No. 12-96

In the'upreme Court of the Jniteb 6tate5

SHELBY COUNTY, ALABAMA,Petitioner,

V.

ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL.,Respondents.

ON WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE HONORABLE CONGRESSMANJOHN LEWIS AS AMICUS CURIAE IN SUPPORT OFRESPONDENTS AND INTERVENOR-RESPONDENTS

Aderson B. FrancoisHOWARD UNIVERSITY

SCHOOL OF LAWCivil Rights Clinic2900 Van Ness Street NWWashington, D.C. 20008(202) 806-8065

Deborah N. ArcherCounsel of Record

Tamara C. BelinfantiErika L. Wood

NEW YORK LAw SCHOOLRACIAL JUSTICE PROJECT

185 West BroadwayNew York, NY 10013

(212) 431-2138Deborah.Archer@nyls.edu

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TABLE OF CONTENTS

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

TABLE OF CITED AUTHORITIES...................... iv

INTEREST OF AMICUS CURIAE ....................... 1

SUMMARY OF ARGUMENT................................ 2

ARGUM ENT .......................................................... 5

I. The History of Voting Rights InAmerica Has Been One of RecurringRetrenchment and ReconstructionRather than Uninterrupted andContinuous Progress ................................ 5

A. Young Men and Women Riskedand Sometimes Gave Their LivesDuring The Civil ' RightsMovement to Secure the Right toVote for All Americans...................... 5

B. A Century Before theCongressman Was NearlyMurdered for Trying to ExerciseThe Right to Vote, His Great-Great-Grandfather Freely VotedDuring Reconstruction...................... S

C. Congressman Lewis' PublicService Career Has Been Devotedto the Proposition that DemocracyIs Not a State but an Act that

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Requires Continued Vigilance toEnsure a Fair and FreeDemocracy....................................... 13

II. Section 5 of the Voting Rights ActRemains Crucial to Protect the Rightsof All Americans to Participate in OurElectoral System Free from RacialDiscrimination......................................... 16

A. The Substantial and PersistentElectoral Discrimination inGeorgia is Indicative of theContinuing Need for Section 5........... 17

B. Recent Increases in MinorityVoting Strength and the Electionof Minority CandidatesEngendered DiscriminatoryReponses in Covered Jurisdictions.... 21

C. Section 5 of the Voting Rights ActPrevented ElectoralDiscrimination Against Racial andEthnic Minorities in the 2012Election........................................... 24

1. Section 5 PreventedDiscriminatory VoterIdentification Laws fromDisenfranchising MinorityVoters in the 2012 Election ........................ 24

2. Section 5 Prevented theReduction of Voting Hours in

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the 2012 Election, AssuringMinority Voters Access to thePolls................................... 29

3. Section 5 Prevented theDiscriminatory Dilution ofMinority Voting Strength inthe 2012 Election.................... 32

4. Section 2 of the Voting RightsAct Would Not Have Been asEffective as Section 5 inPreventingDisenfranchisement ofMinority Voters During the2012 Presidential Election......... 35

CON CLU SION ....................................................... 38

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TABLE OF CITED AUTHORITIES

Page(s)

Cases

Bartlett v. Strickland, 556 U.S. 1 (2009).............. 16Beer v. United States, 425 U.S. 130 (1976) ............. 26Florida v. United States, No. 11-1428, 2012 WL

3538298 (D.D.C. Aug. 16, 2012).................. 30, 31Giles v. Harris, 189 U.S. 475 (1903)..................... 13Giles v. Teasley, 193 U.S. 146 (1904).................... 13Gomillion v. Lightfoot, 364 U.S. 339 (1960)............ 13Guinn v. United States, 238 U.S. 347 (1915)......... 13Lane v. Wilson, 307 U.S. 268 (1939)..................... 13League of United Latin Am. Citizens v. Perry, 548

U.S. 399 (2006) ................................................. 22Morales v. Handel, No. 1:08-CV-3172 (N.D. Ga. Oct.

27, 2008).......................................................... 19, 20Myers v. Anderson, 238 U.S. 368 (1915)............... 13Neal v. Delaware, 103 U.S. 370 (1880)................. 13Nixon v. Condon, 286 U.S. 73 (1932).................... 13Nixon v. Herndon, 273 U.S. 536 (1927)................ 13Nw. Austin Mun. Util. Dist. No. One v. Holder, 557

U.S. 193 (2009) ................................................... 8Perez v. Perry, 835 F.Supp.2d 209 (W.D. Tex. 2011),

vacated and remanded, 132 S.Ct. 934 (2012)...... 34Perez v. Texas, No. 11-CA-360, 2012 WL 4094933

(W.D. Tex. Feb. 28, 2012).................................. 34Smith v. Allwright, 321 U.S. 649 (1944) .............. 13South Carolina v. Katzenbach, 383 U.S. 301 (1966)

................................................................... 35, 36, 38South Carolina v. United States, No. 12-203, 2012

WL 4814094 (D.D.C. Oct. 10, 2012)............... 28, 29

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Terry v. Adams, 345 U.S 461 (1953)..................... 13Texas v. Holder, No. 12-cv-128, 2012 WL 3743676

(D.D.C. Aug. 30, 2012).........................25, 26, 33, 34Texas v. United States, No. 11-1303, 2012 WL

3671924 (D.D.C. 2012), petition for cert. filed, 81USLW 3233 (U.S. Oct 19, 2012)(No. 12-496) 32, 33

United States v. Cruikshank, 92 U.S. 542 (1876) ... 13United States v. Reese, 92 U.S. 214, 218 (1875)...... 13Williams v. Mississippi, 170 U.S. 213 (1898).... 10, 13

Statutes

Civil Rights Act of 1866, 14 Stat. 27 (1866)............12Civil Rights Act of 1870 (The Enforcement Act), 16

Stat. 140 (1870).....................................................12Civil Rights Act of 1871, 17 Stat. 13 (1871)...... 12Fla. Stat. § 101.657(d) (2010) ............................... 30Fla. Stat. § 101.657(d) (2011) ............................... 30S.C. Code Ann. § 7-13-710 (D)(1)(b) (2011)............. 27S.C. Code Ann. § 7-13-710(A) (2011).................... 27U.S. Const. pmbl .................................................... 3Voter Empowerment Act of 2013, H.R. 12, 113th

Cong. (2013)........................................................ 14Voting Rights Act of 1965, Pub. L. No. 89-110, 79

Stat. 445 (codified at 42 U.S.C. § 1973 et seq.)...... 2Voting Rights of Homeless Citizens Act of 1997, H.R.

