during the 2005 and 2006 hearings. See, e.g., Senate Hearing, 109th Cong. 182 (May
9, 2006) (responses of Theodore M. Shaw to questions of Sens. Specter, Cornyn, Leahy,
Kennedy, and Schumer); Senate Hearing, 109th Cong. 149 (May 9, 2006) (responses of Laughlin
McDonald to questions of Sens. Specter, Kennedy, Schumer and Cornyn); see also House
Hearing, 109th Cong. 59 (Nov. 1, 2005) (statement of Rep. John Conyers). While there was a
less universal consensus that the Ashcroft "fix" was a simple return to the status quo ante than
there was for the Bossier II "fix," see infra at 63-64, there was also no consensus that the
Ashcroft "fix" represented an expansion -- rather than a simple change -- to the preclearance
standard. Id.
In response to this record evidence, plaintiffs argue that "'[a] judicial construction of a
statute is an authoritative statement of what the statute meant before as well as after the decision
of the case giving rise to that construction.'" Plfs.' Opp. at 33 (quoting Rivers v. Roadway
Express, Inc., 511 U.S. 298, 312-13 (1994)). Plaintiffs contend that the Supreme Court's
decisions in Bossier II and Ashcroft necessarily establish what section 5 always meant, and that
it is therefore impossible to read the 2006 amendments as anything other than an expansion to
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Section 5's preclearance standard.
The general rule is, of course, that "statutes operate only prospectively, while judicial
decisions operate retrospectively." United States v. Sec. Indus. Bank, 459 U.S. 70, 79 (1982).
Hence, a judicial decision establishes what a statute meant as well as what it means. But in this
context, the Court does not believe that this general rule determines the constitutionality of the
2006 amendments to Section 5. Rivers explained that Congress could legislatively overrule a
decision of the Supreme Court if Congress believed the decision to be in error. 511 U.S. at 313.
Further, the Supreme Court explained, Congress "may even, within broad constitutional bounds,
make such a change retroactive and thereby undo what it perceives to be the undesirable past
consequences of a misinterpretation of its work product." Id. That is, Congress has the power to
legislatively overrule the Supreme Court's determination of what the statute meant as well as the
Court's determination of what the statute means.
Here, Congress made quite clear that it disagreed with the Supreme Court's determination
of what Section 5 meant, although it chose not to throw state and local election systems into
chaos by making the amendments apply retroactively. In the findings accompanying the
reauthorized Section 5, Congress found that "[t]he effectiveness of the Voting Rights Act of
1965 has been significantly weakened by the United States Supreme Court in Reno v. Bossier
Parish II and Georgia v. Ashcroft, which have misconstrued Congress' original intent in enacting
the Voting Rights Act of 1965 and narrowed the protections accorded by section 5 of such act."
Pub. L. 109-246, § 2(b)(6), 120 Stat. at 578; see also H.R. Rep. No. 109-478, at 2. The
amendments in subsections (b) through (d) were enacted "to (1) restore the original purpose to
Section 5 with respect to intentionally discriminatory voting changes; and (2) clarify the types of
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conduct that Section 5 was intended to prevent." H.R. Rep. No. 109-478, at 65. The
authoritative determination of whether those amendments are constitutional is, of course,
reserved to the courts. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). But as a
matter of statutory construction, Congress made clear that the amendments represented a
restoration of the proper Section 5 standard, not an expansion.
Moreover, this Court would be hesitant to invalidate the amendments in the context of
the Boerne analysis solely on the basis of the rule cited in Rivers. Under Boerne, the Court not
only reviews the law Congress has enacted and whether Congress had rational reasons for doing
so, but also undertakes an in-depth analysis of how Congress arrived at its legislative
conclusions. Boerne, 521 U.S. at 530-32; see also Lane, 541 U.S. at 558-59 (2004) (Scalia, J.,
dissenting) ("Under [Boerne], the courts . . . must regularly check Congress's homework to make
sure that it has identified sufficient constitutional violations to make its remedy congruent and
proportional."). Such oversight of a co-equal branch is a delicate task. See id. at 558. Given
that virtually everyone who testified before Congress described Bossier II and Ashcroft as a
change from prior law -- at least as that law had been applied by courts and the Department of
Justice -- this Court is reluctant to play "gotcha" with Congress and invalidate the amendments
on the ground that they could technically represent an expansion of the statute.
2. Subsection (c)
As previously explained, the second step of the Boerne analysis is to determine whether
Congress identified "a history and pattern" of unconstitutional, state-sponsored voting
discrimination that justified the 2006 amendments to Section 5. See Garrett, 531 U.S. at 368.
The bulk of the opinion in Shelby County -- some seventy pages -- was devoted to reviewing
what direct and circumstantial evidence of purposeful discrimination Congress had amassed.
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2011 WL 4375001, at *36-64. The Court will incorporate that discussion by reference rather
than repeating it here.
The specific issue raised by plaintiffs' challenge to subsection (c) is whether, given those
findings, the amendment is a congruent and proportional response to the pattern of identified
unconstitutional behavior. To answer that question, the Court will focus on the evidence
Congress amassed regarding why the amendment was necessary, i.e., why the Bossier II standard
could not respond to the problem of state-sponsored voting discrimination. Hence, keeping in
mind the findings of purposeful discrimination discussed in Shelby County, the Court will turn
to Congressional record evidence specific to the Bossier II amendment in subsection (c).
Congress heard the testimony of numerous witnesses on the need to overrule Bossier II.
As Debo Adegbile of the NAACP Legal Defense Fund explained, "in a very complex area of
law[,] the problem with Bossier Parish II is very understandable to everybody, whether they be a
lawyer or not, a representative or not. The problem is that the Voting Rights Act was clearly
intended to stop discrimination in voting. It was most certainly intended to stop intentional
discrimination in voting, and it was a long history of intentional discrimination that gave rise to
the Voting Rights Act." House Hearing, 109th Cong. 38 (May 4, 2006) (statement of Debo P.
Adegbile). Yet, under Bossier II, voting changes that purposefully discriminated on the basis of
race had to be precleared. See Bossier II, 528 U.S. at 341 (holding that Section 5 "does not
prohibit preclearance of a redistricting plan with a discriminatory but nonretrogressive
purpose"). Drew Days, a law professor and voting rights practitioner, testified that the Bossier II
standard "permit[ted] absurd results" and was "basically at war with the spirit of Section 5 in that
it places a burden on those that the Act was designed to protect." Senate Hearing, 109th Cong.
57 (May 17, 2006) (responses of Drew S. Days III to questions of Sens. Cornyn, Coburn,
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Kennedy, Leahy, and Schumer).
Several witnesses explained that forcing minority voters to go to the time and expense of
Section 2 litigation in cases where there appeared to be intentional discrimination was highly
impractical for two reasons. First, neither the "small and underfinanced" voting rights bar nor
the minority communities were in a position to bear the expense of frequent litigation under
Section 2. Senate Hearing, 109th Cong. 95 (May 16, 2006) (responses of Pamela S. Karlan to
questions of Sens. Leahy, Kennedy, Kohl, Cornyn, and Coburn). Second, in the time it took to
litigate a section 2 case, candidates who benefitted from the intentionally discriminatory voting
procedures would already be incumbents and would have all the crucial advantages of
incumbency in later elections. See, e.g., House Hearing, 109th Cong. 97 (Mar. 8, 2006)
(statement of Joe Rogers); House Hearing, 109th Cong. 60 (Nov. 9, 2005) (statement of Rep.
Tyrone L. Brooks of Georgia General Assembly). Hence, moving a large number of voting
rights issues from Section 5 to Section 2 ran counter to the goal of "shift[ing] the advantage of
time and inertia from the perpetrators of the evil to its victims." Katzenbach, 383 U.S. at 328.
Congress also heard evidence that Bossier II, left uncorrected, would indeed force
preclearance of a large number of questionable practices that could only be remedied by timeconsuming, burdensome Section 2 litigation. Richard Valelly, a co-author of Peyton McCrary,
Christopher Seaman & Richard Valelly, The End of Preclearance As We Knew It: How the
Supreme Court Transformed Section 5 of the Voting Rights Act, 11 MICH. J. RACE & L. 275
(2006) (hereinafter "End of Preclearance"), testified before the House about the study. House
Hearing, 109th Cong. 877-922 (Oct. 18, 2005) (statement of Richard M. Valelly). According to
the End of Preclearance study, 43% of all Section 5 objections in the 1990s were based solely on
discriminatory intent, while another 31% of objections were based at least in part on
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discriminatory intent. See End of Preclearance 297 tbl. 2. Hence, "the intent prong was
involved in a remarkable 74 percent of all objections in that decade." Id. at 298. Purpose-based
objections were particularly prevalent in the redistricting context, where nearly 90% of the
Justice Department's objections to post-1990 redistricting plans were based at least in part on
discriminatory intent. Id. at 298 tbl. 3; see also House Hearing, 109th Cong. 13-16 (Nov. 1,
2005) (Posner prepared statement).
According to the End of Preclearance study, these numbers changed remarkably after the
Supreme Court decided Bossier II. From the time of the Supreme Court's decision in January
2000 until the end of June 2004, the Department of Justice issued 43 total objections to voting
changes, compared to 250 objections in the equivalent period during the 1990s. End of
Preclearance 313-14 & n.198. Strikingly, only two of those objections were based solely on
intent; 13 were based on both intent and purpose. Id. Hence, from 1990-2000, 43% of
objections were based solely on purpose and 74% were based in part on purpose. In the four and
a half years after Bossier II, however, 4.7% of objections were based solely on purpose and
30.2% were based in part on purpose. As one of the study authors summarized, the effect of
Bossier II was "sort of like dropping off a cliff." House Hearing, 109th Cong. 879 (Oct. 18,
2005) (Valelly statement).
There are, of course, at least two readings of this information. One reading is that the
Department of Justice had successfully blocked many voting changes that were intended to
discriminate against minorities in the 1990s, but that Bossier II prevented it from doing so in the
2000s, thus allowing those changes to go into practice. Alternatively, some of the Supreme
Court's opinions have made clear that some members of the Court believe that the Department of
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Justice inappropriately relied on the purpose prong to force redistricting jurisdictions to draw the
maximum possible number of majority-minority districts. See Miller v, Johnson, 515 U.S. 900,
924-25 (1995); see also Shaw v. Hunt, 517 U.S. 899, 911-13 (1996) ("Shaw II"). Hence, another
reading of the End of Preclearance data is that the Department of Justice was indeed relying too
heavily on the purpose prong and Bossier II had the salutary effect of forcing it to cease doing
so.
Congress heard considerable testimony on this question. One witness explained that he
would address it because "if the Department badly handled this authority in the past, one could
ask whether it is appropriate to again give the Department that authority in the future." House
Hearing, 109th Cong. 882 (Oct. 18, 2005) (Posner statement). After analysis of objections
interposed by the Department in the 1990s, he concluded that the Department of Justice had
generally followed the standard laid out in Village of Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977), in interposing objections based on discriminatory
purpose. Id. at 883; see also House Hearing, 109 Cong. 17-18 (Nov. 1, 2005) (Posner prepared
statement). Another witness agreed that the Justice Department had properly used the "objective
and workable standard" of Arlington Heights in deciding whether to preclear voting changes
under the purpose prong. Senate Hearing, 109 Cong. 174-75, 182 (May 9, 2006) (Shaw
responses). This Court agrees with those assessments. Although reasonable people could differ
on the correctness of some of the objections interposed by the Department in the 1980s and
1990s, the Court finds that Congress amassed sufficient evidence in 2005 and 2006 to support
the conclusion that the Justice Department had largely used the purpose prong correctly before
Bossier II, and that Bossier II had forced preclearance of many intentionally discriminatory
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voting procedures that could only be remedied by time-consuming, expensive Section 2
litigation. See H.R. Rep. No. 109-478, at 66-68.
Congress also heard testimony about discriminatory voting changes that would have been
precleared had the Department of Justice followed the Bossier II standards since the inception of
Section 5. The End of Preclearance authors pointed out that under the Bossier II standard,
Section 5 would have been virtually useless when it was "'needed most,'" because in some places
"'historical discrimination had left the number of black voters at close to zero.'" House Hearing,
109th Cong. 149 (Nov. 1, 2005) (draft of End of Preclearance) (quoting Bossier II, 528 U.S. at
374 (Breyer, J., dissenting)); see also Senate Hearing, 109th Cong. 94 (May 16, 2006) (Karlan
responses) (elaborating on the point). As one witness explained, "[t]he Bossier II rule actually
rewards the most intransigent perpetrators of discrimination, who after decades of exclusion of
minority voters and candidates, may now be able to keep the political process closed on the
ground that they have not abandoned their discriminatory ways. In these circumstances, under
the reasoning of Bossier II, would-be violators are not diminishing political power or access but
merely maintaining an exclusionary status quo. This scenario may aptly be characterized as
perversely paying dividends for past discrimination." House Hearing, 109th Cong. 43 (May 4,
2006) (Adegbile prepared statement).
