project 21 shelby county amicus 0113

7/28/2019 Project 21 Shelby County Amicus 0113

1/35

No. 12-96In the Supreme Court of the United States

SHELBYCOUNTY,ALABAMA,

Petitioner,v.

ERIC H.HOLDER,JR.,ATTORNEYGENERAL, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court ofAppeals for the District of Columbia Circuit

BRIEF FOR PROJECT 21 AS AMICUS CURIAEIN SUPPORT OF PETITIONER

January 2, 2013

ERIKS.JAFFE

(Counsel of Record)

ERIKS.JAFFE,P.C.

5101 34th Street, N.W.

Washington, DC 20008

(202) 237-8165

[email protected]

Counsel for Amicus Curiae


2/35

TABLE OF CONTENTSTable of Contents .......................................................... iTable of Authorities .................................................... iiiInterest ofAmicus Curiae .......................................... 1Summary of Argument ................................................ 2

Argument ..................................................................... 6I. Section 5 Exceeds Congressional Authority

Even Under Alternatives to the BoerneTest. ........................................................................ 6

A. The Necessary and Proper Clause Is Nota Blank Check for Claimed Exercises ofCongressional Enforcement Authority. ........... 8

B. Section 5 Fails to Carry into ExecutionCongresss Power to Enforce the

Fourteenth or Fifteenth Amendments. .......... 13II. Highly Suspect Notions of Second-

Generation Discrimination Provide Poorand Often Perverse Support for Claims ofUnconstitutional Conduct Said to Justifythe Extreme Remedy of Preclearance. ................ 15

A.Vote Dilution Objections, Inquiries, andRelated Matters Are Not Evidence ofUnconstitutional Discrimination. .................. 16


3/35

ii

B.Federal Use of Section 5 to CompelRace-Based Redistricting Demonstratesthat Section 5 Is PerverselyInappropriate to Enforce Prohibitions

Against Racial Discrimination. ...................... 23Conclusion .................................................................. 28


4/35

iii

TABLE OF AUTHORITIESCases

Adarand Constructors, Inc. v. Pea,515 U.S. 200 (1995) .......................................... 24, 26

Austin Municipal Utility District No.

One v. Holder, 557 U.S. 193 (2009) ............... passim

Bartlett v. Strickland, 556 U.S. 1(2009) ........................................................................ 1

Brownv. Board of Education, 347 U.S.483 (1964) ............................................................... 27

City of Boerne v. Flores, 521 U.S. 507(1997) .................................................................... 2, 6

City of Richmond v. J.A.Croson Co.,488 U.S. 469 (1989) ................................................ 26

General Motors Corp. v. Tracy,519 U.S. 278 (1997) ................................................ 12

Georgia v. Ashcroft, 539 U.S. 461(2003) ................................................................ 22, 24

Hirabayashi v. United States,320 U.S. 81 (1943) .................................................. 26

Hirabayashi v. United States, 828

F.2d 591 (CA9 1987) .............................................. 27


5/35

iv

Korematsuv. United States, 323 U.S.214 (1944) ............................................................... 27

Korematsu v. United States,584 F. Supp. 1406 (N.D. Cal. 1984) ....................... 27

McCulloch v. Maryland, 17 U.S.(4 Wheat.) 316 (1819) ..................................... 2, 9, 10

Millerv. Johnson, 515 U.S. 900 (1995) ............... 20, 24

National Fed. Indep. Bus. v. Sebelius,132 S.Ct. 2566 (2012) ............................................. 15

Reno v. Bossier Parish Sch. Bd.,528 U.S. 320 (2000) (Bossier II) .......................... 25

Ricev. Cayetano, 528 U.S. 495 (2000) ...................... 26

Shawv. Reno, 509 U.S. 630 (1993) ............... 18, 24, 26

Shelleyv. Kraemer, 334 U.S. 1 (1948) ...................... 23

South Carolina v. Katzenbach,383 U.S. 301 (1966) ............................................ 6, 13

Tennessee v. Lane, 541 U.S. 509(2004) .............................................................. passim

United States v. DeWitt, 76 U.S. 41(1869) ...................................................................... 11

Watkins v. United States Army,

875 F.2d 699 (CA9 1989),cert. denied, 498 U.S. 957 (1990) ........................... 27


6/35

v

Statutes42 U.S.C. 1973c ..................................................... 25

Pub. L. No. 109-246, 2(b)(4), 120Stat. 577 (2006) ................................................ 16, 21