74, 105th Cong. (1997)....................................... 14

Other Authorities

152 Cong. Rec. H5164 (daily ed. July 13, 2006)(statement of Rep. Lewis)................................... 15

Alexander Keyssar, The Right to Vote: The ContestedHistory of Democracy in the United States (2d ed.2009)............................................................. 11, 12

Brief for Cato Institute as Amicus Curiae SupportingPetitioner .......................................................... 21

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Brief for Georgia Governor Sonny Perdue as AmicusCuriae Supporting Appellants, Nw. Austin Mun.Util. Dist. No. One v. Holder, 557 U.S. 193 (2009)............................................................................ 17

Brief for Petitioner .................................................. 3Brief for the Hon. Congressman John Lewis as

Amicus Curiae Supporting Appellant, Nw. AustinMun. Util. Dist. No. One v. Holder, 557 U.S. 193(2009) ................................................................... 9

Cong. Globe, 42nd Cong. 1st Sess. 389-92 (1871) ... 11Congressman John Lewis, 40th Anniversary of the

Voting Rights Act (July 28, 2005)..................... 14Finding Your Roots: John Lewis and Cory

Booker (PBS 2012)........................................... 3, 9Gabriel J. Chin & Randy Wagner, The Tyranny of

the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev.65 (2008)............................................................. 10

H. Rep. No. 109-478 (2006).............................. 4, 17Howard Zinn, A People's History of the United States

(5th ed. 2003).................................................... 10John Lewis, Walking with the Wind: A Memoir of the

Movement (1998).....................................2, 5, 6, 7Juan Williams, The 1964 Civil Rights Act-Then and

Now, 31 Human Rights 6 (2004)....................... 23Letter from Loretta King, Acting Assistant Attorney

Gen., U.S. Dept. of Justice, to the Hon. ThurbertE. Baker, Attorney Gen. of Ga. (May 29, 2009).. 19,20

Letter from Thomas E. Perez, Assistant AttorneyGen., U.S. Dep't of Justice, to C. Havird Jones, Jr.,Assistant Deputy Attorney Gen. of S.C. (Dec. 23,2011)............................................................... 27,28

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Letter from Thomas E. Perez, Assistant AttorneyGen., U.S. Dep't of Justice, to Keith Ingram, Dir.of Elections, Office of the Tex. Sec'y of State (Mar.12, 2012)...................................................... 25, 26

Letter from Wan J. Kim, Assistant Attorney Gen.,U.S. Dep't of Justice, to Tommy Coleman, Esq.(Sept. 12, 2006)................................................. 18

Michael C. Herron & Daniel E. Smith, Early Votingin Florida in the Aftermath of House Bill 1355(Working Paper, Jan. 10, 2013) ............... 30, 31, 32

President Lyndon B. Johnson, Special Message tothe Congress: The American Promise (Mar. 15,1965)..................................................................... 8

President Richard Nixon, Address to the Nation onEqual Educational Opportunities and SchoolBusing (Mar. 16, 1972)...................................... 23

President Ronald Reagan, Remarks on Signing theVoting Rights Act Amendments of 1982 (June 29,1982)..................................................................... 2

Press Release, John Lewis, On Anniversary ofBloody Sunday, Rep. John Lewis Cites CurrentVoting Rights Struggle (Mar. 8, 2012).............. 14

R54, 119th Gen. Assemb., Reg. Sess. (S.C. 2011-2012)................................................................... 27

S. 14, 2011 Leg., 79th Sess. (Tex. 2011)............... 25Taylor Branch, At Canaan's Edge: America in the

King Years 1965-1968 (2006) ............................. 8To Examine the Impact and Effectiveness of the

Voting Rights Act: Hearing Before the Subcomm.on the Constitution of the Comm. on the JudiciaryH.R., 109th Cong. 58 (2005).............................. 36

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INTEREST OF AMICUS CURIAE

Amicus Curiae, Congressman John Lewis, isthe United States Representative of Georgia's FifthCongressional District, which includes the entire cityof Atlanta, Georgia and parts of Fulton, DeKalb andClayton counties.' He has served in this capacitysince January 1987. Congressman Lewis has acontinued interest in the development and protectionof laws that guard against racial discrimination andpromote social and political equality for allAmericans.

Today, political historians and constitutionalscholars acknowledge that the main impetus forPresident Lyndon Johnson submitting the VotingRights Act of 1965 to Congress on March 15, 1965,and its passage by both Houses of Congress a merefive months later, was the brutal attacks onnonviolent civil rights marchers on the EdmundPettus fridge in Selma, Alabama. CongressmanLewis was one of the marchers on that day and, likemany of his fellow nonviolent civil rightsdemonstrators, was beaten with bullwhips, chokedwith toxic tear gas, and nearly trampled by horsessimply because he wished to exercise hisconstitutional right to vote. In submitting this brief,Congressman Lewis hopes to attest personally to the

1 Pursuant to Supreme Court Rule 37, this brief is filedwith the written consent of all parties. The parties' consentletters are on file with the Court. This brief has not beenauthored, either in whole or in part, by counsel for any party,and no person or entity, other than amicus curiae or theircounsel has made a monetary contribution to the preparationor submission of this brief.

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high price many paid for the enactment of the VotingRights Act and the still higher cost we might yetbear if we prematurely discard one of the most vitaltools of our democracy.

SUMMARY OF ARGUMENT

Fifty years ago, "at the height of the civilrights movement, when America itself felt as if itmight burst at the seams," Congressman John Lewisand young men and women of his generation puttheir bodies in the path of armed troopers mountedon horses and club-wielding mobs yelling for murder,in order to secure the right to vote for all Americans.John Lewis, Walking with the Wind: A Memoir of theMovement xvii (1998). Years and months of protestsculminated in a bloody Sunday afternoon in March1965 when Alabama state troopers charged througha line of peaceful marchers led by CongressmanLewis and fractured his skull with a club. TheVoting Rights Act of 1965 was the result of, andremains a testament to, their sacrifice. VotingRights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445(codified at 42 U.S.C. § 1973 et seq.) (VRA or "theAct").

No statutory enactment has been moreimportant in combating minoritydisenfranchisement and advancing voting rights forall Americans than the VRA. If, as the late PresidentRonald Reagan once declared, the right to vote is"the crown jewel of American liberties," PresidentRonald Reagan, Remarks on Signing the VotingRights Act Amendments of 1982 (June 29, 1982), theVRA made this crown jewel not just the prized

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possession of a fortunate few but the birthright of allAmericans. The VRA in general, and thepreclearance provisions of Section 5 in particular,helped break the back of Jim Crow segregation,made a place at the table of civic and political life formillions of Americans, and moved us closer to thegoal of a "more perfect union." U.S. Const. pmbl.

And yet, as vital to American democracy asthe VRA is, it has always endured intense criticism.Through the years, covered jurisdictions insistedwith great sincerity, as Shelby County does today,that the Act's preclearance provisions were no longerneeded, maintaining paradoxically on the one handthat the Act is an unwarranted abrogation of stateauthority by the federal government, and on theother hand that the Act has succeeded in doing somuch good that covered jurisdictions should berelieved from the "burdens" of preclearance. Brieffor Petitioner at 23-28.

At the heart of the argument against Section 5of the VRA lies the unfounded belief that our historyof voting rights has been one of consistent progress,that we have now reached the point where equalvoting rights are guaranteed to all Americans, andthat eliminating Section 5 as a tool of federalenforcement will not cause us to slide back. Id. at19. But the fact is, a century before CongressmanLewis was nearly murdered on the Edmund PettusBridge for claiming the right to vote, his great-great-grandfather was among the first generation offormer slaves to vote in Alabama. See generallyFinding Your Roots: John Lewis and CoryBooker (PBS 2012). The fact that the Congressman

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had to fight to regain a right his former slaveancestors had exercised is living proof of the dangerof this claim of ever-forward progress.

Today, our electoral portrait remains stainedwith the blight of racial discrimination. In 2006,after careful review of a record in excess of 15,000pages, Congress acted on the continuing need for theVRA. Congress observed that mechanisms ofminority voter suppression continue to be utilized incovered jurisdictions. H. Rep. No. 109-478, at 2(2006). Unlike the blatant voter suppressionmechanisms employed in the past, today'smechanisms manifest themselves more subtly andconsist of a hazardous mix of old and new tactics. Id.at 21. What is clear, however, is that thesemechanisms continue to suppress, dilute, andinfringe upon minorities' constitutional right to vote.Id. Petitioner's misguided attempt to cast doubt onthe constitutionality of Section 5 is simply notsupported by the extensive record of electoraldiscrimination in covered jurisdictions beforeCongress in 2006, nor that which the country sawleading up to the 2012 election.