The record also contained evidence of specific discriminatory changes that would have
gone into effect under the Bossier II standard. For instance, several witnesses pointed out that
Bossier II would have required preclearance of the infamous proposed 1981 congressional
redistricting in Georgia. As described in Shelby County, 2011 WL 4375001, at *51, Georgia
began its congressional redistricting process after the 1980 census showed that the state's ten
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existing districts -- all of which were majority-white with the exception of the Fifth District -had become severely malapportioned. Under the leadership of Joe Mack Wilson, Chair of the
House Reapportionment Committee, Georgia created a redistricting plan that maintained its nine
majority-white districts, and split the large, contiguous black population of the Atlanta
metropolitan area between the Fourth and Fifth Districts, thereby ensuring that blacks would still
comprise a majority of the Fifth District, but would only constitute 46% of the registered voters
there. See Busbee v. Smith, 549 F. Supp. 494, 498-99 (D.D.C. 1982). Because Georgia's plan
increased the percentage of blacks in the Fifth District, however, it was not retrogressive, and
therefore "technically . . . [did] not have a discriminatory effect, as that term has been construed
under the Voting Rights Act." Id. at 516.
A three-judge court in this district nonetheless denied preclearance to the plan based on
its conclusion that the plan had been "the product of purposeful racial discrimination." See id. at
516-18. In reaching this determination, the court made an express finding that "Representative
Joe Mack Wilson is a racist." Id. at 500. The court cited Wilson's now-infamous statement that
he did not want to draw "nigger districts," id. at 501, as well as testimony from other Georgia
legislators, who conceded that they, too, had intentionally sought to "keep the Fifth District 'as
white as possible . . . but just within the limits . . . to satisfy the Voting Rights Act . . . .'" Id. at
515 (internal citation omitted). As one state legislator explained, "'the motivation of the House
leadership' in creating the Fifth District . . . was to 'increase [the percentage of the black
population] just enough to say they had increased it [and] so that it would look like they had
increased it, but they knew they had not increased it enough to elect a black." Id. (internal
citation omitted). Another state senator admitted that he had felt obliged to vote for the plan
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because he "'[didn't] want to have to go home and explain why I . . . was the leader in getting a
black elected to the United States Congress.'" Id. at 514 (internal citation omitted). These
"[o]vert racial statements," together with Georgia's history of racial discrimination in voting, and
the absence of any legitimate non-racial reasons for the redistricting plan, convinced the threejudge court that the plan had been enacted with a discriminatory purpose, and hence had "'no
legitimacy at all under our Constitution or under [Section 5].'" Id. at 517 (quoting City of
Richmond v. United States, 422 U.S. 358, 378-79 (1975)). Representative John Lewis was
ultimately elected from the effective majority-minority district preserved by the litigation. See
House Hearing, 109th Cong. 20 (Nov. 1, 2005) (statement of Brenda Wright). Under Bossier II,
however, this discriminatory plan could only have been contested through Section 2 litigation.
Similarly, without the proposed amendment, the Justice Department would have had to
preclear Bladen County, North Carolina's 1987 attempt to change its method of election for its
board of county commissioners from at-large elections to three double-member and one at-large
district. Although the Justice Department found that the change would not have a retrogressive
effect, it nonetheless denied preclearance to the change based on its inability to conclude "that
the proposed election system is free from discriminatory purpose." 2 House Hearing, Scope,
109th Cong. 1761 (Oct. 25, 2005) (appendix to statement of Bradley J. Schlozman, Copies of
Objection Letters, by State, from 1980 to October 17, 2006) (hereinafter, "Schlozman
Appendix"). According to the Justice Department, the evidence presented by the county
demonstrated that "the responsible public officials [had] desired to adopt a plan which would
maintain white political control to the maximum extent possible and thereby minimize the
opportunity for effective political participation by black citizens." Id. at 1762. Indeed, the
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Justice Department explained, "it appears that the board undertook extraordinary measures to
adopt an election plan which minimizes minority voting strength." Id.
Finally, Congress heard direct evidence that some jurisdictions were looking to capitalize
on Bossier II and other cases to the disadvantage of minority voters. The testimony of Kent
Willis, the director of the American Civil Liberties Union in Virginia, provided a particularly
striking confirmation of this point. See House Hearing, 109th Cong. 894 (Oct. 18, 2005)
(statement of Kent Willis). Willis explained that he had attended a 2002 redistricting meeting in
Fredricksburg, Virginia, where he lived. Id. The city had "long had one African-American
majority district in its system," and African-Americans had historically been elected from that
district. Id. Willis testified that the discussion at the 2002 meeting "was entirely about how do
we eliminate this district. And the instruction[] to the city attorney was, look at the recent
Supreme Court case, you know, look at the cases that are taking place in the mid-'90s and early
2000, and tell us if there is a way we can eliminate the African-American majority district." Id.
To summarize, Congress collected extensive evidence of purposefully discriminatory
voting changes that could or clearly would go into effect in the absence of the amendment in
subsection (c). It also heard testimony that leaving Bossier II intact would shift a great deal of
voting rights litigation from Section 5 to Section 2, and that such a shift would be a practical
disaster for minority voting rights. To correct these several problems, Congress amended section
5 to specify that "[t]he term 'purpose' in subsections (a) and (b) of this section shall include any
discriminatory purpose." 42 U.S.C. § 1973c(c).
In light of the record before Congress, as well as the Supreme Court's caselaw defining
and clarifying Congress's Fourteenth and Fifteenth Amendment enforcement powers, the Court
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concludes that Congress did not exceed its enforcement powers in enacting subsection (c). The
Supreme Court's decision in United States v. Georgia, 546 U.S. 151 (2006) illustrates why.
There, the plaintiff, a disabled inmate in a Georgia state jail, claimed that he was confined to a
cell so small that he could not move his wheelchair and that he had to sit in his own bodily waste
because prison officials refused to help him use the inaccessible toilets and showers. Id. at 156.
He argued that this treatment violated the Americans with Disabilities Act, 42 U.S.C.A. § 12131
et seq. ("ADA"), and that Title II of the ADA abrogated Georgia's sovereign immunity. Id. The
Eleventh Circuit concluded that the ADA's attempted abrogation of Georgia's sovereign
immunity was invalid. Id. The Supreme Court reversed. Id. at 160. It first noted that if the
plaintiff's allegations were true, his treatment likely constituted an independent Fourteenth
Amendment violation (i.e., an Eighth Amendment violation incorporated against the states
through the Fourteenth Amendment) as well as a violation of the ADA. Id. at 157. The Court
then explained that, "[w]hile the Members of this Court have disagreed regarding the scope of
Congress's 'prophylactic' enforcement powers under § 5 of the Fourteenth Amendment, no one
doubts that § 5 grants Congress the power to 'enforce . . . the provisions' of the Amendment by
creating private remedies against the States for actual violations of those provisions." Id. at 158
(internal citations omitted). Because the plaintiff claimed actual violations of the Fourteenth
Amendment, Congress had broad remedial powers, including the usually disfavored power of
abrogating a state's sovereign immunity. Id. at 158-59.
Here, subsection (c) forbids purposeful discrimination. By definition, purposeful
discrimination by state actors on the basis of race violates the Constitution. U.S. CONST., amend.
XIV; Washington v. Davis, 426 U.S. 229, 239-41 (1976). Hence, the amendment to Section 5 in
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subsection (c) forbids only conduct that constitutes an actual Fourteenth Amendment violation,
so Congress's enforcement powers are at their broadest. See Georgia, 546 U.S. at 158-59.
Subsection (c) differs in just one way from a straightforward ban on unconstitutional conduct:
instead of putting the onus on the alleged victim to prove discrimination, the burden is shifted to
the state actor to prove the absence of discrimination. The Supreme Court has previously
approved this burden-shifting procedure, see Katzenbach, 383 U.S. at 334-35, and such burdenshifting seems far less intrusive than the abrogation of sovereign immunity approved in Georgia.
See 546 U.S. at 158-59. Given the substantial evidence that Congress amassed for the necessity
of an amendment to Section 5, and the narrowness of the amendment Congress chose, the Court
finds that subsection (c) lies comfortably within Congress's enforcement powers.
In reality, the core of plaintiffs' challenge to subsection (c) is not about Congress's
enforcement powers, but about the fear that the Department of Justice will use the purpose prong
to extract its preferred results in the redistricting context. Plfs.' Mem. in Supp. of Mot. for
Summ. J. ("Plfs.' MSJ") at 28-30, 41-42; Plfs.' Opp. at 29-32. The witnesses who testified
against the Bossier II "fix" were motivated by the same concern. See Senate Hearing, 109th
Cong. 11 (July 13, 2006) (statement of Michael Carvin); id. at 14 (statement of Abigail
Thernstrom); House Hearing, 109th Cong. 29-31 (Nov. 1, 2005) (statement of Roger Clegg).
The government argues in response that the Supreme Court's opinions in Miller and Shaw II
made clear that it may not so employ the purpose prong, and points to its regulations that
underscore the point. See Miller, 515 U.S. at 924-25; Shaw II, 517 U.S. at 911-13; see also 28
C.F.R. § 51.54 (providing that Justice Department must use factors set forth in Village of
Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), in
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determining whether a voting change was motivated by discriminatory purpose); 28 C.F.R. §
51.59(b) (providing that "[a] jurisdiction's failure to adopt the maximum possible number of
majority-minority districts may not be the sole basis for determining that a jurisdiction was
motivated by a discriminatory purpose"). Moreover, the government argues, neither plaintiffs
nor the Congressional witnesses identified any instance of the Department of Justice's improper
reliance on the purpose prong since Miller. Def.'s Opp. at 36-37. While it is true that the
Supreme Court implicitly criticized the Justice Department for such behavior in 2000 in Bossier
II, see 528 U.S. at 324, the objection that was the basis for that case was originally made in 1993,
two years before Miller.
Whatever the merits of this concern, it is not the proper subject of a facial challenge to
subsection (c), and plaintiffs have made clear that they have disavowed their as-applied
challenge. "In determining whether a law is facially invalid, we must be careful not to go
beyond the statute's facial requirements and speculate about hypothetical or imaginary cases."
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449-50 (2008) (internal
quotation marks omitted); see also United States v. Raines, 362 U.S. 17, 22 (1960) ("The delicate
power of pronouncing an Act of Congress unconstitutional is not to be exercised with reference
to hypothetical cases thus imagined."). Moreover, "facial challenges threaten to short circuit the
democratic process by preventing laws embodying the will of the people from being
implemented in a manner consistent with the Constitution. We must keep in mind that a ruling of
unconstitutionality frustrates the intent of the elected representatives of the people." Wash. State
Grange, 552 U.S. at 451 (internal citations and quotation marks omitted). That is particularly so
where, as here, Congress has clearly undertaken its legislative task with great care. See Shelby
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County, 2011 WL 4375001, at *80.
If the Department of Justice employs subsection (c) to block unobjectionable voting
procedures, the affected jurisdiction will be entitled to bring an as-applied challenge to the
statute in a de novo proceeding in this district. LaRoque II, 650 F.3d at 783 (citing City of Rome
v. United States, 450 F. Supp. 378, 380-82 & n.3 (D.D.C. 1978)). But given the lack of any
current indication of such practices, this Court will not invalidate subsection (c) based on
speculation.
3. Subsections (b) and (d)
The challenge to subsections (b) and (d) revolves around the standard to be applied in
deciding whether to preclear districting and other changes that have the potential to dilute
minority votes. It is therefore appropriate to repeat some of Shelby County's findings about
intentionally discriminatory vote dilution.
The Congressional record contained significant evidence of intentionally dilutive actions
in the districting context. For instance, Congress heard testimony about an episode in which
Mississippi state legislators opposed a redistricting plan that would have given AfricanAmericans an increased opportunity to elect representatives of their choice, referring to the plan
"on the House floor as the 'black plan' and privately as 'the n-plan.'" S. Rep. No. 109-295, at 14.
Congress also heard that during one round of redistricting, Georgia's Chair of its House
Reapportionment Committee told his colleagues in the Georgia legislature that he was uncertain
as to the outcome of the state's redistricting process, "because the Justice Department is trying to
make us draw nigger districts and I don't want to draw nigger districts." See Busbee, 549 F.
Supp. at 501; see also H.R. Rep. No. 109-478, at 67; House Hearing, 109th Cong. 54 (Nov. 9,
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2005) (prepared statement of Laughlin McDonald).
