Amicus Brief, Shelby County, Alabama, v. Eric H. Holder, Jr., Attorney General of the United States of America, et al

Amicus Brief, Shelby County, Alabama, v. Eric H. Holder, Jr., Attorney General of the United States of America, et al

February 4, 2013

Congress’s decision in 2006 to reauthorize § 5 of the Voting Rights Act for 25 years and to maintain the existing coverage formula was a reasonable and appropriate exercise of its enforcement authority under the Fourteenth and Fifteenth Amendments. The jurisdictions covered by § 5 are places where discriminatory voting practices have historically been severe. While many of these jurisdictions have made substantial progress toward eliminating discriminatory voting practices, the legislative record amassed by Congress—as well as more recent history—shows that these gains are fragile and that discriminatory practices still persist. This Court should not take the extraordinary step of second-guessing Congress’s determination that § 5 is still needed, given the fundamental nature of the right to vote, the careful deliberation that Congress gave to the matter, and the extensive factual findings on which Congress’s judgment rests.

We make three key points below.

1. If § 5 were to be invalidated, there is a real and substantial risk that the progress made in the covered jurisdictions since 1965 would be rolled back. American history offers a valuable lesson here. Following the Civil War, Congress enacted legislation designed to protect African Americans’ right to vote, and federal authorities aggressively enforced these laws. These efforts led to substantial gains in African-American voter registration and political participation throughout the South. But those gains were quickly wiped out once Reconstruction ended. Decisions of this Court invalidating or narrowly construing federal laws designed to protect African-American voting rights played a major role in this reversal. With no effective federal statutory protection for minority voting rights, states and local jurisdictions implemented a wide variety of discriminatory laws and practices that effectively nullified the Fifteenth Amendment’s guarantees for generations.

Recent court decisions show that there is a risk that similar retrenchment would occur in the covered jurisdictions if § 5 were not in place. Relying on § 5, federal courts have blocked enforcement of new laws in Texas, Florida, and South Carolina that had the potential to disproportionately prevent minority voters from casting ballots. These included a strict new voter identification law in Texas and new restrictions on early voting in Florida. A court also blocked South Carolina’s new voter ID law from taking effect in the 2012 election because of likely discriminatory impact on African-American voters. While the court allowed the law to be enforced in future elections, it did so in reliance on a finding that the State had adopted ameliorative provisions that would reduce discriminatory impact in future elections, with two judge noting that § 5 had played an instrumental role in persuading the State to adopt these provisions and construe them broadly. A court also refused to pre-clear Texas’s new Congressional, State Senate, and State House redistricting plans, specifically concluding that both the Congressional plan and the Senate plan were enacted with a discriminatory intent. Thus § 5 played a critical role in protecting minority voting rights in the most recent election cycle. If § 5 were not in place, covered jurisdictions would find it much easier to implement discriminatory voting practices, and there is a significant risk that the gains of the last five decades would be eroded, just as the gains of the Reconstruction era were lost once the statutory scheme to protect those rights was no longer in force.

2. Congress’s determinations that §5 is still needed to preserve and continue the progress of the last four decades and that the existing coverage formula remains appropriate are amply supported by the legislative record and are entitled to the highest degree of deference from this Court. Petitioner Shelby County challenges the conclusions that Congress drew from the record and urges the Court to reweigh the evidence and draw its own conclusions. But that is not the proper role of this Court. As this Court has held and the Court of Appeals properly recognized, “[t]he Constitution gives to Congress the role of weighing conflicting evidence in the legislative process.” Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 199 (1997). The Court does not reweigh the evidence de novo, but instead looks simply to whether Congress has drawn reasonable inferences based on substantial evidence. Here, Congress amassed a substantial legislative record and reasonably concluded from that evidence that the protections of § 5 are still necessary and that the existing coverage formula remains appropriate. Those findings are entitled to deference. The Court should reject Shelby County’s invitation to substitute its own judgment for the considered judgment of Congress.

3. To the extent that the coverage formula is over-inclusive or under-inclusive, Congress intended that adjustments would be made on a case-by-case basis through the bailout and bail-in mechanisms. Congress anticipated that jurisdictions with “clean” records would avail themselves of bailout, and in fact, the number of bailouts has increased dramatically since 2006. Obtaining a bailout is not a difficult or expensive procedure, and since 1982, when the bailout procedure was liberalized, no application for a bailout has been rejected. There is every reason to expect that the number of bailouts will continue to climb, which will naturally reduce the reach of § 5 in the manner that Congress intended.

In sum, striking down the 2006 reauthorization and invalidating § 5 wholesale, as Shelby County now urges, could have far-reaching consequences for minority voters. Without the continued protection of § 5, there is a significant risk of “backsliding” by covered jurisdictions and a likelihood that millions of minority voters will face new barriers to the exercise of their most fundamental political right. The Court should not allow this to happen. It should respect the judgment of Congress as to the both the continued need for the protections of § 5 and the appropriateness of the existing coverage formula.

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