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ARGUMENT

L The History of Voting Rights In AmericaHas Been One of RecurringRetrenchment and ReconstructionRather than Uninterrupted andContinuous Progress.

A. Young Men and Women Risked andSometimes Gave Their LivesDuring The Civil Rights Movementto Secure the Right to Vote for AllAmericans.

Though often neglected in the usual narrativeof judicial opinions, the story of the VRA is the storyof young men and women of all races, economiccircumstances, and religious backgrounds whorisked their lives to create a non-violent socialmovement to overturn segregation in the Jim CrowSouth, and to ensure political participation for allthroughout the United States. The years, days, andmoments of the movement were made of boycotts,sit-ins, freedom rides, jail marches, fire hoses,literacy tests, billy clubs, poll taxes, tear gas,burning crosses, lynchings in the night, churchbombings, and drive-by murders. Lewis, at 239-47.

In June 1964, the Student Non-ViolentCoordinating Committee (SNCC) began a votingcampaign in Mississippi, where due to the state'sJim Crow voting practices only 5% of eligible AfricanAmericans were registered to vote. Id. at 241-62.The aim of what came to be known as "FreedomSummer" was to integrate the Mississippi

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Delegation of the 1964 Democratic NationalConvention by educating and organizing African-American voters across the state, and to solicit theirsupport for the Mississippi Freedom DemocraticParty. Id.

As chairman of SNCC, Congressman Lewishelped plan and mobilize Freedom Summer. Yearsprior, he worked to register voters in Selma,Alabama. At that time in Alabama, only 1% ofvoting-age African Americans was registered to vote,state troopers used cattle prods to corral protestors,and crosses were burned in sixty-four of the state'seighty-two counties. Id. at 229-31, 233-37. InMississippi, by the end of Freedom Summer,activists had endured more than a thousand arrests,thirty-five shootings, more than thirty churchburnings, and just as many bombings. Id. at 274.

On March 7, 1965, nearly 600 people,including women and children wearing their Sundaychurch outfits, gathered at Brown's Chapel AfricanMethodist Episcopal Church to march fifty-fourmiles from Selma to Montgomery to protest thekilling of one of their own: Jimmy Lee Jackson, atwenty-six year old Army veteran and voting rightsworker shot by an Alabama state trooper as he triedto protect his mother during a voting rights protest.Id. at 327-28. With Congressman Lewis leading theway, they marched "two abreast, in a pair of linesthat stretched for several blocks .... At the farend, bringing up the rear, rolled four slow-movingambulances." Id. at 337. The march was peaceful,"somber and subdued, almost like a funerealprocession." Id. at 338. "There were no big names

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up front, no celebrities. This was just plain folksmoving through the streets of Selma." Id.

And then, the marchers reached the EdmundPettus Bridge, carrying U.S. Highway 80 across theAlabama River, where on the other side waited forthem "a sea of blue-helmeted, blue-uniformedAlabama state troopers" backed by "several dozenmore armed men .. . some on horseback ... manycarrying clubs the size of baseball bats." Id. at 338-39. As the marchers crested the top of the bridge,the trooper in charge ordered them to disperse. Id.at 339. When they knelt to pray, troopers anddeputized citizens charged and, with the cries ofrebel yells and "Get 'em! Get the niggers!", sweptforward "like a human wave, a blur of shirts andbilly clubs and bullwhips" Id. at 340.

Without a word, one trooper swung his clubagainst the left side of Congressman Lewis' head,fracturing his skull. Id. A cloud of tear-gasenveloped the marchers. Bleeding badly and barelyhanging onto consciousness, Congressman Lewistried to stand up from the pavement only to findhimself surrounded by women and children weeping,vomiting while "men on horses [moved] in alldirections, purposely riding over the top of fallenpeople, bringing the animals' hooves down onshoulders, stomachs, and legs." Id. at 341.

In the late afternoon, hours after the attackhad begun, "troopers, possemen, and sheriff'sdeputies pursued the marchers over the mile back tothe neighborhood around Brown Chapel, where theyattacked stragglers in a frenzy," taunting those who

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had taken refuge in the church "for the negroes tocome out." Taylor Branch, At Canaan's Edge:America in the King Years 1965-1968 53 (2006).

That evening, just past 9:30 p.m., ABCTelevision cut into its Sunday night movie - apremiere broadcast of Stanley Kramer's Judgment atNuremberg, a film about Nazi racism - with "aspecial bulletin," showing to the entire countryfifteen minutes of film footage of the attack on theEdmund Pettus Bridge. Id. at 55.

Eight days later, President Johnson addressedthe American people: "I speak tonight for the dignityof man and for the destiny of democracy. At times,history and fate meet at a single time, in a singleplace to shape a turning point in man's unendingsearch for freedom .... So it was last week inSelma." President Lyndon B. Johnson, SpecialMessage to the Congress: The American Promise(Mar. 15, 1965). The President ended by calling onCongress to enact the Voting Rights Act, which it didon August 6, 1965.

B. A Century Before the CongressmanWas Nearly Murdered for Trying toExercise The Right to Vote, HisGreat-Great-Grandfather FreelyVoted During Reconstruction.

In 2009, Congressman Lewis participated asamicus curiae when this Court again considered theconstitutionality of Section 5 in Northwest AustinMunicipal Utility District Number One v. Holder.Brief for the Hon. Congressman John Lewis as

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Amicus Curiae Supporting Appellant, Nw. AustinMun. Util. Dist. No. One v. Holder, 557 U.S. 193(2009). He explained that "the danger of acceptingthe argument that we have made so much progressthat we no longer need the very tool that made allthat progress possible is that we will forget one ofthe most important lessons history has to teach us,namely: that revolutions and advances in popularrights and democratic rights can be reversed; thathistory can move backward .. .. " Id. at 10-11. Atthe time, unbeknownst to Congressman Lewis, hisfamily history was proof "that enormous gains can belost and jeopardized, eroded, or diluted, andabridged in spite of the enormous cost that thoseadvances have made." Id. at 11.

At the conclusion of the Civil War, a centuryprior to Bloody Sunday and the Edmund PettusBridge attack, Tobias and Elizabeth Carter,Congressman Lewis' great-great-grandparents,exercised-the full rights and privileges of citizenship.Both former slaves, they married soon after theEmancipation Proclamation, bought land and settledin rural Alabama. Congressman Lewis' great-great-grandfather was part of the first generation offormer slaves to register and vote in Alabama. Seegenerally Finding Your Roots: John Lewis and CoryBooker.

In many ways, the life of full citizenshipCongressman Lewis' great-great-grandfather ledduring Reconstruction was unique. For a shortwhile immediately following their emancipation,African Americans in large numbers throughout the

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South were able to participate in the Americanpolitical system.