Congress was also provided information that, in 2002, the Justice Department objected to
a redistricting plan proposed by the city of Albany, Georgia, based on the determination that
Albany had not "carried its burden of showing that its proposed plan was not designed with the
intent to limit and retrogress the increased black voting strength." See 1 House Hearing, Scope,
109th Cong. 846 (Oct. 25, 2005) (Schlozman Appendix). The Justice Department examined
Albany's history of redistricting with respect to Ward 4, which, it found, revealed an "intent to
maintain Ward 4 as a district that remains at the . . . level of 70 percent white, thus eliminating
any ability of black voters to elect a candidate of choice in this district." Id. After the black
population in Ward 4 doubled from 20% to 40% during the 1980s, Albany adopted a
redistricting plan that reduced the Ward's population to 30% black. Then, after the black
population in Ward 4 increased from 30% to almost 51% during the 1990s, the city sought
preclearance for another redistricting plan that would have reduced the population in Ward 4 to
30% black. Id. at 846-47. The Justice Department objected to the proposed plan, noting that
"implicit" in the plan was "an intent to limit black political strength in the city to no more than
four districts." Id. at 847.
Another intent-based objection was lodged against the 2001 redistricting plan proposed
by Milden, Louisiana, in which the city "explicitly decided to eliminate one of the three existing
majority minority districts," even though "it was not compelled to redraw the district," and had
been "presented with an alternative that met all of its legitimate criteria while maintaining the
minority community's electoral ability." Id. at 1150-52. The Justice Department interposed yet
another intent-based objection to a redistricting plan submitted by Sumter County, South
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Carolina, that same year, after the county council "explicitly decided to . . . eliminate one of the
four existing majority minority districts" despite the fact that the district's elimination had been
"easily avoidable." See 2 House Hearing, Scope, 109th Cong. 2082-84 (Oct. 25, 2005)
(Schlozman Appendix). In explaining the basis of its objection, the Justice Department noted
that the county had not been forced to redraw the district and that it had rejected an alternative,
non-retrogressive plan. Id. at 2083-84. Under the circumstances, the Justice Department was
unable to conclude "that the action in question was not motivated by a discriminatory intent to
retrogress." Id. at 2084.
The record revealed many more similar instances. See, e.g., 1 House Hearing, Scope,
109th Cong. 433 (Oct. 25, 2005) (Schlozman Appendix) (objecting to 1998 redistricting plan by
Tallapoosa County, Alabama, because "the history of the instant redistricting process and its
results raise serious concerns that the county . . . purposely impaired the ability of black voters to
elect a candidate of choice"); id. at 412 (objecting to Greensboro, Alabama's 1993 redistricting
plan on the ground that "the opportunity for black voters to elect a representative of their choice .
. . appears to have been constrained deliberately"); id. at 1410 (objecting to Mississippi's 1991
statewide legislative redistricting plan where it appeared "that the proposed plan is calculated not
to provide black voters in the Delta with the equal opportunity for representation required by the
Voting Rights Act"); id. at 830 (objecting to 2000 redistricting plan for Webster County,
Georgia's board of education, where the plan was created shortly after the county had elected its
first majority-black board, and the county's proffered reasons for the plan appeared to be "merely
pretexts for intentionally decreasing the opportunity of minority voters to participate in the
electoral process"); id. at 1611 (objecting to 1997 redistricting plan by Grenada, Mississippi,
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based on "substantial direct and circumstantial evidence of discriminatory purpose"); id. at 1516
(refusing to withdraw objection to Greenville, Mississippi's 1991 redistricting plan, which
"appeared to have been motivated by a desire on the part of white city councilmembers to retain
white control of the city's governing body," and explaining that since the plan's proposal, "white
city officials [have] continue[d] to engage in race-based decisionmaking and to design schemes
the purpose of which is to avoid black control of city government").
In addition to these examples, the legislative record included judicial decisions denying
preclearance that relied on evidence of intentional discrimination. The 1990 redistricting in
Georgia -- in which Joe Mack Wilson, Chair of the state's House Reapportionment Committee,
stated he did not want to draw "nigger districts" -- has already been discussed. In a more recent
declaratory judgment action, the Louisiana House of Representatives sought preclearance for its
2001 statewide redistricting plan, which eliminated a majority-black district in Orleans Parish,
and failed to create a comparable district anywhere else in the state. See Nw. Austin I, 573 F.
Supp. 2d at 256; Senate Hearing, 109th Cong. 28 (May 16, 2006) (responses of Theodore S.
Arrington to questions of Sens. Cornyn, Coburn, Leahy, Kennedy, and Kohl); Senate Hearing,
109th Cong. 152 (May 9, 2006) (Shaw responses); Senate Hearing, 109th Cong. 42-44 (June 21,
2006) (responses of Debo Adegbile to questions of Sens. Kennedy, Leahy, Cornyn, and Coburn).
In the course of defending their plan, Louisiana officials admitted that they had intentionally
"'obliterated'" the majority-black district in order to achieve what they characterized as
"proportional" representation for white voters in Orleans Parish. See Def.'s Br. in Supp. of Mot.
for Summ. J., La. House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); see also
Senate Hearing, 109th Cong. 43 (June 21, 2006) (Adegbile responses). But in selectively
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applying the theory of "proportional representation" to advantage only white voters in a
particular area of the state, Louisiana officials ignored the fact that it was the black population in
Orleans Parish, not the white population, that had increased during the preceding decade. See
Senate Hearing, 109th Cong. 28 (May 16, 2006) (Arrington responses). Moreover, the state
made no attempt to remedy blacks' statewide under-representation in proportion to their
percentage of the population, despite its avowed desire to achieve proportional representation for
white voters in a particular area of the state. See Def.'s Br. in Supp. of Mot. for Summ. J., La.
House of Reps. v. Ashcroft, Civ. A. No. 02-62 (D.D.C. Jan. 17, 2003); Senate Hearing, 109th
Cong. 43 (June 21, 2006) (Adegbile responses); Nw. Austin I, 573 F. Supp. 2d at 256.
The Congressional record also contained many examples of changes to voting procedures
outside the districting context that the Department of Justice found to be motivated by
unconstitutional discriminatory purpose. For instance, an intent-based objection was interposed
in response to Wilson County, North Carolina's 1986 change to its system for electing county
commissioners, in light of the Justice Department's determination that the county's method of
election had been purposefully "designed and intended to limit the number of commissioners
black voters would be able to elect." 2 House Hearing, Scope, 109th Cong. 1731 (Schlozman
Appendix). In the context of annexations, the Justice Department issued an objection in 1990 to
the decision by Monroe, Louisiana, to annex certain wards for the Monroe City Court,
explaining that the annexations would have reduced the black percentage of the City Court's
jurisdiction from 48.4% to 39.2%. 1 House Hearing, Scope, 109th Cong. 927 (Oct. 25, 2005)
(Schlozman Appendix). The Justice Department also expressed concern regarding the timing of
the annexations, noting that one of the annexed wards "had been eligible to be added to the City
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Court jurisdiction since at least 1970," but that there had been "little or no interest in
implementing this change until immediately prior to the 1984 City Court primary election, which
we understand was marked by the presence of the first black candidate for the City Court." See
id. 927-28; see also H.R. Rep. No. 109-478, at 23. Similarly, the Justice Department in 1997
objected to the annexations proposed by the city of Webster, Texas, where "the city's annexation
choices appear[ed] to have been tainted, if only in part, by an invidious racial purpose." 2 House
Hearing, Scope, 109th Cong. 2492 (Oct. 25, 2005) (Schlozman Appendix).
The Congressional record was thus replete with evidence of intentionally discriminatory
vote dilution, particularly in the districting context. Keeping that evidence in mind, the Court
will now turn to consideration of the evidence Congress gathered about the possible
consequences of the Supreme Court's opinion in Georgia v. Ashcroft. But to begin with, a brief
review of the caselaw interpreting the "effects" prong of Section 5 is useful.
Section 5(a) provides that no change to voting procedures can be precleared if it "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 first addressed the meaning of "the effect of denying or
abridging the right to vote on account of race or color" in Beer v. United States, 425 U.S. 130
(1976). According to Beer, the purpose of Section 5 was to "insure that no voting-procedure
changes would be made that would lead to a retrogression in the position of racial minorities
with respect to their effective exercise of the electoral franchise." Id. at 141. The Beer Court
added that "an ameliorative new legislative apportionment cannot violate § 5 unless the new
apportionment itself so discriminates on the basis of race or color as to violate the Constitution."
Id. Under Beer, then, the effects prong of Section 5 was solely concerned with retrogression,
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i.e., changes in voting practices or procedures that made the situation of minority voters worse.
The Beer standard was not so pellucid that it eliminated any possible questions about the
interpretation and application of the effects prong, but nonetheless, the Supreme Court did not
address the meaning of that prong again until Georgia v. Ashcroft, 539 U.S. 461 (2003). There,
the Court considered in depth what it meant to make the situation of minority voters worse.
Ashcroft arose as a result of the 2000 redistricting in Georgia. Id. at 469. The Court explained
that "a substantial majority of black voters in Georgia vote Democratic, [and] all elected black
representatives in the General Assembly are Democrats." Id. In the 2000 round of redistricting,
"[t]he goal of the Democratic leadership -- black and white -- was to maintain the number of
majority-minority districts and also increase the number of Democratic Senate seats." Id. To do
so, the Democratic leadership agreed to a plan "unpacking" certain majority-minority districts
with very high concentrations of black voters. Id. at 469-71. Thus, the concentration of black
voters was reduced in some districts, and black voters -- a "substantial majority" of whom
reliably voted Democratic -- were spread to other districts to increase Democratic candidates'
chances of success. Id.
Instead of seeking administrative preclearance from the Attorney General, Georgia
instituted an action seeking judicial preclearance. Id. at 471. A three-judge panel denied
preclearance on the grounds that the plan would "diminish African American voting strength in"
the unpacked districts, and that Georgia had "failed to present any . . . evidence" that the
retrogression in those districts "will be offset by gains in other districts." Georgia v. Ashcroft,
195 F. Supp. 2d 25, 88 (D.D.C. 2002). Georgia appealed directly to the Supreme Court.
See Ashcroft, 539 U.S. at 475.
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The Supreme Court's task was to divine whether the districting plan, based on a complex
mix of partisanship, incumbency protection, and compliance with the Voting Rights Act, "'would
lead to a retrogression in the position of racial minorities with respect to their effective exercise
of the electoral franchise.'" 539 U.S. at 462 (quoting Beer, 425 U.S. at 141). In answering that
question, the Supreme Court set out a lengthy "totality of the circumstances" test that courts
evaluating retrogression should consider. 539 U.S. at 480-84. The Court emphasized that "the
ability of a minority group to elect a candidate of its choice remains an integral feature in any § 5
analysis." Id. at 484. But, the Court said, it "cannot be dispositive." Id. at 480. Rather,
[i]n order to maximize the electoral success of a minority group, a State may
choose to create a certain number of "safe" districts, in which it is highly likely
that minority voters will be able to elect the candidate of their choice.
Alternatively, a State may choose to create a greater number of districts in which
it is likely -- although perhaps not quite as likely as under the benchmark plan -that minority voters will be able to elect candidates of their choice.
Section 5 does not dictate that a State must pick one of these methods of
redistricting over another. Either option will present the minority group with its
own array of electoral risks and benefits, and presents hard choices about what
would truly maximize minority electoral success.
Id. (internal quotation marks and citations omitted). In addition to the choice between fewer
completely "safe" districts and more less safe districts, the Court wrote that the analysis should
include whether a plan added or subtracted "influence districts" -- districts "where minority
voters may not be able to elect a candidate of choice but can play a substantial, if not decisive,
role in the electoral process." Id. at 482. Finally, the Court added two additional considerations
to its totality of the circumstances test: "the comparative position of legislative leadership,
influence, and power for representatives of the benchmark majority-minority districts" and
whether minority-preferred representatives supported the plan. Id. at 483-84 (internal quotation
marks and citations omitted).
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Congress reacted to Ashcroft in 2006 by adding subsections (b) and (d) to Section 5.
Those amendments provide that
(b) Any voting qualification or prerequisite to voting, or standard, 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, or in contravention of the guarantees set forth in section 1973b (f)(2) of this
title, to elect their preferred candidates of choice denies or abridges the right to
vote within the meaning of subsection (a) of this section.
...
(d) The purpose of subsection (b) of this section is to protect the ability of such
citizens to elect their preferred candidates of choice.
42 U.S.C. § 1973c(b), (d). Hence, instead of allowing courts and the Department of Justice to
take into account a wide variety of potential indicators of minority voting effectiveness in
conducting the preclearance analysis, Congress clarified that Section 5 is focused on minorities'
ability "to elect their preferred candidates of choice." In the House Report accompanying the
bill, Congress explained that the amendments were meant to return to the analysis articulated in
Beer. See H.R. Rep. No. 109-478, at 71.
Unlike the debate over the Bossier II fix, which nearly all witnesses agreed was
necessary and appropriate, the Ashcroft fix was the subject of extended debate. A consistent
theme, however, was that the standard laid out in Ashcroft was impossibly challenging to
administer, particularly within the 60-day period in which the Department of Justice must make
preclearance decisions. Witnesses called it "an unworkable standard," Senate Hearing, 109th
Cong. 8 (May 16, 2006) (Arrington statement), "subjective, abstract, and impressionistic," House
Hearing, 109th Cong. 49 (Nov. 9, 2005) (McDonald statement), "amorphous [and] easily
manipulable . . . an open invitation to mischief . . . [and] poorly defined and virtually impossible
to meaningfully administer." Senate Hearing, 109th Cong. 39 (May 17, 2006) (Days responses).
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Robert Kengle, the former Deputy Chief of the Voting Section of the Justice Department's Civil
Rights Division, testified that Ashcroft had "introduced factors into the retrogression analysis
that make the Section 5 process more complicated and burdensome for everybody, not just for
the Department of Justice but for the jurisdictions that have to comply with it as well." House
Hearing, 109th Cong. 889 (Oct. 18, 2005) (statement of Robert A. Kengle). Kengle also worried
that Ashcroft would make preclearance decisions "less predictable and more open to subjective
judgments, individual preconceptions and even political biases." Id. A hearing in the House
opened with the question, "Georgia v. Ashcroft: can it be made workable?" House Hearing,
109th Cong. 2 (Nov. 9, 2005) (Rep. Conyers statement).
Witnesses were particularly concerned about the introduction of "influence" districts into
the Section 5 calculus. "Influence" districts, as previously explained, are those where "minority
voters may not be able to elect a candidate of choice but can play a substantial, if not decisive,
role in the electoral process." Ashcroft, 539 U.S. at 482.5 Congressional witnesses testified that
a key problem with the Ashcroft opinion was the lack of a standard that would allow courts and
5
Influence districts contrast with majority-minority, crossover, and opportunity districts.
The meaning of those terms is subject to considerable debate. Persily, Promise and Pitfalls 23537, 241-42. As used in this opinion, majority-minority districts are those where a minority group
is able to elect its "preferred candidates of choice" without crossover voting from either white
voters or voters of a different minority group. See id. at 241-42 (discussing conceptual issues in
defining majority-minority districts). "Crossover" districts, sometimes called coalition districts,
are those where minority voters can elect their candidates of choice with certain "crossover"
votes from white or other voters who support the minority group's candidates of choice. See
Bartlett v. Strickland, 129 S. Ct. 1231, 1242-43 (2009) (discussing different types of districts).
"Crossover" districts are different than influence districts because the minority voters are
sufficiently numerous that they can choose the candidate, presumably because they form a
majority of voters in the primary elections, rather than choosing among white voters' candidates
of choice. See id. at 1242; see also Persily, Promise and Pitfalls 236, 242-43. Finally, this Court
will use "opportunity district" as an all-purpose term for those jurisdictions where minority
voters can elect their candidates of choice. Both majority-minority districts and crossover
districts are opportunity districts.
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the Justice Department to determine which districts were "influence" districts. Theodore Shaw
explained that "[w]e don't know what 'influence districts' really mean[s]." He asked:
How is influence effectively measured within DOJ’s sixty-day administrative
window? Does one look to roll call votes? Do those votes need to be on issues
that have a discernible race element or just a discernible position preferred by
minority group members? Is it enough if candidates for office campaign in
minority communities? Must influence be consistently in evidence or is
occasional influence sufficient?
House Hearing, 109th Cong. 13, 25 (Nov. 9, 2005) (statements of Theodore M. Shaw). Another
witness cited a study showing that a group's influence on a given legislator does not linearly
increase with the group's size, as one might expect, but rather has a "curvi-linear relationship" to
the group's size. House Hearing, 109th Cong. 57 (Nov. 9, 2005) (McDonald statement).
Moreover, as Representative Feeney pointed out, all of these problems were compounded by the
fact that what constituted an influence district would "change from candidate to candidate and
cycle to cycle and geographic area to geographic area." House Hearing, 109th Cong. 84 (Oct.
25, 2005) (statement of Rep. Tom Feeney).
Several witnesses also testified that they were troubled by the fact that the Ashcroft
opinion gave no guidance as to when and whether majority-minority districts or other
opportunity districts could be traded for influence districts, and how many influence districts
would make up for the loss of an opportunity district. Senate Hearing, 109th Cong. 168 (May 9,
2006) (Shaw responses); Senate Hearing, 109th Cong. 116-17 (May 16, 2006) (responses of
Richard H. Pildes to questions of Sens. Specter, Cornyn, Coburn, and Kohl); Senate Hearing,
109th Cong. 58-59 (May 17, 2006) (Days responses); House Hearing, 109th Cong. 139-40 &
n.10 (Nov. 9, 2005) (Kengle prepared statement); House Hearing, 109th Cong. 49-50 (May 4,
2006) (Adegbile prepared statement). The lack of clarity about how to define influence districts,
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along with the uncertainty about when influence districts could be traded for opportunity
districts, combined to create what several witnesses saw as the most significant problem with
Ashcroft: the opinion might allow jurisdictions to substantially dilute minority voting strength
under the guise of creating more influence districts. In the most extreme scenario, a jurisdiction
could carve up every opportunity district into a series of influence districts where minorities
might actually have no influence at all. Such a result would give official legal cover to the
blatant voting discrimination that Section 5 was designed to prevent, and would judicially
sanction a return to the days of districts designed to spread minority voters as widely as possible.
Cf. Senate Hearing, 109th Cong. 84 (May 17, 2006) (responses of Armand Derfner to questions
of Sens. Cornyn, Coburn, Leahy, Kennedy, and Schumer) ("In this century, Mississippi’s
congressional district lines had been traditionally drawn from south to north, which meant that
the [largely black] Mississippi Delta was one congressional district. . . . [A]s soon as blacks
started voting, and especially with the Voting Rights Act, . . . [Mississippi changed] the historic
pattern so that the new congressional lines went from east to west, thus fragmenting the black
population in the Delta.").
Even in less extreme scenarios, a jurisdiction could substantially dilute the voting power
of minorities through substitution of influence districts for opportunity districts. See Senate
Hearing, 109th Cong. 168-69 (May 9, 2006) (Shaw responses) (Ashcroft allows "jurisdictions to
cloak intentional discrimination under [its] intangible framework"); House Hearing, 109th Cong.
50 (Nov. 9, 2005) (McDonald statement) ("The minority influence theory, moreover, is
frequently nothing more than a guise for diluting minority voting strength."); Senate Hearing,
109th Cong. 12 (May 17, 2006) (statement of Nathaniel Persily) ("The risk of Georgia v.
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Ashcroft is that . . . under the cloak of influence districts, a jurisdiction would then break up a
cohesive minority community into much smaller districts in which they really had no influence
at all."). Professor Richard Pildes, who "agree[d] with the Court on the Georgia facts" and did
not support the "fix," noted that even supporters of the Ashcroft decision were "sometimes
worried about the possible implications of the decision down the road," and thought that the
hearings should clarify that a jurisdiction could not trade every opportunity district for influence
districts. Senate Hearing, 109th Cong. 116-17 (May 16, 2006) (Pildes responses).
Congress also heard testimony about Ashcroft's holding that states are free to choose
among the various ways of ensuring that minorities have an equal opportunity to participate
politically -- in other words, that states may choose between majority-minority districts,
influence districts, crossover districts, and other types of participation. Robert Kengle, who
agreed with parts of the Ashcroft decision and the theoretical importance of influence districts,
testified that he was "quite uncomfortable with the notion that 'the State may choose . . . to risk
having fewer minority representatives,' which strikes me as letting the fox guard the henhouse."
House Hearing, 109th Cong. 135, 139 (Nov. 9, 2005) (Kengle prepared statement) (quoting
Ashcroft, 539 U.S. at 464). The House Report reflected a specific Congressional finding that,
given the record before Congress, covered jurisdictions should not be allowed unfettered
discretion to choose among theories of representation. H.R. Rep. 109-478, at 70.
One final concern expressed by several witnesses was that consideration of influence
districts would inject undue partisanship into the Voting Rights Act. Ashcroft itself, of course,
grew out of an attempt to maximize Democratic strength while complying with the Act. As one
witness bluntly summarized:
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[T]o the extent that I can imagine what measures would be used to determine
whether substantive representation or influence has been enhanced to prevent
retrogression, these measures amount to simply helping Democratic Party
candidates. In virtually every state legislature, in the Congress, and in many local
jurisdictions, minority representatives -- especially African Americans -- are
strongly allied with the Democratic Party. Helping Democratic Party candidates
would be argued to be equivalent to increasing minority voter influence and
helping minority substantive representation. In other words, influence districts, if
seen as a replacement for opportunities for minority voters to elect representatives
of their choice, would become simply a rationale for creating Democratic Party
gerrymanders.
Senate Hearing, 109th Cong. 33 (May 16, 2006) (Arrington responses). But this was
problematic, because, as Theodore Shaw pointed out, "a sustained identity between minority and
partisan interests" cannot always be assumed given that "partisan links [may] weaken and shift,
as they historically have done." House Hearing, 109th Cong. 26 (Nov. 9, 2005) (Shaw prepared
statement).
More broadly, Congress heard testimony that the Ashcroft standard too often subsumed
the goals of minority voters in favor of the goals of individual legislators and their political
parties. For instance, the fact that minority legislators supported a given redistricting plan might
mean that it protected their own districts, not that it was the best plan for minority voters. House
Hearing, 109th Cong. 22 (Oct. 25, 2005) (prepared statement of Robert Hunter). Asking judges
or Justice Department attorneys to assess whether a given legislator had a sufficiently important
leadership position -- and was likely to retain that leadership position after an election -- was
seen as unrealistic. Id. at 25. Indeed, one of the Justice Department's rare attempts to apply the
Ashcroft standard before it was overturned was laid out in a 73-page memo that was later leaked,
and voting rights scholars were highly critical of the Justice Department's efforts. See, e.g.,
Abigail Thernstrom, Section 5 of the Voting Rights Act: By Now, a Murky Mess, 5 GEO. J.L. &
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PUB. POL'Y 41, 59-61 (2007) ("Throughout the memo, the career attorneys attempted to read
political tealeaves, predicting the race or political sympathies of candidates who would be
elected from various districts under the new plan. It was a practice invited by the Ashcroft
Court, but . . . attorneys in Washington were (inevitably) not very good at it."). Summarizing the
problem, Robert Kengle testified:
Finally, in my view the Ashcroft decision makes its greatest departure from the
Supreme Court's other voting rights jurisprudence by introducing explicit partisan
calculations into the Section 5 review process. Creating influence and coalition
districts with partisan allies may in fact be the best way to maximize minority
voting strength in particular cases, and I think minority citizens and legislators
should be allowed considerable latitude to do so.
But to embody partisan calculations and tradeoffs into the Voting Rights Act
itself has not been well thought out and provides a means and motive not only to
politicize enforcement of Section 5, but also to undermine confidence that the Act
will be enforced in a way that transcends party politics.
House Hearing, 109th Cong. 143 (Nov. 9, 2005) (Kengle prepared statement). Condensing all of
these concerns, voting rights practitioner Debo Adegbile speculated that under the Ashcroft test,
the Section 5 analysis would become so complex that "the statute will start to collapse of its own
weight." House Hearing, 109th Cong. 58 (May 4, 2006) (Adegbile prepared statement).
To summarize, Congress gathered extensive evidence that discriminatory and dilutive
techniques remained a significant problem, and that the Ashcroft standard did not remedy -- and
could easily worsen -- the problem. Congress therefore chose to overrule Ashcroft with the
amendments codified at 42 U.S.C. §§ 1973c(b) and (d). A striking feature of the Ashcroft "fix,"
however, was the widespread uncertainty about what it meant. As one law professor put it,
"Congress did not so much reverse Ashcroft as remand it to the courts with equivocal
instructions." J. Morgan Kousser, The Strange, Ironic Career of Section 5 of the Voting Rights
Act, 1965-2007, 86 TEX. L. REV. 667, 755 (2008). One of the effects of the amendments is
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undisputed: they made clear that influence districts could not be substituted for opportunity
districts. Persily, Promise and Pitfalls 235-37, 247. What the amendments did not resolve,
however, was whether crossover districts were protected from retrogression and what sort of
tradeoffs between majority-minority and crossover districts were appropriate. Some witnesses
concluded that the Ashcroft fix was a simple return to the status quo ante, i.e., the Beer test,
while others disagreed. Senate Hearing, 109th Cong. 149 (May 9, 2006) (responses of Laughlin
McDonald to questions of Sens. Specter, Kennedy, Schumer and Cornyn); Senate Hearing, 109th
Cong. 168-69 (May 9, 2006) (Shaw responses). But as Nathaniel Persily has explained, "[t]he
problem is that there is disagreement about what the standard under Beer was." Persily, Promise
and Pitfalls 234.