Immediately after Emancipation, AfricanAmericans in Alabama "began acting likeindependent men and women." Howard Zinn, APeople's History of the United States 195 (5th ed.2003). Former slaves, who had lived for generationsunder the control of white slave masters, who werenot permitted to learn to read, who could not controlthe destiny of their own families and who certainlycould not vote, were beginning to participate in civiclife in unprecedented ways. In 1868, 700,000African Americans, mostly freed slaves, voted for thefirst time in Ulysses Grant's presidential election.Id. at 194. Newly freed African-American men wereelected to state legislatures in former ConfederateStates. In South Carolina, African Americans werethe majority in the lower house. Id. at 195. By1880, "African-Americans were an absolute majorityin Louisiana, Mississippi, and South Carolina, andwere over 40% of the population in Alabama,Florida, Georgia and Virginia." Gabriel J. Chin &Randy Wagner, The Tyranny of the Minority: JimCrow and the Counter-Majoritarian Difficulty, 43Harv. C.R.-C.L. L. Rev. 65, 66 (2008). By 1898,Mississippi had 190,000 African-American votersand only 69,000 white voters. Williams v.Mississippi, 170 U.S. 213, 215 (1898). At the federallevel, in 1869, Hiram Rhoades Revels and BlancheBruce, two African Americans, one a former slave,were elected to the United States Senate, along withtwenty African-American Congressmen. Zinn, at195.

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Congress passed the Fifteenth Amendment onFebruary 26, 1869, enfranchising more than amillion African-American men who had been slavesonly a decade earlier. Alexander Keyssar, The Rightto Vote: The Contested History of Democracy in theUnited States 80, 82 (2d ed. 2009). With theratification of the Fifteenth Amendment, the words"right to vote" were written into the U.S.Constitution for the first time, "announcing a new,active role for the federal government in definingdemocracy." Id. at 82-83.

This progress was not the natural trajectory ofemancipation, nor was it coincidental; it was thedirect result of the federal government's presencethroughout the southern United States. Once thatfederal presence was removed, the enormouspolitical, social and economic progress was wipedaway and would not be regained for almost acentury.

By late 1870, all the former Confederatestates had been readmitted to the Union and mostwere controlled by the Republican Party, dueprimarily to the support of African-American voters.The heavily disputed presidential election of 1876ended in a compromise that resulted in troops beingwithdrawn from the South in 1877, signifying theformal end of Reconstruction. During floor debateson the Civil Rights Act of 1871, African-Americanrepresentative Robert B. Elliot reminded his fellowlegislators that, "the declared purpose [of theDemocratic party of the South is] to defeat the ballotwith the bullet and other coercive means .... "Cong. Globe, 42nd Cong. 1st Sess. 389-92 (1871).

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His prediction came to pass. Democrats in the Southconvened state constitutional conventions with theexplicit purpose to disenfranchise AfricanAmericans. Keyssar at 84-85. In the period after1878, in a deliberate effort to disenfranchise thepotentially powerful voting bloc of former slaves,southern states like Alabama, Georgia, Mississippiand Louisiana enacted literacy tests, grandfatherclauses, poll taxes and other unfair voterregistration practices. Id. at 89-91. By 1880, whiteDemocrats in the South had regained control overstate and local governments and the number ofsouthern African-American legislators felldramatically. Id. at 86.

Thus, it is inaccurate to say, as has sometimesbeen suggested when recounting the history ofvoting rights in this country, that after a century ofcongressional inaction and failure, the VRA servedas the starting point of effective federal participationto enforce the Fifteenth Amendment. Rather, thenarrative of voting rights, as evidenced by the storyof Congressman Lewis' own ancestors, is one of acycle of retrenchment and reconstruction. Theapproximately twenty-year period between 1866 and1880 was a brief moment of reform. Among otherthings, the Civil Rights Act of 1866, 14 Stat. 27(1866), the Civil Rights Act of 1870 (TheEnforcement Act), 16 Stat. 140 (1870), and CivilRights Act of 1871, 17 Stat. 13 (1871), establishedrobust federal enforcement of constitutional rightsfor all Americans by establishing civil and criminalpenalties for denying African Americans the right tovote and providing for federal troops to patrol pollsin the South.

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If, by 1880, federal enforcement of votingrights began a period of relative retrenchment, withall due respect, it must be acknowledged that, evenwhile striking down some of the most blatant formsof voter disenfranchisement, 2 this Court's expansivereading of state sovereignty also contributed to aweakening of federal involvement in voting rightsenforcement, the end of Reconstruction, and thepolitical disempowerment of African Americans. SeeGiles v. Teasley, 193 U.S. 146 (1904); Giles v. Harris,189 U.S. 475 (1903); Williams v. Mississippi, 170U.S. 213 (1889); United States v. Cruikshank, 92U.S. 542 (1876); and United States v. Reese, 92 U.S.214 (1875).

C. Congressman Lewis' Public ServiceCareer Has Been Devoted to theProposition that Democracy Is Nota State but an Act that RequiresContinued Vigilance to Ensure aFair and Free Democracy.

This brief history is not to simply revisit apast we all know too well, but to illustrate that"[d]emocracy is not a state. It is an act. It requiresthe continued vigilance of us all to ensure that wecontinue to create an ever more fair, more freedemocracy." Press Release, John Lewis, On

2 See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960);Terry v. Adams, 345 U.S 461 (1953); Smith v. Allwright, 321U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932); Lane v.Wilson, 307 U.S. 268 (1939); Nixon v. Herndon, 273 U.S. 536(1927); Myers v. Anderson, 238 U.S. 368 (1915); Guinn v.United States, 238 U.S. 347 (1915); Neal v. Delaware, 103 U.S.370 (1880).

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Anniversary of Bloody Sunday, Rep. John LewisCites Current Voting Rights Struggle (Mar. 8, 2012).Since first being elected to the House ofRepresentatives in 1986, Congressman Lewis hasdedicated much of his twenty-seven-year politicalcareer to the preservation of voting rights for allAmericans. Among other things, he has introducedbills designed to expand access to the polls, such asthe Voter Empowerment Act of 2013, H.R. 12, 113thCong. (2013) and the Voting Rights of HomelessCitizens Act of 1997, H.R. 74, 105th Cong. (1997).He has also introduced and co-sponsored manyHouse resolutions to commemorate the events andfigures of the Civil Rights movement and to drawattention to threats against voting rights. He hasdone this because he believes that "[t]he vote is themost powerful, nonviolent tool that our citizens havein a democratic society, and [that]nothing ... should interfere with the right of everycitizen to vote and have their vote count."Congressman John Lewis, 40th Anniversary of theVoting Rights Act (July 28, 2005).

When Congress reauthorized Section 5 in1970, 1975 and 1982, Congressman Lewis was notyet elected to federal office. But during the 2006reauthorization hearings, he defended the landmarklegislation. During the House debate, CongressmanLewis implored his colleagues to reject all fourproposed amendments to Section 5, saying, in part:

Yes, we have made some progress. Wehave come a distance. We are no longermet with bullwhips, fire hoses, andviolence when we attempt to register

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and vote. But the sad fact is, the sadtruth is discrimination still exists, andthat is why we still need the VotingRights Act. And we must not go back tothe dark [past].

We cannot separate the debate todayfrom our history and the past we havetraveled. When we marched fromSelma to Montgomery in 1965, it wasdangerous. It was a matter of life anddeath. I was beaten, I had a concussionat the bridge. I almost died. I gave alittle blood, but some of my colleaguesgave their very lives.

152 Cong. Rec. H5164 (daily ed. July 13, 2006)(statement of Rep. Lewis).

Today, 150 years after his great-great-grandfather cast one of the first African-Americanvotes in our country, and nearly fifty years after hismarch across the Edmund Pettus Bridge,Congressman Lewis continues his life-long fight toensure that all American citizens are able to exercisetheir right to vote, regardless of their race. TheVoting Rights Act is as relevant and necessary todayas it was upon its passage nearly fifty years ago.