The text of Beer certainly does not answer questions about crossover districts and
tradeoffs, and the Supreme Court had never attempted to clarify the issue until Ashcroft. Nor
does the text of the amendments obviously answer that question. The House and Senate reports
vividly illustrate the amendments' ambiguity. The House report provides that "[v]oting changes
that leave a minority group less able to elect a preferred candidate of choice, either directly or
when coalesced with other voters, cannot be precleared under Section 5." H.R. Rep. No. 109478, at 71. Hence, according to the House report, crossover districts as well as majorityminority districts are protected under the amendments. The Senate report presents a truly bizarre
situation. The Senate unanimously voted to renew Section 5 on July 20, 2006. S. Rep. 109-295,
at 54-55. A draft Senate report had been circulated, but instead of accepting it, the Republican
members of the Senate Judiciary Committee produced their own report six days after the passage
of the bill, over the vehement protests of the Democratic members of the Committee. Id.
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According to that Report, subsections (b) and (d) were intended only "to protect naturally
occurring majority-minority districts," not crossover districts. Id. at 19. Moreover, the
Republican Senate Report specifically stated that "coalition or influence districts" could never be
substituted for naturally occurring majority-minority districts. Id. Although this Court will not
rely on a one-party, post hoc report as evidence of what the amendments actually mean, the
report does reflect disagreement among members of Congress as to their meaning.
In the context of this facial challenge, then, the Court must construe the amendments,
bearing in mind that they should not be found unconstitutional unless there is no plausible
constitutional construction. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988); David L. Franklin, Facial Challenges, Legislative
Purpose, and the Commerce Clause, 92 IOWA L. REV. 41, 58 (2006) (a facial challenge asserts
that a statute is "invalid on its face as written and authoritatively construed, when measured
against the applicable substantive constitutional doctrine"). The key interpretive question, as
previously explained, is whether the amendments permit the Section 5 analysis to include
crossover districts and whether they permit any tradeoffs between crossover and majorityminority districts. Looking solely to the text of the amendments, the Court believes that they
permit both. Subsection (b) provides that "Any [voting procedure] . . . 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 denies or abridges the right to vote."
42 U.S.C. § 1973c(b). Subsection (d) further clarifies that "[t]he purpose of subsection (b) of
this section is to protect the ability of such citizens to elect their preferred candidates of choice."
42 U.S.C. § 1973c(d). Nothing in the phrase "elect their preferred candidates of choice"
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specifies that voters must do so only from majority-minority districts.6
Influence districts do not fit within the terms of the amendments because voters who only
"influence" an election are not able to choose, and then elect, the candidates who best represent
them. Instead, they can only choose between candidates preferred by other groups. In any
event, the legislative history makes overwhelmingly clear that influence districts are no longer a
factor in the Section 5 analysis under the amendments. See H.R. Rep. No. 109-478, at 70. In
crossover districts, however, minority voters form a sufficiently large percentage of the
registered voter population to select a "preferred candidate of choice" in the primary, and to elect
that preferred candidate -- with crossover voting from those who are not part of the minority
group -- in the general election. See Persily, Promise and Pitfalls 236 (citing Bernard Grofman,
Lisa Handley & David Lubin, Drawing Effective Minority Districts: A Conceptual Framework
and Some Empirical Evidence, 79 N.C. L. REV. 1383, 1407-09 (2001)). Hence, the Court finds
that crossover districts fit within the statutory scheme. Moreover, the Court sees nothing in the
text of the amendments that would prevent a certain amount of tradeoff between majorityminority districts and crossover districts, assuming that minority voters indeed have the ability to
elect preferred candidates of their choice in the crossover districts.
But the amendments did more than just remove influence districts from the preclearance
analysis: they also affirmed that minorities' "ability to elect," not the "totality of the
6
This Court recognizes that this interpretation conflicts with the three-justice plurality's
reading of a similar phrase in the Section 2 context in Bartlett, 129 S. Ct. at 1243-45, although
the four justices in dissent agreed with this Court's reading. Id. at 1250. The plurality's opinion,
however, was based on administrative and constitutional concerns rather than the text of the
statute. Id. at 1244-45, 1247-48. Moreover, the plurality explicitly held that its conclusion did
not apply in the Section 5 context. Id. at 1249; see also id. at 1258 (Souter, J., dissenting)
(discussing Section 2 and Section 5).
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circumstances," is the critical issue in the preclearance of any proposed voting change. Hence,
courts and the Justice Department can no longer consider many of the factors that the Ashcroft
Court identified as relevant to the totality of the circumstances test. Specifically, the
preclearance analysis can no longer consider minority-preferred politicians' views of the
proposed change, nor can it consider whether the position or power of a particular minoritypreferred politician could substitute in some way for the ability to elect. More generally, any
factor that is not related to minorities' "ability to elect" is off the table. This principle is not
limitless, of course: courts and the Justice Department are required to consider certain
constitutional mandates, including compliance with the one person one vote principle and equal
protection principles, and caselaw and history have established that the preclearance analysis
includes consideration of population growth and decline. Infra at 89-90. But the universe of
rationales that can justify a change to voting procedures is now considerably smaller than it was
under Ashcroft.
The third and final question under Boerne is whether the amendments, so construed, are a
congruent and proportional response to the pattern of unconstitutional behavior that Congress
identified and the problems that Congress found infected the Ashcroft standard. It is important
to keep in mind that plaintiffs' challenge here is only to the amendments; the Court has already
found that the general preclearance procedure is a congruent and proportional remedy to the
unconstitutional behavior Congress identified. Shelby County, 2011 WL 4375001, at *80.
In this step of the Boerne analysis, the critical issue is whether Congress is enforcing the
guarantees of the Fourteenth and Fifteenth Amendments, rather than attempting substantively to
redefine those Amendments. Boerne, 521 U.S. at 519-20. That is, the question is whether the
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law can "be understood as responsive to, or designed to prevent, unconstitutional behavior." Id.
at 532. Courts must afford Congress "wide latitude" in deciding what legislation will enforce,
rather than define, a constitutional guarantee. Id. at 519-20. In conducting the third step of the
Boerne analysis, the Supreme Court has been particularly cognizant of the federalism costs of
the challenged law. In Boerne itself, for instance, the Court found that RFRA exceeded
Congress's enforcement power in part because it was "a considerable congressional intrusion into
the States' traditional prerogatives and general authority to regulate for the health and welfare of
their citizens," and imposed "a heavy litigation burden on the states." Id. at 534.
To discern whether subsections (b) and (d) can "be understood as responsive to, or
designed to prevent" intentional voting discrimination, it is important to keep in mind two
foundational points about voting, and about districting in particular. First, "voting is more than
an atomistic exercise." Bush v. Vera, 517 U.S. 952, 1048-49 (Souter, J., dissenting). Voting
districts are explicitly designed to protect certain communities of interest, whether partisan,
issue-oriented, or any of a number of other characteristics. See Miller, 515 U.S. at 916
("traditional districting principles" include "respect for political subdivisions [and] communities
defined by actual shared interests"); see also Pamela S. Karlan & Daryl J. Levinson, Why Voting
is Different, 84 CAL. L. REV. 1201, 1204-08, 1271-19 (1996) (hereinafter Karlan & Levinson,
Why Voting is Different). If voting and representation were perceived as a purely "atomistic
exercise," districting could be reduced to no more than drawing districts of equal size. But, as
the thousands of pages of opinions addressing redistricting issues show, "traditional districting
principles" are aimed at much more than numerical equivalence. See Shaw v. Reno, 509 U.S.
630, 647 (1993) ("Shaw I").
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The second foundational point is why racial groups are sometimes considered
"communities of interest" that can be gathered into districts. Groups defined in part by race are
considered communities of interests if, and only if, empirical evidence demonstrates that group
members' voting behavior is similar. In other words, saying that members of a given racial
group in a certain area currently vote alike is not a stereotype when it is a descriptive fact.
Karlan & Levinson, Why Voting is Different 1204-08, 1217-18. The government may never, of
course, engage in "the offensive and demeaning assumption that voters of a particular race,
because of their race, think alike, share the same political interests, and will prefer the same
candidates at the polls." Miller, 515 U.S. at 911-12 (internal quotation marks and citation
omitted). Nor may the government assume that minority groups that have voted alike in one
election will do so for all time. But when evidence demonstrates members of a racial minority in
a given place have found an "efficacious political identity," League of United Latin American
Citizens v. Perry, 548 U.S. 399, 435 (2006) ("LULAC"), an absolute mandate of federal
government colorblindness is perverse: it allows less colorblind State officials to intentionally
fragment the minority group into several districts (or pack them into one district) to avoid the
election of candidates who represent the group's political identity. Cf. Parents Involved in Cmty.
Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 788 (2007) (hereinafter "Parents Involved")
(Kennedy, J., concurring) ("And, as an aspiration, Justice Harlan's axiom [that our Constitution
is color-blind] must command our assent. In the real world, it is regrettable to say, it cannot be a
universal constitutional principle.").
The record before Congress demonstrated, first, that certain racial groups in covered
jurisdictions had found "efficacious political identit[ies]." LULAC, 548 U.S. at 435. Second, it
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demonstrated extensive intentional attempts to fragment or pack potentially cohesive racial
minorities to ensure that they could not elect representatives attuned to those political interests.
Without evidence of both of those points, Congress would not have been entitled to create a
remedy as sweeping and race-conscious as the preclearance procedure. But given that record
evidence, Congress had the ability under its Fourteenth and Fifteenth Amendment enforcement
authority to design legislation to "respon[d] to . . . or . . . prevent [that] unconstitutional
behavior." Boerne, 521 U.S. at 532.
The unconstitutional behavior Congress was trying to prevent was intentional vote
dilution aimed at making minority votes less effective. The legislation Congress designed
directly responds to that problem by refusing preclearance to any voting change that
"diminish[es] the ability" of such groups "to elect their preferred candidates of choice." 42
U.S.C. § 1973c(b). The legislation is thus precisely congruent to the problem, because it forbids
the entire category of behavior Congress found to be problematic. But because it also forbids
some constitutional behavior -- voting changes that reduce minority voting effectiveness, but not
for intentionally discriminatory reasons -- the Court must consider whether it is proportional to
the problem.
In judging whether subsections (b) and (d) are a proportional response to the problem, the
Court emphasizes again that proportionality of the Ashcroft standard is not at issue. But, as this
Court has construed the statute, the differences between the standards in subsections (b) and (d)
and in Ashcroft are relatively limited. In the districting context, the key difference is that
influence districts are no longer part of the Section 5 calculus. But Congress heard considerable
testimony that including consideration of influence districts in the Section 5 analysis would have
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had deeply problematic results. Allowing tradeoffs between opportunity districts and influence
districts would have created a means to cloak intentional discrimination -- that is, intentional
fragmentation of politically cohesive groups -- under the guise of creating influence districts.
Moreover, as discussed below, Congress had reason to be concerned that keeping influence
districts as part of the Section 5 analysis would leave Section 5 vulnerable to an equal protection
challenge.
The amendments also eliminated consideration of the amorphous "totality of the
circumstances" factors, including consideration of minority-preferred legislators' views of the
proposed voting changes and consideration of the position of particular minority-preferred
politicians. But Congress heard testimony that integrating such factors into Section 5 would
result in a statute that was impossible for the Department of Justice to administer effectively
within its sixty-day window. Moreover, Congress heard testimony that the results of the
preclearance process would be increasingly partisan, subjective, and unpredictable, driving up
costs for both the federal government and the affected jurisdictions. This subjectivity and
unpredictability was compounded by the fact that a "totality of the circumstances" test could
include unspecified factors even beyond those mentioned in Ashcroft. Given the record
evidence, it is quite understandable that Congress concluded that a totality of the circumstances
test could "undermine confidence that the Act will be enforced in a way that transcends party
politics," House Hearing, 109th Cong. 143 (Nov. 9, 2005) (Kengle prepared statement), and
could cause Section 5 to "collapse of its own weight." House Hearing, 109th Cong. 58 (May 4,
2006) (Adegbile statement).
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The standard laid out in subsections (b) and (d) also has several important limitations.
See Boerne, 521 U.S. at 533 ("limitations" including "termination dates, geographic restrictions,
or egregious predicates . . . tend to ensure Congress' means are proportionate to ends legitimate
under § 5"). First, like the rest of Section 5, the amendments are temporally and geographically
limited: they will expire after twenty-five years (that is, two redistricting cycles), and they apply
only in certain jurisdictions. Shelby County, 2011 WL 4375001, at *72-74. In the vote dilution
context, they also have an elegant, self-executing limitation. As this Court has previously
explained, a group defined by race can be considered a community of interest for voting
purposes only when empirical evidence, rather than stereotypes, demonstrates that members of
the minority group vote alike. This critical fact is built in to the "ability to elect" test because, as
racially polarized voting decreases, the number of districts affected by Section 5 decreases as
well. As racially polarized voting decreases, majority-minority districts can frequently be
replaced with crossover districts. See Bartlett, 129 S. Ct. at 1254-55 (Souter, J., dissenting). If
racially polarized voting disappeared entirely -- such that there is no correlation between race
and voting -- it would be virtually impossible for a districting plan to be retrogressive under
Section 5. Persily, Promise and Pitfalls 243. Hence, should racially polarized voting
substantially diminish before twenty-five years have passed -- and with it, the ability (and
motivation) for legislators to draw dilutive districts -- Section 5 will play a dramatically smaller
role in state voting procedures even before it officially expires.