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II. Section 5 of the Voting Rights ActRemains Crucial to Protect the Rights ofAll Americans to Participate in OurElectoral System Free from RacialDiscrimination.

Petitioner and its amici contend that Congresserred in its determination that Section 5 of the VRAis still necessary in light of the progress that hasbeen made. The crux of their contention rests on thefollowing conclusion: Section 5 of the VRA works.However, the VRA's achievements do not render itirrelevant; to the contrary, the Act's recentachievements illustrate its continuing relevance in asociety where voting discrimination remains verymuch a reality.

The VRA's success is remarkable andundeniable. Indeed, its enactment was a turningpoint in "the struggle to end discriminatorytreatment of minorities who seek to exercise one ofthe most fundamental rights of our citizens: theright to vote." Bartlett v. Strickland, 556 U.S. 1, 10(2009). In the nearly five decades since the Act'spassage, minority voters have garnered increasingpolitical power. While considerable progress hasbeen made, the VRA's goal of bringing to life thepromise of the Fifteenth Amendment has not beenfully realized. Barriers to equal politicalparticipation persist; minority citizens are stilldenied access to the polls and have had to strugglethrough increasingly ingenious discriminatoryroadblocks. That the Act has begun to cure themalaise of voting discrimination does not render itsmost powerful tonic superfluous. The acknowledged

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success of the VRA is not proof that Section 5'susefulness has expired. In fact, it is evidence thatSection 5's powerful medicine is working and needsto continue.

A. The Substantial and PersistentElectoral Discrimination inGeorgia is Indicative of theContinuing Need for Section 5.

Although there are no more literacy tests andgrandfather clauses, today we see a new generationof tools being employed across the country:discriminatory redistricting and annexation plans,voter identification and verification laws, at-largeelection schemes, unexpected re-registrationrequirements, sudden polling place changes, and thelast minute addition of new rules for candidatequalification. All of these methods are used todiscriminate against minorities and have led to over700 Section 5 preclearance objections by the UnitedStates Department of Justice (DOJ) between 1982and 2006. H.R. Rep. No. 109-478, at 22 (2006).

Since Section 5's reauthorization in 1982,Congressman Lewis' state of Georgia has received analarming ninety-one preclearance objection lettersfrom the DOJ, id. at 37, even though the state'sGovernor insists that Georgia should be relieved ofSection 5's preclearance provisions, Brief for GeorgiaGovernor Sonny Perdue as Amicus CuriaeSupporting Appellants, Nw. Austin Mun. Util. Dist.No. One v. Holder, 557 U.S. 193 (2009). Here are afew examples:

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In 2002, a state court judge sitting bydesignation as Superintendent of Elections ofRandolph County, Georgia, issued an opinion thatHenry Cook, an African-American member of theRandolph County Board of Education was a residentof District 5, the majority African-American districtfrom which he had been elected. Letter from Wan J.Kim, Assistant Attorney Gen., U.S. Dep't of Justice,to Tommy Coleman, Esq. (Sept. 12, 2006). In 2006,however, the County Board of Registrars, all ofwhose members were white, removed Cook fromDistrict 5 and reassigned him to District 4, amajority white district. Id. Given the history ofracial bloc voting in Randolph County, Cook wouldcertainly have been defeated had he run forreelection in District 4. Id. Randolph Countyrefused to submit Cook's reassignment forpreclearance under Section 5, even though itconstituted a change in voting. Id. The Board ofRegistrars then submitted the change forpreclearance, and the DOJ objected. Id. The DOJcited the absence of any intervening change in factor law since the 2002 decision of the state courtjudge, and ruled that in light of the history ofdiscrimination in voting in Randolph County, theCounty failed to sustain its burden of showing thatthe submitted change lacked a discriminatorypurpose. Id.

In March 2007, Georgia instituted a dataverification system for its voter registration databasethat sought to match information provided by a voterregistration applicant with the informationmaintained by the state's Department of DriverServices and the Social Security Administration.

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Letter from Loretta King, Acting Assistant AttorneyGen., U.S. Dept of Justice, to the Hon. Thurbert E.Baker, Attorney Gen. of Ga. (May 29, 2009) ("KingLetter"). If the applicant's information did notmatch, the applicant would be "flagged" and wouldnot be registered to vote unless and until theapplicant provided additional documentation toprove his citizenship status. Id. Under the previoussystem, applicants seeking to register to vote onlyhad to swear or affirm on the voter registration formthat the information provided, including theircitizenship status, was true. Id. Georgia claimedthat the new verification system was part of itsefforts to implement the requirements of the HelpAmerica Vote Act, 42 U.S.C. § 15301 et seq. Id.Although Georgia is a covered jurisdiction underSection 5, it did not seek preclearance beforeimplementing this new system. Morales v. Handel,No. 1:08-CV-3172, at 22 (N.D. Ga. Oct. 27, 2008).

In- September 2008, Jose Morales, anaturalized U.S. citizen and a Georgia resident,applied to register to vote. Id. at 2-3. Soon after,Morales received a letter from the county registrarinforming him that he was required to providedocumentation verifying his citizenship before beingregistered to vote. Id. at 3. That October, Moralesfiled suit in the U.S. District Court for the NorthernDistrict of Georgia seeking a temporary restrainingorder and a preliminary injunction against theGeorgia Secretary of State under Section 5 of theVRA. Id. at 3-4. A three-judge panel found thatGeorgia violated Section 5 by not seekingpreclearance for the new verification procedure. Id.at 22. Because there was an "imminent" general

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federal election, the court issued a preliminaryinjunction enjoining the secretary of state toundertake remedial action "unless and untilpreclearance is obtained under Section 5." Id. at 23.The court explained that the injunction addressedthe state's "compelling interest in complying withSection 5's mandate to ensure that no eligible voteris denied the right to vote for failure to comply withan unprecleared voting practice." Id. at 26.

In October 2008, prompted by the lawsuit,Georgia finally submitted the new verificationprocess to the DOJ for preclearance. The DOJobjected to the submission, finding that the systemwas "seriously flawed" and subjected adisproportionate number of African-American,Asian, and Hispanic voters to additional anderroneous burdens on the right to register to vote.King Letter at 4. The DOJ noted that becauseGeorgia had implemented the new changes inviolation of Section 5, there was data reflecting theactual results of the state's verification process. Thisdata revealed that the system was inaccurate,resulting in "thousands of citizens who are, in fact,eligible to vote under Georgia law" being improperlyflagged. Id. at 3. Moreover, the impact of theseerrors fell disproportionately on minority voters.More than 60% more African-American applicantswere flagged than whites; Hispanic and Asianapplicants were more than twice as likely to beflagged as white applicants. Id. at 4.

The long journey of Georgia's discriminatorycitizenship verification system demonstrates Section5's continued necessity in two important ways.

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First, Georgia implemented its new system ignoringSection 5's preclearance requirement, providing cleardata that illustrate the policy's actual discriminatoryimpact. Second, the case demonstrates how Section5 provides swift legal recourse even when a statetries to avoid the preclearance process, giving courtsthe authority to quickly enjoin the state fromimplementing the law and to continue that enjoinderuntil the state complies with Section 5. WithoutSection 5, Georgia's flawed system would havecontinued to wrongly flag minority voter registrationapplications just weeks before an election.

B. Recent Increases in MinorityVoting Strength and the Election ofMinority Candidates EngenderedDiscriminatory Reponses inCovered Jurisdictions.

The Voting Rights Act played a direct andpivotal role in the election and reelection of ourcountry's first African-American President. Theelection of Barack Obama in 2008, and his recentreelection in 2012, showcased both the progress theVRA helped to usher in, as well as the continuinganimosity towards minority participation in ourelectoral process, especially in jurisdictions coveredunder Section 5. Amici in support of Petitionerargue that President Obama's election proves thatSection 5 is no longer necessary. Brief for CatoInstitute as Amicus Curiae Supporting Petitioner at10. While there is no doubt that the gains inminority political participation can be largelyattributed to the VRA, the legislative response inmany covered jurisdictions to the 2008 election only

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lend further support to Congress' conclusion in 2006that Section 5 remains vital.

In response to more minority votersparticipating in the political process, six of the ninestates fully covered under Section 5 have passedlegislation in the last two years designed to restrictvoting rights and access to the polls. These lawsharken back to the days of Jim Crow, and remind usall that we have not left the past behind.

When assessing electoral changes, the courtmust consider the "totality of the circumstances."League of United Latin Am. Citizens v. Perry, 548U.S. 399, 401 (2006). This includes a state's historyof voting-related discrimination, the extent to whichvoting is racially polarized, and the extent to whichthe state has used voting practices or proceduresthat tend to enhance the opportunity fordiscrimination against the minority group. Id. Wecannot ignore that the recent changes to votingpractices and procedures were enacted against abackdrop of increasing racial animosity broughtabout by the election of the first African-AmericanPresident. Following President Obama's election,covered jurisdictions were littered with billboards,signs, t-shirts, and bumpers stickers with messagessuch as "I do not support the nigger in the whitehouse" and "don't renig [sic] in 2012." Twoindividuals were removed from the RepublicanNational Convention after throwing nuts at anAfrican American camerawoman and shouting,"[T]his is how we feed the animals." Empty chairs,symbolizing President Obama, were "lynched" inTexas and Virginia.

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Candidates and pundits alike invoked theimage of poor African Americans and Hispanics asinhibiting America's economic recovery, includingNewt Gingrich branding President Obama as "thegreatest food stamp president in history." Thisracially-charged, political rhetoric appeals to thosewhite voters who are primed and listening for subtleracial calls to action. This is "dog whistle" politics,plain and simple.

The country has seen this interplay before. Asracial animosity rises, some elected officials respondby appealing to racist sentiment. When overt racismpermeated society, George Wallace and BarryGoldwater resurrected the double entendre of"states' rights" to oppose the integration ofAlabama's schools and the Civil Rights Act of 1964,disguising their racism as federalism. See JuanWilliams, The 1964 Civil Rights Act-Then andNow, 31 Human Rights 6 (2004). President Nixonappealed. to white racists and anti-civil rights votersby referencing "busing" and "states' rights." SeePresident Richard Nixon, Address to the Nation onEqual Educational Opportunities and School Busing(Mar. 16, 1972).

The continued use of racial appeals in politicalcampaigns is just one additional piece of evidencethat race impacts our political process, making itmore difficult for minority candidates to be electedand for minority voters to have their votes count.

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C. Section 5 of the Voting Rights ActPrevented Electoral DiscriminationAgainst Racial and EthnicMinorities in the 2012 Election.

Leading up to the 2012 election, severalSection 5 covered jurisdictions attempted toimplement new policies and practices that haddiscriminatory effects on minority voters, impedingtheir ability to register, vote, and electrepresentatives of their choice. In several states,Section 5 and its preclearance process served theirpurpose: to prevent the illegal disenfranchisement ofhundreds of thousands of minority voters.

The unprecedented number of minority voterswho participated in the 2012 election has garneredmuch attention in the media. It is a landmark ourcountry should celebrate. But we must alsorecognize that this phenomenon is anaccomplishment of the VRA, with Section 5 playingan important role. An examination of the votingrights cases leading up to the 2012 election revealsthat this historical participation in our democraticprocess was in part the direct result of Section 5'sprotections. Indeed, without Section 5, minorityvoters in several states would have been denied theirright to vote in 2012.

1. Section 5 PreventedDiscriminatory VoterIdentification Laws fromDisenfranchising Minority Votersin the 2012 Election.

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The most widespread legislative effort tocurtail the right to vote leading up to the 2012election was the imposition of stricter documentaryidentification requirements on voters. Section 5'spreclearance requirement prevented theimplementation of discriminatory voteridentification laws in the 2012 general election byshifting the burden from the many voters who mayhave been disenfranchised by these laws, to thestates seeking to implement them. Two coveredjurisdictions-Texas and South Carolina-failed topersuade the DOJ and the U.S. District Court for theDistrict of Columbia that they could implement theirnew voter identification laws prior to the 2012election without discriminating against minorityvoters.

In May 2011, Texas passed Senate Bill 14, S.14, 2011 Leg., 79th Sess. (Tex. 2011) ("SB 14"),amending its voter identification law to eliminate anumber of acceptable forms of identification allowedunder the existing law and instead requiring votersto present a Texas driver's license, militaryidentification, citizenship certificate or passportbefore being allowed to vote. Texas v. Holder, No.12-cv-128, 2012 WL 3743676, *1 (D.D.C. Aug. 30,2012). As a covered jurisdiction under Section 5,Texas was required to submit SB 14 forpreclearance, which it did on July 25, 2011 bysubmission to the Department of Justice. Letterfrom Thomas E. Perez, Assistant Attorney Gen., U.S.Dep't of Justice, to Keith Ingram, Dir. of Elections,Office of the Tex. Sec'y of State (Mar. 12, 2012).

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On March 12, 2012, the Attorney Generalobjected to Texas' preclearance submission findingthat the state had failed to meets its burden that thenew law would not have a retrogressive effect on thestate's minority population. Id. Specifically, datasubmitted by Texas in support of its submissionshowed that over 600,000 registered voters in thestate did not have the identification required by thenew law, a disproportionate share of whom wereHispanic. Id. The data indicated that a Hispanicvoter in Texas was 46.5% more likely than a non-Hispanic voter to lack the new forms ofidentification. Id.

In January 2012, after being deniedpreclearance by the DOJ, Texas sought preclearancefor its new voter identification law from the U.S.District Court for the District of Columbia. Texas,2012 WL 3743676, at *1. After an expedited trial,the district court concluded, "record evidencesuggests that SB 14, if implemented,would... likely 'lead to a retrogression in theposition of racial minorities with respect to theireffective exercise of the electoral franchise."' Id. at*26 (quoting Beer v. United States, 425 U.S. 130, 141(1976)). Consequently, the court held that Texas'voter identification law violated Section 5 and couldnot be enforced for the 2012 election. Id. at *26, 32.

The swift rejection of Texas' voteridentification law by both the DOJ and the districtcourt prevented one of the most restrictive voteridentification laws in the country from beingimplemented in a way that would have blocked adisproportionate number of minority voters from the

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polls on Election Day 2012. Section 5's preclearanceprocess served its purpose-providing an efficientand effective means to prevent the rollback ofminority voting rights.