The final consideration under Boerne is the federalism costs the amendments in
subsections (b) and (d) exact, both in terms of "congressional intrusion into the States' traditional
prerogatives" and pragmatic costs, such as litigation costs. 521 U.S. at 534. This Court
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recognizes, of course, that the Voting Rights Act as a whole represents a considerable "intrusion
into the States' traditional prerogatives." But, as explained in Shelby County, that intrusion is
justified by the persistent, purposeful discrimination aimed at minorities attempting to exercise
their core constitutional voting rights. 2011 WL 4375001, at *80. Hence, the only question
here is whether the amendments represent an intrusion beyond that imposed by the general
preclearance regime.
In one sense, the federalism costs are greater under subsections (b) and (d) than they were
under Ashcroft because states have less latitude to choose among theories of representation and
political participation. But, as this Court has construed the statute, Congress narrowed the states'
latitude only as much as necessary to accomplish its goal. States may still draw either crossover
or majority-minority districts, and some tradeoff between them is appropriate. See Bartlett, 129
S. Ct. at 1254-55 (Souter, J., dissenting) (recognizing in Section 2 context that "crossover
districts ha[ve] the value of giving States greater flexibility to draw districting plans with a fair
number of minority-opportunity districts"). Moreover, because influence districts are no longer
protected from retrogression, states have substantially more freedom to redraw district lines in
districts that do not qualify as opportunity districts. In terms of pragmatic costs, subsections (b)
and (d) almost certainly work in the states' favor. The complexity of the test outlined in Ashcroft
would likely have led to very difficult preclearance decisions and extraordinarily complex
litigation. By returning to a test that is substantially closer to the familiar Beer test, Congress
reduced the complexity and costs of the preclearance process.
The amendments in subsections (b) and (d) sweep broadly, and they admittedly capture a
certain amount of behavior that is constitutional. But, as the Court has previously found, the
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retrogression principle itself is justified by the evidence of persistent, intentional discrimination
that Congress amassed. The amendments' modification to the Beer and Ashcroft tests was
necessary to avoid giving cover to intentional discrimination and to prevent an administrability
nightmare that would itself harm covered jurisdictions. Accordingly, the Court concludes that
subsections (b) and (d)'s modifications to the Beer and Ashcroft tests represent a congruent and
proportional response to the problem of intentionally discriminatory dilutive techniques. Hence,
they survive plaintiffs' constitutional challenge.
III. COUNT II
A. Standing
The Court now turns to Count II of plaintiffs' complaint, which is similar to Count I's
challenge to the amendments in several ways. Both counts assert that the amendments are
unconstitutional, but they rest on different theories: Count I claims that the amendments exceed
Congress's enforcement powers, while Count II claims that they violate equal protection
principles.7 Accordingly, the standing analysis for the two claims is in some respects similar.
For the same reasons discussed in part II.A, the Court finds that plaintiffs have standing to bring
their challenge to subsections (b) and (d). Nix was injured because a referendum from which he
would have benefitted was suspended due to the operation of an allegedly unconstitutional law.
Under Akins, he has shown causation and redressability as to subsections (b) and (d). However,
7
Specifically, plaintiffs claim that the amendments violate the equal protection
component of the Due Process Clause of the Fifth Amendment, which is substantively identical
to the Equal Protection Clause of the Fourteenth Amendment. Adarand Constructors, Inc. v.
Pena, 515 U.S. 200, 227 (1995). The Fifth Amendment applies against the federal government,
while the Fourteenth Amendment applies against the states.
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for the reasons given in part II.A, Nix does not have standing to bring an equal protection
challenge to subsection (c).
The D.C. Circuit directed this Court to consider several questions about plaintiffs' Count
II standing on remand. See LaRoque II, 650 F.3d at 794-96. The Court has addressed most of
those issues in the discussion of Count I, but one additional point must be addressed here. The
D.C. Circuit asked whether, given that plaintiffs' equal protection challenge is only facial,
plaintiffs have "met the requirement that litigants claiming injury from a racial classification
establish that they 'personally [have been] denied equal treatment by the challenged
discriminatory conduct.'" Id. at 795 (quoting United States v. Hays, 515 U.S. 737, 743-44
(1995)). This Court does not believe that Hays presents an obstacle for plaintiffs here.
Explaining why requires reviewing one branch of the Supreme Court's equal protection
jurisprudence.
The Hays plaintiffs brought a claim under Shaw I, 509 U.S. at 652, which allows voters
who live in districts allegedly drawn with excessive attention to race to bring an equal protection
challenge. A Shaw claim is not a vote dilution claim, but rather the "analytically distinct claim"
that a voter experiences a stigmatic harm when she is placed into a district because of her race.
Id.; see also Miller, 515 U.S. at 911-913. The plaintiffs in Hays attempted to bring a Shaw
challenge to the creation of a district in which they did not live. 515 U.S. at 739. The Supreme
Court found that they did not have standing. The Court explained that the Shaw I plaintiffs had
standing because they had suffered a particularized stigmatic injury, but that the Hays plaintiffs
had not suffered any such stigmatic injury because they did not allege that they themselves had
been placed into a particular district because of their race. Id. at 744-45.
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Like the plaintiffs in Hays, the plaintiffs here have not been personally subjected to a
racial classification; hence, they cannot claim a stigmatic equal protection injury under Shaw.
But that does not defeat standing, because this Court's conclusion that plaintiffs have standing to
bring this challenge rests on an entirely different conception of their injury. Plaintiffs' injury is
not that they are subjected to a racial classification that creates either concrete or stigmatic
harms, but that a law that allegedly violates equal protection principles denied them the benefit
of the nonpartisan voting referendum. While this is not a "personal[] deni[al] [of] equal
treatment," Hays, 515 U.S. at 744 (internal quotation marks and citation omitted), as would be
required for a plaintiff bringing a Shaw claim, it is a concrete, particularized injury, and that is
what is required under the Supreme Court's standing jurisprudence. See Lujan, 504 U.S. at 560.
Plaintiffs have also offered another, wholly different standing analysis for Count II.
Because plaintiffs' alternative argument would establish standing to bring their subsection (c)
claim, which they do not otherwise have, the Court must consider that argument as well. Citing
Northeastern Florida Chapter of the Associated General Contractors of America v. City of
Jacksonville, 508 U.S. 656 (1993), plaintiffs argue that their injury-in-fact is "the denial of equal
treatment that exists because election changes supported by Plaintiffs and other non-minorities in
Kinston cannot become law without satisfying those amendments' minority-preferences." Plfs.'
Opp. at 35. Or, as they phrase it elsewhere in their briefs, "wholly apart from the referendum,
Plaintiffs have standing as non-minority voters in Kinston who seek to ensure that beneficial
local laws need not run the gauntlet of unconstitutional minority-preferences contained in the
2006 amendments to Section 5." Plfs.' Opp. at 37.
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In Jacksonville, the plaintiff brought a Fourteenth Amendment challenge to a city
ordinance that required that 5% of the amount spent on city contracts be set aside for businesses
with at least 51% female or minority ownership. 508 U.S. at 658, 661. The plaintiff was an
organization of business owners, most of whose businesses did not qualify for the 5% set-aside.
Id. at 658. The Eleventh Circuit concluded that the organization lacked standing because it
could not point to specific contracts its members would have been awarded in the absence of the
set-aside program. Id. at 660. The Supreme Court disagreed:
When the government erects a barrier that makes it more difficult for members of
one group to obtain a benefit than it is for members of another group, a member
of the former group seeking to challenge the barrier need not allege that he would
have obtained the benefit but for the barrier in order to establish standing. The
"injury in fact" in an equal protection case of this variety is the denial of equal
treatment resulting from the imposition of the barrier, not the ultimate inability to
obtain the benefit.
Id. at 666. The Supreme Court identified the core equal protection injury as "the inability to
compete on an equal footing in the bidding process, not the loss of a contract." Id. Here,
plaintiffs allege that the 2006 amendments to Section 5 function as a "discriminatory barrier"
that prevents them from competing equally with minorities in the advancement of "beneficial
local laws" like the referendum. Plfs.' Opp. at 37. They contend that it is therefore irrelevant
whether they would have obtained the benefit -- enactment of the referendum -- but for the
discriminatory barrier.
But one difference between this case and Jacksonville is immediately apparent. In
Jacksonville, it was "more difficult for members of one group to obtain a benefit than it [wa]s for
members of another group." Id. at 666. That is, a white business owner in Jacksonville could
compete for only 95% of the city contract dollars, while a minority business owner could
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compete for 100% of those dollars. Id. at 658-61. Therefore, white business owners were
treated differently than were black business owners in Jacksonville solely because of the color of
their skin. That is not at all true here, because white supporters of the nonpartisan referendum
are in exactly the same position as black supporters of the referendum. The Justice Department's
preclearance letter focused solely on the referendum's ultimate effects, not on whether white or
black citizens proposed and supported it.8 Plaintiffs do not claim that the Justice Department
relied on their race at any point in the decision whether to preclear the referendum; indeed, all
indications are that the Attorney General would have made the same decision if plaintiffs were
minorities. A black Republican or nonpartisan candidate who stood to benefit from the
referendum would be precisely as frustrated as Nix is.
Plaintiffs' argument that white voters have standing to challenge the amendments because
the Voting Rights Act was meant to benefit minorities is unpersuasive. See Mot. Hr'g Tr.
[Docket Entry 66] 22:18-23, 23:3-11, Oct. 26, 2011. The Supreme Court made clear in Shaw I
that both white voters and minority voters could bring a claim of a racial classification injury
caused by the operation of the Voting Rights Act. Shaw I, 509 U.S. at 652 (holding that "white
voters . . . or voters of any other race" could bring claim of stigmatic equal protection injury).
Whether the Voting Rights Act and Section 5 were intended to benefit white or minority voters
was irrelevant. That question is similarly irrelevant here.
8
Ironically, that statement might not be true if the Ashcroft standard were still in place.
When the Justice Department applied Ashcroft to evaluate the switch from nonpartisan to
partisan elections in the Charleston County School Board, the Department did consider how
black representatives and other community members viewed the proposed change. See Letter
from R. Alexander Acosta, Assistant Attorney General, to C. Havird Jones, Jr., Senior Assistant
Attorney General (Feb. 26, 2004).
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Unlike the Jacksonville plaintiff, the plaintiffs here have not shown that the government
classified them based on the color of their skin. Jacksonville, 508 U.S. at 666; see also Townes,
577 F.3d at 546, 548, 550-51 (allowing black habeas petitioner to rely on Jacksonville for
standing because he alleged that white inmate had been treated differently). And unlike the
Shaw I plaintiffs, they do not claim any stigmatic injury. Shaw I, 509 U.S. at 652. The only
concrete way in which the amendments injured plaintiffs was in suspending the referendum, and,
as explained, only subsections (b) and (d) caused that injury. The Court therefore concludes
again that plaintiffs lack standing to bring their challenge to subsection (c). Nonetheless, for the
reasons explained earlier, the Court will proceed to set forth how it would analyze plaintiffs'
Count II claim as to subsection (c) if plaintiffs had standing to pursue that claim.
B. Standard of Review
The baseline standard of review in racial classification cases is well established: racial
classifications, whether employed by the federal government or a state or local government, are
reviewed under strict scrutiny. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
Although there are two reasons that principle might not apply here, the Court concludes that it
should apply strict scrutiny to plaintiffs' claims.
The first reason that strict scrutiny might not apply is that the amendments to Section 5
are, on their face, race-neutral. They provide only that no voting changes that "ha[ve] 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" can be precleared.
42 U.S.C. § 1973c(b). Unlike, say, a set-aside for businesses owned by minorities, the
amendments make no textual distinction between white and minority voters. Still, it is clear
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beyond peradventure that the purpose of Section 5 and the 2006 amendments is to protect
minority voting rights, and that they are applied to do so. See Def.'s Opp. at 12 ("In any event, it
has been clear since at least 1976 . . . that Section 5 is not race-neutral."). Laws "neutral on their
face but 'unexplainable on grounds other than race'" are analyzed under strict scrutiny. Miller,
515 U.S. at 905 (quoting Arlington Heights, 429 U.S. at 266). That principle governs here.
The second reason strict scrutiny might not apply is that, as the Supreme Court has
recognized, voting regulations -- particularly in the context of districting -- are different than
other government actions. While most government actions should be wholly colorblind, a
legislature "always is aware of race when it draws district lines, just as it is aware of age,
economic status, religious and political persuasion, and a variety of other demographic factors."