In May 2011, South Carolina, also a coveredjurisdiction, passed Act R54 which amended SouthCarolina's voter identification law to narrow theforms of permitted voter identification. R54, 119thGen. Assemb., Reg. Sess. (S.C. 2011-2012). Similarto Texas, the South Carolina law required voters topresent a South Carolina driver's license, motorvehicle photo identification, passport, militaryidentification card or a photo voter registration card.S.C. Code Ann. § 7-13-710(A) (2011). The prior lawdid not require photo identification to vote, allowingvoters to present a non-photo voter identificationcard. Id. But the South Carolina amendmentdiffered from Texas' law in that it allowed voterswith a "reasonable impediment" that prevents themfrom having one of the required forms of voteridentification to sign an affidavit confirming theiridentity and explaining why they do not have one ofthe required forms of identification. S.C. Code Ann.§ 7-13-710 (D)(1)(b) (2011).

On December 23, 2011, the DOJ deniedpreclearance for South Carolina's new voteridentification law, finding that the new law wouldadversely affect minority voters. Letter fromThomas E. Perez, Assistant Attorney Gen., U.S.Dep't of Justice, to C. Havird Jones, Jr., AssistantDeputy Attorney Gen. of S.C. (Dec. 23, 2011). Datapresented by the state demonstrated that minorityvoters were nearly 20% more likely to lack motor

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vehicle photo identification than white registeredvoters. Id. at 2. The DOJ also determined that the"reasonable impediment" exemption would notmitigate the law's discriminatory effects because itwas ambiguous and could be applied in adiscriminatory way. Id. at 3.

South Carolina then filed for preclearance inthe U.S. District Court for the District of Columbia.South Carolina u. United States, No. 12-203, 2012WL 4814094 (D.D.C. Oct. 10, 2012). The courtdecided the case on October 10, 2012, less than onemonth before the general election. Like the DOJ,the court concluded that non-white voters were morelikely than white voters to not have one of therequired forms of voter identification, but found thatthe law's "sweeping reasonable impedimentexemption eliminates any disproportionate effect ormaterial burden that South Carolina's voter ID lawotherwise might have caused." Id. at *9. Inreaching its conclusion, the court was careful toexplain that a broad interpretation and applicationof the exemption was critical to assuring the law'slegality. Id. at *19 (stating, "this law, without thereasonable impediment provision, could havediscriminatory effects and impose material burdenson African-American voters .... ").

Importantly, the district court did not preclearthe law for the 2012 election, finding thatimplementing the law so close to the election createdtoo much of a risk to African-American voters. Id.The court explained, "[b]ecause the voters whocurrently lack qualifying photo ID aredisproportionately African-American, proper and

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smooth functioning of the reasonable impedimentprovision would be vital to avoid unlawful raciallydiscriminatory effect on African-American voters inSouth Carolina in the 2012 election." Id.

The preclearance of South Carolina's voteridentification law provides an important example ofthe critical role Section 5 continues to play inprotecting voting rights. First, the data sharedduring the preclearance process clearlydemonstrated how a facially neutral law could havea dramatic discriminatory effect on minority voters.Second, the preclearance process provided anopportunity for the federal court to instruct the statethat the reasonable impediment exemption must beexpansively implemented in order to prevent thelaw's potentially discriminatory impact. Third, thecourt put South Carolina on notice, explaining in nouncertain terms that Section 5 would prohibit any adhoc alteration to the implementation of theexemption. And finally, Section 5 prevented the lawfrom going into effect too soon before the 2012election, averting the serious risk of disenfranchisingAfrican American voters.

2. Section 5 Prevented theReduction of Voting Hours in the2012 Election, Assuring MinorityVoters Access to the Polls.

Early voting, or the opportunity for voters tocast their ballots in-person before Election Day, waswidely utilized in a number of states in the 2012election. Florida implemented early, in-personvoting in 2004, as part of its post-2000 election

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reform. Minority voters, who often have greatertransportation and occupational challenges gettingto the polls, have participated in early voting inlarge numbers. Florida v. United States, No. 11-1428, 2012 WL 3538298, at *29 (D.D.C. Aug. 16,2012); Michael C. Herron & Daniel E. Smith, EarlyVoting in Florida in the Aftermath of House Bill1355 10 (Working Paper, Jan. 10, 2013). In 2012,Section 5 prevented an attempt to cut nearly half thenumber of days allowed for early voting in Florida.

In 2011, the Florida legislature passed anomnibus election administration bill making someeighty changes to the state election law, includingone that decreased the number of days allowed forearly in-person voting. Florida, 2012 WL 3538298,at *3. Because five counties in Florida are coveredjurisdictions under Section 5, Florida submitted thechange to the early voting law to United StatesDistrict Court for the District of Columbia forpreclearance. Id. at *2.

Under its prior law, Florida permitted early,in-person voting for twelve days over a fourteen-dayperiod beginning on the fifteenth day before anelection and ending on the second day before theelection. Fla. Stat. § 101.657(d) (2010). The new lawamended the number of days, the number of hoursand the weekend times that early voting was offeredin the state, decreasing the period from twelve daysto eight, and eliminating the last Sunday before theelection. Fla. Stat. § 101.657(d) (2011); Florida,2012 WL 3538298, at *5-6.

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The district court denied preclearance,concluding that minority voters would bedisproportionately affected by the decrease in earlyvoting days. Florida, 2012 WL 3538298, at *23. Theevidence presented at trial showed that in the 2008general election, more than half of African-Americanvoters in Florida used early in-person voting-twicethe rate of white voters. Id. at *17. This trend hascontinued since 2008; African Americans haveconsistently used early in-person voting in Florida atrates that exceed those of white voters. Id. at *21-22.

Consequently, the court determined that thedecrease in early voting days had a "retrogressiveeffect with respect to African-American voters'effective exercise of the electoral franchise" andcould not be precleared under Section 5. Id. at *23.

For the 2012 general election, only thirty-twoof Florida's sixty-seven counties, including the fivecounties covered by Section 5, offered the maximumninety-six hours of early voting hours permittedunder the new law. Minority voters again tookadvantage of the extra time to cast their votes.While African Americans made up less than 14% ofFlorida's registered voters in 2012, they made upmore than 22% of the early voter electorate on eachday of the 2012 early voting period. Herron &Smith, at 11. However, because there was areduction in the total number of early voting hoursand days in 2012, including the elimination of theSunday immediately before Election Day, there werefewer opportunities for minorities to vote early. InMiami-Dade and Palm Beach counties, voters stood

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in line to cast early votes for more than five hoursduring the weekend before Election Day. Id. at 20.In those two counties, African Americans made uponly 16.7% of registered voters, but accounted for43.8% of the early voters on Sunday, November 4,2012. Id. at 21. The data tell the story. There issimply no question that without Section 5, adisproportionate number of minority voters inFlorida would have been deterred from exercisingtheir right to vote in 2012.

3. Section 5 Prevented theDiscriminatory Dilution ofMinority Voting Strength in the2012 Election.

In addition to preventing discriminatoryvoting laws from taking effect, Section 5 alsoprevented discriminatory legislative districts fromdiluting the voting strength of minority communitiesin 2012. After redrawing it legislative districtsfollowing the 2010 Census, Texas soughtpreclearance from the United States District Courtfor the District of Columbia. Texas has a longhistory of attempting to use the redistricting processto weaken the voting strength of minorities. In itsopinion denying preclearance, the district courtnoted, "[i]n the last four decades, Texas has founditself in court every redistricting cycle, and each timeit has lost." Texas v. United States, No. 11-1303,2012 WL 3671924, at *20 (D.D.C. 2012), petition forcert. filed, 81 USLW 3233 (U.S. Oct 19, 2012)(No. 12-496).