Shaw I, 509 U.S. at 646. Hence, districting based in part on governmental "aware[ness] of race"
is not always reviewed under strict scrutiny. See id. The Supreme Court's caselaw on how far
this principle extends is extremely fractured. Some members of the Court have endorsed the
proposition that intentional creation of majority-minority districts is a form of mere racial
awareness, not racial classification, while others have disagreed or refused to take a position on
that question. See Vera, 517 U.S. at 958 (plurality opinion) (intentional creation of majorityminority districts can be mere racial awareness that does not require strict scrutiny); id. at 996
(Kennedy, J., concurring) (declining to take a position); id. at 999 (Thomas and Scalia, JJ.,
concurring in judgment) (finding that strict scrutiny applies to all intentional creation of
majority-minority districts); id. at 1003-04 (Stevens, Ginsburg, and Breyer, JJ., dissenting)
(finding that strict scrutiny did not apply to majority-minority districts before the Court); id. at
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1045-46 (Souter, Ginsburg, and Breyer, JJ., dissenting) (rejecting Shaw I's strict scrutiny
framework).
It might be possible to describe Section 5 and the 2006 amendments as mere federal
"awareness" of how race functions in the context of voting laws. If intentional creation of
majority-minority districts is sometimes a function of racial awareness rather than racial
classification, then Section 5 -- a law that creates certain rules and limitations for districting and
other voting regulations -- may be as well. As explained, the Supreme Court's caselaw on when
strict scrutiny applies to state action in drawing districts is severely splintered, and it is unclear
whether it would apply at all in the context of the federal government's enactment of Section 5.
Because translating the Shaw/Vera caselaw into this context is so unwieldy, the Court will
presume that the usual equal protection principles apply rather than the unique exception in the
districting context. Accordingly, the Court will apply strict scrutiny to plaintiffs' equal
protection challenge. Hence, the government must show that the use of race in the 2006
amendments is "narrowly tailored" to achieve a "compelling" government interest. Parents
Involved, 551 U.S. at 720 (internal quotation marks and citations omitted).
C. Merits
1. Subsection (c)
The constitutionality of subsection (c) is largely resolved by the Court's discussion of
subsection (c) with respect to Count I. As explained there, all that Congress has forbidden in
subsection (c) is purposefully discriminatory actions that dilute the voting power of minorities.
As this simply repeats the prohibition of the Fourteenth Amendment, it cannot also violate the
Equal Protection component of the Fifth Amendment. Washington v. Davis, 426 U.S. 229, 239-
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41 (1976) (explaining that intentional discrimination by government actors violates the Equal
Protection Clause of the Fourteenth Amendment); Adarand, 515 U.S. at 224 (explaining that
"[e]qual protection analysis in the Fifth Amendment area is the same as that under the Fourteenth
Amendment") (internal quotation marks and citation omitted).
Here, as in Count I, plaintiffs' real concern is that the Department of Justice will use
subsection (c) as a sword rather than a shield. But the Supreme Court made clear in Miller and
Shaw II that doing so would be unlawful. Miller, 515 U.S. at 924-25; Shaw II, 517 U.S. at 91113. Plaintiffs have pointed to no evidence that the Department of Justice has employed the
"purpose" prong inappropriately after the 1990s round of districting, and the Court will not
presume that the Department will violate the law. See Tilton v. Richardson, 403 U.S. 672, 679
(1971). If that presumption proves wrong, an as-applied challenge may be brought in the
appropriate case.
2. Subsections (b) and (d)
There are two reasons that the amendments in subsections (b) and (d) could raise equal
protection concerns. First, there is the possibility that the amendments function as a "facial
quota-preference for minorities," as plaintiffs put it. Plfs.' Opp. at 24. As the Supreme Court has
explained in other contexts, quotas and rigid minority-preference schemes violate the Equal
Protection Clause. See, e.g., Gratz v. Bollinger, 539 U.S. 244, 258, 269 n.18, 271-72 (2003)
(citing Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)).
More abstractly, there is the possibility that subsections (b) and (d) mandate excessive
governmental race consciousness in violation of equal protection principles. A plurality of the
Supreme Court raised this possibility in a discussion of the necessary prerequisites for bringing a
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Section 2 claim in LULAC, where plaintiffs brought a Section 2 claim in response to a
redistricting plan that, among other things, redrew what had been an African-American influence
district. 548 U.S. at 445-46. Writing for three members of the Court, Justice Kennedy explained
that the fact "[t]hat African-Americans had influence in the district does not suffice to state a § 2
claim in these cases. . . . If § 2 were interpreted to protect this kind of influence, it would
unnecessarily infuse race into virtually every redistricting, raising serious constitutional
questions." Id. (citing Ashcroft, 539 U.S. at 491 (Kennedy, J., concurring)). Justice Kennedy
had expressed similar concerns in his separate concurrence in Ashcroft:
As is evident from the Court's accurate description of the facts in this case, race
was a predominant factor in drawing the lines of Georgia's State Senate
redistricting map. If the Court's statement of facts had been written as the preface
to consideration of a challenge brought under the Equal Protection Clause or
under § 2 of the Voting Rights Act of 1965, a reader of the opinion would have
had sound reason to conclude that the challenge would succeed. Race cannot be
the predominant factor in redistricting under our decision in Miller v. Johnson,
515 U.S. 900 (1995). Yet considerations of race that would doom a redistricting
plan under the Fourteenth Amendment or § 2 seem to be what save it under § 5.
Ashcroft, 539 U.S. at 491 (Kennedy, J., concurring). Although neither Justice Kennedy's
concurrence nor the plurality decision in LULAC spelled out the details of the equal protection
issue, the concern appears to be that excessive consideration of race by the federal government
may cause the sort of stigmatic harms discussed in Shaw I and Miller.
In evaluating whether subsections (b) and (d) violate equal protection principles, a key
point to keep in mind is the narrowness of plaintiffs' challenge. Count II challenges only the
2006 amendments to Section 5. It does not argue that the entire non-retrogression principle is
invalid, only that Ashcroft's refinement of that principle is constitutionally indispensable. See
LaRoque II, 650 F.3d at 794 ("Significantly, plaintiffs do not contest the constitutionality of the
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pre-2006 preclearance standards articulated in Georgia v. Ashcroft and Bossier Parish."). That
is, plaintiffs contend that the retrogression principle complies with the equal protection
component of the Fifth Amendment only if, as Ashcroft decreed, (1) states may trade influence
districts for opportunity districts and (2) courts and the Justice Department can take into account
other jurisdiction-specific factors, such as minority-preferred legislators' views of proposed
voting changes, in making preclearance decisions. While plaintiffs' briefing on this argument is
cursory, see Plfs.' MSJ at 44-45, their argument is presumably that the Ashcroft standard is a
narrowly tailored response to the government's compelling interest, but that subsections (b) and
(d) are not.
Given that plaintiffs do not challenge the general retrogression principle, they may have
conceded that the government indeed has a compelling interest in remedying discrimination in
voting. But even if plaintiffs do not concede that point, the Court would conclude that Congress
does in fact have such a compelling interest. Congress has identified historical and ongoing
intentional discrimination that strikes at the heart of two of the most important rights protected
by the Constitution -- the right to vote and the right to be free from governmental discrimination
based on race. Congress heard testimony in 2005 and 2006 that intentionally dilutive techniques
have been used as long as minorities have been able to vote. Witness testimony and other record
evidence indicated that discriminatory, dilutive efforts are ongoing in covered jurisdictions.
Moreover, Congress received evidence that such efforts would increase in the absence of Section
5's deterrent effect.
The Supreme Court has recognized that "remedying the effects of past intentional
discrimination" can be a compelling interest. Parents Involved, 551 U.S. at 720 (citing Freeman
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v. Pitts, 503 U.S. 467, 494 (1992)). This recognition has been particularly clear in the school
desegregation cases that followed in the wake of Brown v. Board of Education, 347 U.S. 483
(1954), and the Court finds that those cases provide important guidance here. In Swann v.
Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 25 (1971), the Supreme Court approved
the use of "mathematical ratios" for student body racial composition "as a starting point in the
process of shaping a remedy, rather than an inflexible requirement." In explaining why limited
use of such ratios was appropriate under the Equal Protection Clause, the Court said:
Absent a constitutional violation there would be no basis for judicially ordering
assignment on a racial basis. All things being equal, with no history of
discrimination, it might well be desirable to assign pupils to schools nearest their
homes. But all things are not equal in a system that has been deliberately
constructed and maintained to enforce racial segregation. The remedy for such
segregation may be administratively awkward, inconvenient, and even bizarre in
some situations and may impose burdens on some; but all awkwardness and
inconvenience cannot be avoided in the interim period when remedial adjustments
are being made to eliminate the dual school systems.
Id. at 28. The Court also noted that facially "'racially neutral' assignment plans proposed by
school authorities . . . may be inadequate" to remedy the problems caused by past segregation.
Id. These observations assist the analysis in the voting rights context.
The Supreme Court has also held that racial classifications can be used to remedy past
discrimination outside the school desegregation context. In United States v. Paradise, 480 U.S.
149, 163, 166 (1987), for example, every member of the Court agreed that racial classifications
could sometimes be used to remedy past discrimination, and a majority of the Court approved a
rule that a state agency that had systematically excluded blacks from promotion had to award
50% of promotions to qualified black candidates until the agency developed an acceptable
alternative plan. In Adarand v. Pena, 515 U.S. 200, 237, 243, 269 (1995), seven members of the
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Court concluded that racial classifications could be used to remedy past discrimination, and the
Court remanded to the lower court to decide whether a particular federal preference program for
minority subcontractors was appropriate.
The Supreme Court has, however, limited in several ways the government's ability to use
racial classifications even as a remedy. Mere invocation of the word "remedial" cannot justify
any use of racial classifications that the government desires. See Parents Involved, 551 U.S. at
720-21. For instance, a school district that has never imposed de jure segregation, or that has
achieved unitary status, cannot invoke remedial justifications for classifying students by race.
Id. Moreover, as Swann recognized, "there are limits" to the use of racial classifications even to
remedy de jure segregation. 402 U.S. at 28. The Swann Court explained that if "we were to read
the holding of the District Court [mandating certain actions to desegregate schools] to require, as
a matter of substantive constitutional right, any particular degree of racial balance or mixing, that
approach would be disapproved and we would be obliged to reverse." Id. Justice Kennedy,
concurring in Parents Involved, repeated the same points: "The Court has allowed school
districts to remedy their prior de jure segregation by classifying individual students based on
their race. . . . The remedy, though, was limited in time and limited to the wrong." 551 U.S. at
796 (Kennedy, J., concurring).
The Supreme Court has also ensured that remedial race-conscious measures are closely
tied to the harms caused by discrimination by requiring express findings of official
discrimination before allowing state and local governments to use race-conscious remedies. See,
e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 489 (1989). In the case of such use of
race-conscious remedies by the federal government, the Court has "recognized the special
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competence of Congress to make findings with respect to the effects of identified past
discrimination and its discretionary authority to take appropriate remedial measures." Regents of
the Univ. of Cal. v. Bakke, 438 U.S. 265, 302 n.41 (1978); see also Adarand, 515 U.S. at 230-31
(noting that application of strict scrutiny to Congress's use of racial classifications does not
preclude some deference to Congress's exercise of its enforcement authority). The Supreme
Court has also suggested, however, that Congress is not obliged to make such findings, as state
and local governments are, because the Fourteenth and Fifteenth Amendments enlarge its power
rather than restricting it. See J.A. Croson Co., 488 U.S. at 490; but see Adarand, 515 U.S. at
224, 226-31; see also id. at 264-65 (Souter, J., dissenting). Justice Scalia, concurring in J.A.
Croson Co., elaborated on that point: "[I]t is one thing to permit racially based conduct by the
Federal Government -- whose legislative powers on their face were explicitly enhanced by the
Fourteenth Amendment -- and quite another to permit it by the precise entities against whose
conduct in matters of race that Amendment was specifically directed." Id. at 521-22 (internal
citations omitted). Justice Scalia also pointed out that "a sound distinction between federal and
state (or local) action based upon race rests not only upon the substance of the Civil War
Amendments, but upon social reality and governmental theory," because "[t]he struggle for
racial justice has historically been a struggle by the national society against oppression in the
individual States . . . . And the struggle retains that character in modern times." Id. at 522.
Even under the limitations the Supreme Court has imposed on the remedial use of race,
the Court concludes that Congress has a compelling interest here in remedying prior state- and
local government-sponsored racial discrimination -- and, even more importantly, in preventing
the ongoing discriminatory efforts Congress identified. Intentional vote dilution, like school
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segregation, is one of the most pernicious forms of de jure discrimination against minorities, and
Congress is entitled to remedy any "harm that is traceable to" that intentional discrimination.
Parents Involved, 551 U.S. at 721. Identifying the harm "traceable to" discrimination is, of
course, more complicated in the voting context than in the de jure school segregation context, as
jurisdictions do not generally openly announce voting discrimination in the same way that school
segregation was announced. But Congress compiled an extensive legislative record that tied the
remedies to areas of de jure discrimination in voting; it also relied on past legislative records
finding intentional discrimination in covered jurisdictions. In doing so, Congress exercised its
"special competence . . . to make findings with respect to the effects of identified past
discrimination" and its latitude "to take appropriate remedial measures." Bakke, 438 U.S. at 302
n.41.
"All things being equal, with no history of discrimination," Swann, 402 U.S. at 28,
Congress would have no interest in such supervision of state voting procedures. "But all things
are not equal in a system that has been deliberately constructed and maintained to enforce racial
segregation." Id. In light of the extensive record compiled by Congress in 2005 and 2006, the
Court finds that Congress has a compelling interest in crafting a remedy to address past and
ongoing discrimination in voting.
The remaining question is whether the amendments contained in subsections (b) and (d)
are sufficiently narrowly tailored to achieving Congress's interests without unnecessary reliance
on racial classifications. It bears repeating that plaintiffs have not challenged Ashcroft's
interpretation of the retrogression standard, so the question before the Court is whether the
modification of the Ashcroft standard in subsections (b) and (d) -- eliminating consideration of
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influence districts and other factors unrelated to minorities' "ability to elect" -- dooms the
amendments on narrow tailoring grounds. The Court finds that it does not. Plaintiffs' primary
complaint is that the amendments create an inflexible quota, but the Court is not persuaded that
subsections (b) and (d) make the Section 5 analysis less flexible. It is true that states can no
longer substitute influence districts for opportunity districts, but there is no longer any concern
that influence districts will be protected from retrogression and frozen in place. See LULAC,
548 U.S. at 446; see also, e.g., Senate Hearing, 109th Cong. 56, 101(May 16, 2006) (witnesses
agreeing that influence districts need not be protected from retrogression under the new
standard); Thernstrom, Section 5 of the Voting Rights Act, 5 GEO. J.L. & PUB. POL'Y at 71.
Even if the amendments do make Section 5 less flexible, they still do not create the facial
quota of which plaintiffs complain. As defendant points out, subsections (b) and (d) did not
overturn the prior Section 5 caselaw that provided that there could not be an "utterly inflexible
prohibition on retrogression." Def.'s Opp. at 39 (citing City of Richmond v. United States, 422
U.S. 358, 370-72 (1975)). Even before Ashcroft, the Department had stated that it did not
"require the reflexive imposition of objections in total disregard of the circumstances involved or
the legitimate justifications in support of changes that incidentally may be less favorable to
minority voters." Revision of Procedures for the Administration of Section 5 of the Voting
Rights Act of 1965, 52 Fed. Reg. 486, 488 (Jan. 6, 1987)). In its current regulations, the Justice
Department has similarly acknowledged that it must consider "the extent to which a reasonable
and legitimate justification for the change exists." 28 C.F.R. § 51.57(a). Recent guidelines
issued by the Department state that retrogression may be "unavoidable" due to "shifts in
population or other significant changes since the last redistricting (e.g., residential segregation
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and demographic distribution of the population within the jurisdiction, the physical geography of
the jurisdiction, the jurisdiction's historical redistricting practices, political boundaries, such as
cities or counties, and/or state redistricting requirements)." Guidance Concerning Redistricting
Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, at 7472 (Feb. 9, 2011). In such
situations, retrogressive plans may be precleared when the jurisdiction demonstrates that "a
less-retrogressive plan cannot reasonably be drawn." Id. Finally, retrogressive plans must be
precleared when avoiding retrogression would require a district to violate Shaw I and Miller. Id.
Hence, whatever race-consciousness is mandated by subsections (b) and (d) resembles the
flexible mathematical ratios approved in Swann more than it resembles an inflexible quota. See
Swann, 402 U.S. at 25. Certainly, the standard laid out in subsections (b) and (d) is more
flexible than the 50% promotion rule approved in Paradise. See 480 U.S. at 163-64.
Statutes may be invalidated on tailoring grounds when the challengers can suggest a
narrower alternative that would be successful in curing the identified problem. See United States
v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000). Other than pointing to the Ashcroft
standard, plaintiffs here have not attempted to do so. But Congress justifiably decided that
Ashcroft's interpretation of the effects prong would not remedy the problems of intentional vote
dilution that it identified. As the record before Congress confirmed, Ashcroft gave jurisdictions
greater leeway to disguise intentional discrimination and it created significant administrability,
subjectivity, and partisanship problems. Hence, Ashcroft -- whether it was more or less narrow
than subsections (b) and (d) -- was not "tailored" to achieve Congress's ends. Plaintiffs' failure to
offer hypothetical alternative amendments that would cure the Ashcroft problems but be
narrower than (b) and (d) may reflect the difficulty of imagining what such amendments would
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be. As previously explained, the 2006 amendments respond to specific problems in the Ashcroft
holding in a relatively discrete way, so there is not much ground between the Ashcroft standard
that is acceptable to plaintiffs and the amendments that they challenge. The Court therefore
finds that the 2006 amendments in subsections (b) and (d) are narrowly tailored to respond to the
historical and ongoing problems of voting discrimination identified by Congress.
As to the second basis for an equal protection challenge -- that race is "infuse[d] . . . into
virtually every redistricting," LULAC, 548 U.S. at 446 -- the amendments are actually an
improvement over the Ashcroft standard. Under Ashcroft, states might have had to protect
influence districts from retrogression in the same way that opportunity districts were protected.
Section 5's non-retrogression principle would thus have come into play in every influence district
as well as every opportunity district. Given how many districts could conceivably be defined as
influence districts, race could truly have been infused into "virtually every redistricting."
Moreover, under the Ashcroft standard, the Justice Department would have had to obtain the
views of minority voters and minority-preferred candidates on any proposed election change -- a
considerably broader and more unwieldy undertaking than the purpose or effects test, and one
that would have required an even more racially-inflected view of elections. See supra note 8
(citing Letter from R. Alexander Acosta, Assistant Attorney General, to C. Havird Jones, Jr.,
Senior Assistant Attorney General (Feb. 26, 2004)).
For the reasons previously explained, the Court does not believe that an explicitly racial
problem can be resolved with no reference to race. To that extent, then, race must be infused
into at least some redistricting processes for the duration of the amended Section 5. Cf. Swann,
402 U.S. at 28 (remedying de jure segregation may be "administratively awkward, inconvenient,
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and even bizarre in some situations and may impose burdens on some; but all awkwardness and
inconvenience cannot be avoided in the interim period when remedial adjustments are being
made to eliminate" the vestiges of segregation). But Congress restricted the scope of the racial
inquiry when it enacted the 2006 amendments contained in subsection (b) and (d), while at the
same time tailoring the amendments to respond as effectively as possible to the problems of
racial discrimination in voting. The Court finds that doing so was not a violation of equal
protection.
CONCLUSION
This Court explained in Shelby County that Congress, the "coequal and representative
branch of our Government," has the preeminent constitutional role under the Fourteenth and
Fifteenth Amendments in determining the legislation needed to enforce those Amendments'
guarantees. See Shelby County, 2011 WL 4375001, at *80; Walters v. National Ass'n of
Radiation Survivors, 473 U.S. 305, 319 (1985); see also Nw. Austin II, 129 S. Ct. at 2513.
Congress emphatically determined that the amendments were indeed necessary to enforce the
Fourteenth and Fifteenth Amendments' guarantees: the amended Section 5 passed by a vote of
390 to 33 in the House and 98 to 0 in the Senate. See 152 Cong. Rec. S8012 (daily ed. July 20,
2006); 152 Cong. Rec. H5143-5207 (daily ed. July 13, 2006). And, as the Court found with
respect to the challenge to the reauthorization of the preclearance regime as a whole, Congress
carefully and extensively justified its decisions to amend the statute to overturn or modify two
Supreme Court decisions interpreting Section 5. This Court declines to overturn that careful,
well-supported judgment.
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For the foregoing reasons, the Court will deny plaintiffs' motion for summary judgment,
and grant the motions for summary judgment filed by the Attorney General and the defendantintervenors. A separate order has been filed on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: December 22, 2011
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Appendix
This Appendix lays out the full citations for the House and Senate hearings cited in the opinion,
as well as where text versions can be found on the internet. PDFs of most hearings are available
at http://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CHRG.
House Hearing (October 18, 2005):
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. 1 (Oct. 18, 2005),
available at
http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg24033/html/CHRG-109hhrg24033.htm
1 House Hearing, Scope (Oct. 25, 2005):
1 Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose, Hearing before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1 (Oct. 25, 2005)
("1 History, Scope, & Purpose")
2 House Hearing, Scope (Oct. 25, 2005):
2 Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose, Hearing before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1685 (Oct. 25,
2005)
House Hearing (October 25, 2005):
Voting Rights Act: The Continuing Need for Section 5, Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 109th Cong 1 (Oct. 25, 2005), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg24121/html/CHRG-109hhrg24121.htm
House Hearing (November 1, 2005):
Voting Rights Act: Section 5 – Preclearance Standards, Hearing before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 109th Cong. 1 (Nov. 1, 2005), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg24283/html/CHRG-109hhrg24283.htm
House Hearing (Nov. 9, 2005):
Voting Rights Act: The Judicial Evolution of the Retrogression Standard, Hearing Before the
Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 1 (Nov. 9, 2005),
available at
http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg24504/html/CHRG-109hhrg24504.htm
House Hearing (Mar. 8, 2006):
1 Voting Rights Act: Evidence of Continued Need, Hearing Before the Subcomm. on the
Constitution of the H. Comm. on the Judiciary, 109th Cong. 1 (Mar. 8, 2006)
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House Hearing (May 4, 2006):
Fannie Lou Hamer, Rose Parks, and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act of 2006 (Part I), Hearing Before the Subcomm. on the Constitution of the H.
Comm. on the Judiciary, 109th Cong. 1 (May 4, 2006), available at:
http://www.gpo.gov/fdsys/pkg/CHRG-109hhrg27334/html/CHRG-109hhrg27334.htm
Senate Hearing (May 9, 2006):
An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to
Reauthorization, Hearing Before the S. Comm. on the Judiciary, 109th Cong. 1 (May 9, 2006),
available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28213/html/CHRG-109shrg28213.htm
Senate Hearing (May 10, 2006):
Modern Enforcement of the Voting Rights Act, Hearing Before the S. Comm. on the Judiciary,
109th Cong. 1 (May 10, 2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28342/html/CHRG-109shrg28342.htm
Senate Hearing (May 16, 2006):
The Continuing Need for Section 5 Pre-Clearance, Hearing before the S. Comm. on the
Judiciary, 109th Cong. 1 (May 16, 2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg28753/html/CHRG-109shrg28753.htm
Senate Hearing (May 17, 2006):
Understanding the Benefits and Costs of Section 5 Pre-Clearance, Hearing Before the S. Comm.
on the Judiciary, 109th Cong. 1 (May 17, 2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg29625/html/CHRG-109shrg29625.htm
Senate Hearing (June 21, 2006):
Reauthorization of the Act's Temporary Provisions: Policy Perspectives and Views from the
Field, Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the
S. Comm. on the Judiciary, 109th Cong. 1 (June 21, 2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg31269/html/CHRG-109shrg31269.htm
Senate Hearing (July 13, 2006):
Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After
LULAC v. Perry, Hearing Before the Subcomm. on the Constitution, Civil Rights and Property
Rights of the S. Comm. on the Judiciary, 109th Cong. 1 (July 13, 2006), available at
http://www.gpo.gov/fdsys/pkg/CHRG-109shrg33836/html/CHRG-109shrg33836.htm
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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STEPHEN LAROQUE, et al.
Plaintiffs,
v.
Civil Action No. 10-0561 (JDB)
ERIC H. HOLDER, Jr., in his official
capacity as Attorney General of the United
States,
Defendant.
ORDER
Upon consideration of [23] plaintiffs' motion for summary judgment, [55, 56] the
Attorney General's motion for summary judgment, [54] defendant-intervenors' motion for
summary judgment, [52] defendant-intervenors' motion to dismiss, the various memoranda, and
the entire record herein, and for the reasons stated in the Memorandum Opinion issued on this
date, it is hereby
ORDERED that [55, 56] the Attorney General's motion for summary judgment and [54]
the defendant-intervenors' motion for summary judgment are hereby GRANTED; and it is
further
ORDERED that [23] plaintiffs' motion for summary judgment is DENIED; and it is
further
ORDERED that [52] defendant-intervenors' motion to dismiss in DENIED AS MOOT.
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SO ORDERED.
/s/
JOHN D. BATES
United States District Judge
Dated: December 22, 2011
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CERTIFICATE OF SERVICE
I hereby certify that, on January 6, 2012, I caused seven copies of the foregoing
document to be filed with the clerk of this Court by hand delivery, and I
electronically filed the original of the foregoing document with the clerk of this
Court by using the CM/ECF system, which will serve the following counsel for
Appellees at their designated electronic mail addresses:
Diana K. Flynn (Diana.K.Flynn@usdoj.gov)
Linda F. Thome (linda.thome@usdoj.gov)
Counsel for Defendant-Appellee
J. Gerald Hebert (ghebert@campaignlegalcenter.org)
Counsel for Intervenor-Appellees
January 6, 2012
/s/ Michael A. Carvin
MICHAEL A. CARVIN
Counsel for Appellants