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According to the 2010 Census, Texas'population grew by approximately 4.3 million in thepast decade, an increase of more than 20%. Id. at*17. Approximately 89% of this growth was fromnon-white minorities: Hispanics comprised 65% ofthe increase, African Americans 13.4%, and AsianAmericans 10.1%. Id. As a result of this increase,the Texas Congressional delegation grew fromthirty-two to thirty-six members, the largest growthever in a jurisdiction fully covered by Section 5. Id.Prompted by this population growth, the Texas StateLegislature drew and enacted new legislativedistricts. Despite the substantial increase in theminority population, the enacted Congressionaldistricts did not include a single new minoritydistrict. Id.

After an expedited trial in the summer of2012, the District Court denied preclearance, findingsufficient evidence that the proposed U.S.Congressional and State House plans would have aretrogressive effect on minority voters, and that theU.S. Congressional and State Senate plans wereenacted with a discriminatory purpose. Id. at *37.The court found that under the enacted plan,proportional representation would yield fourteennew minority ability districts, but that therecontinued to be only the ten ability districts that hadexisted under the former plan prior to the newCensus figures, creating a "representation gap" inthe proposed plan of four districts. Id. at *18.

Moreover, evidence revealed that "substantialsurgery" was performed on the Congressionaldistricts of four African-American and one Hispanic

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members of Congress, removing each incumbentmember's district office from the district. Id. at *19.Although Texas argued that this was the result ofpartisan politics and not racial discrimination, thecourt noted that, "[n]o such surgery was performedon the districts of Anglo incumbents. In fact, everyAnglo member of Congress retained his or herdistrict office." Id. at *20.

Due to the delayed resolution of preclearance,a Texas district court drew interim maps for the2012 election. Perez v. Perry, 835 F. Supp.2d 209(W.D. Tex. 2011), vacated and remanded, 132 S.Ct.934 (2012). After an appeal to United StatesSupreme Court, the Texas federal court redrew themaps in February 2012, putting in place the districtsfor the 2012 election. Perez v. Texas, No. 11-CA-360, 2012 WL 4094933, at *1-2 (W.D. Tex. Feb. 28,2012). Texas voters elected nine new members ofCongress in 2012; four Hispanic and one African-American.

The Section 5 preclearance process preventeddistricts that had both the purpose and effect ofdiscriminating against minority voters from going into effect in Texas, and created the opportunity formore equitable districts to be put in place in time forthe 2012 election. As a result, minority voters inTexas were able to elect representatives of theirchoice.

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4. Section 2 of the Voting Rights ActWould Not Have Been as Effectiveas Section 5 in PreventingDisenfranchisement of MinorityVoters During the 2012Presidential Election.

The efficacy of the VRA's strong medicine islargely attributable to Section 5. Unlike Section 2,which is reactive and places the burden onindividual plaintiffs to prove that a practice has adiscriminatory effect, South Carolina v. Katzenbach,383 U.S. 301, 327-28 (1966), Section 5 is preemptiveand acts as a barricade to ensure that discriminatorychanges are not put into effect. In so doing, Section5 shifts the burden onto covered jurisdictions toestablish prior to implementation that a proposedvoting change has neither a discriminatory effect norpurpose. By addressing the issue at the earliestpossible stage, Section 5 decreases the cost and timeassociated with litigation. This anticipatoryapproach ensures that voting rights are notinfringed upon in the first instance. Accordingly,Section 5 has played a significant role in deterringvoting discrimination and remains vital to theprotection of equal political participation. Indeed,the 2012 national election provides clear evidencethat Section 5 remains an essential tool forprotecting the right to vote in our country.

Without Section 5, voters' only recourse topursue voting rights violations would be Section 2 ofthe VRA. Section 2's protections are insufficient toensure minority access to the franchise. Section 2litigation is time consuming and expensive, and the

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discriminatory impact of the challenged policy orpractice remains in effect while the litigationproceeds. To Examine the Impact and Effectivenessof the Voting Rights Act: Hearing Before theSubcomm. on the Constitution of the Comm. on theJudiciary H.R., 109th Cong. 58 (2005) ("VRAHearing"). Voters seeking to challenge election lawsunder Section 2 must hire an attorney, engage inextensive fact-gathering, hire experts, and pay costsassociated with filing a lawsuit, which can costmillions of dollars and take years to achieve. Id. at78. Furthermore, state actors are entitled to anadditional benefit under Section 2 because theburden of proving discrimination lies with theprivate plaintiff. Id. at 79-80. As this Court hasexplained, in designing Section 5, Congress "foundthat case-by-case litigation was inadequate tocombat widespread and persistent discrimination invoting, because of the inordinate amount of time andenergy required to overcome the obstructionisttactics invariably encountered in these lawsuits."Katzenbach, 383 U.S. at 328.

Significantly, discriminatory laws remain ineffect throughout the Section 2 litigation, giving thestate actor all the benefits of elected office even if thediscriminatory practice is ruled unconstitutional.VRA Hearing at 43. Section 5 prohibits thediscriminator from benefiting from discriminatorypractices, and also prevents the election ofrepresentatives based on discriminatory practices.

All of these concerns would have come to bearin challenging the discriminatory practices in Texas,South Carolina, Florida, and Georgia. The voters

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would have borne the burden of finding lawyers,marshaling evidence, hiring experts, and all theother expensive and time consuming complicationsof litigation. Election Day 2012 would be longpassed, and untold hundreds of thousands of voterswould have been wrongly denied their right to vote,officials elected under discriminatory practiceswould be comfortably settled in their offices andenacting new policies before the court could rule onthe challenged practices.

Without Section 5, Hispanic and African-American voters in Texas would have been turnedaway from the polls on Election Day because theycould not afford one of the few acceptable forms ofphoto identification required by SB 14. WithoutSection 5, African-American and Hispanic voters inSouth Carolina would have been confronted at thepolls with new and complex identificationrequirements, resulting in confusion, confrontation,and frustration. Without Section 5, African-American and Hispanic voters in Florida would havearrived at the polls on their day off to exercise theirmost precious right only to find the polls closed andthe doors locked. Without Section 5, Jose Moralesand countless other United States citizens whetherHispanic, Asian, or African-American would havehad their voter registration forms wrongly rejectedby Georgia election officials who questioned theircitizenship simply because of their last name, or acomputer glitch.

Simply put, Section 2 alone cannot secureminority voting rights in covered jurisdictionsbecause pervasive and consistent racial

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discrimination continues to exist. Section 5 remainsa necessary tool to protect the right to vote in ourcountry. "The burden is too heavy-the wrong to ourcitizens is too serious-the damage to our nationalconscience is too great .... " Katzenbach, 383 U.S. at315.

CONCLUSION

For the foregoing reasons, the judgment of theUnited States Court of Appeals for the District ofColumbia Circuit should be affirmed.

Respectfully Submitted,

Aderson B. FrancoisHOWARD UNIVERSITY

SCHOOL OF LAWCIVIL RIGHTS CLINIC2900 Van Ness Street NWWashington, D.C. 20008(202) 806-8065

Deborah N. ArcherCounsel of Record

Tamara C. BelinfantiErika L. Wood

NEW YORK LAW SCHOOLRACIAL JUSTICE PROJECT

185 West BroadwayNew York, NY 10013

(212) 431-2138Deborah.Archer@nyls.edu

JANUARY 2013