Other AuthoritiesA Friend to the Union, reprinted in

John Marshalls Defense of

McCulloch v. Maryland 78 (GeraldGunther ed., 1969) ................................................. 11

Gary Lawson & Patricia B. Granger,The Proper Scope of Federal

Power: A Jurisdictional

Interpretation of the Sweeping

Clause, 43 DUKE L.J. 267 (1993) ........................... 10

H.R.REP.NO. 109-478 (2006) .............................. 16, 21


7/35

INTEREST OF AMICUS CURIAE 1Amicus curiaeProject 21, the National Leadership

Network of Black Conservatives, is an initiative ofThe National Center for Public Policy Research topromote the views of African-Americans whose en-trepreneurial spirit, dedication to family, and com-mitment to individual responsibility have not tradi-tionally been echoed by the nations civil rights estab-lishment. The National Center for Public Policy Re-search is a communications and research foundation

supportive of the view that the principles of a freemarket, individual liberty and personal responsibilityprovide the greatest hope for meeting the challengesfacing America in the 21st century. It is a Delaware501(c)(3) corporation.

Project 21 participated as amicuscuriae in North-west Austin Municipal Utility District No. One v.

Holder, 557 U.S. 193 (2009), Bartlett v. Strickland,556 U.S. 1 (2009), and this Terms Fisherv. Universi-ty of Texas at Austin, No. 11-345. Project 21 partici-

pants seek to make America a better place for Afri-can-Americans, and all Americans, to live and work.

1 No counsel for a party authored this brief in whole or inpart, nor did any person or entity, other than amicus or itscounsel, make a monetary contribution intended to fund thepreparation or submission of this brief. This brief is submittedpursuant to the blanket consent letters from all parties, on filewith this Court.


8/35

2

SUMMARY OF ARGUMENT1. Regardless of the standard of review applied in

this case, Section 5 is an improper exercise of Con-gresss enforcement power under either of the rele-vant Reconstruction Amendments. Petitioner and all

judges below evaluated Section 5 using the congru-ence and proportionality standard from City of Boerne v. Flores, 521 U.S. 507, 520 (1997). While itseems likely this Court will apply that test in thiscase as well, some have suggested that a different

test based on McCulloch v. Maryland, 17 U.S. (4Wheat.) 316 (1819), and the Necessary and ProperClause should be applied.

Even under such an alternative standard, howev-er, Congress does not have carte blanche, and mustfashion its legislation in a manner that actually en-forces, or carries into execution, the Reconstruction

Amendments underlying prohibitions against gov-ernment denial or abridgment on account of race ofthe right to vote or government denial of equal pro-

tection of the laws. The test, first set out in McCul-lochv. Marylandand applied in early Voting RightsAct cases, requires enforcing legislation to be directedtowards a legitimate end, use appropriate meansplainly adapted to that end, and to be consistentwith the letter and spirit of the Constitution. McCul-loch, 17 U.S. (4 Wheat.) at 421. That test is not aslenient as some have suggested, particularly where,as here, the legislation at issue is conceded to be insignificant conflict with other important constitution-al provisions and principles. See Northwest AustinMun. Utility Dist. No. One v. Holder, 557 U.S. 193,202-03 (2009).


9/35


10/35

4

vote dilution at the Department of Justice (DOJ) andin Congress itself. Because preclearance procedureshave in fact moved beyond simply blocking intention-al efforts to undermine minority voting and often de-mand affirmative efforts to maximize minority votingstrength through concentration and segregation ofminority voters, they have turned the very concept ofracial discrimination on its head. That approachtaints much of the claimed evidence of ongoing dis-crimination and taints the appropriateness of Section5 as a means of enforcing prohibitions on the verytype of discrimination that it now promotes.

a. Lacking sufficient examples of direct interfer-ence with the right to vote used to support earlier it-erations of the Voting Rights Act, Congress, respond-ents, and the courts below instead rely on so-calledsecond-generation discrimination that, while notblocking minority access to the ballot, is said to re-duce the weightof minority votes. The evidence citedfor such purported racial discrimination includes Sec-tion 2 suits and settlements, DOJ objections to pre-clearance applications and requests for further in-formation regarding such applications, racial blockvoting, and the improved, but still less than propor-tional, numbers of minority office-holders, particular-ly at the state-wide level.

What such types of evidence have in common is notthat they reflect greater racial discrimination by cov-ered jurisdictions the correlation with coverage is,in fact, poor but rather that they reflect racially of-fensive stereotypes and policies applied by the DOJitself. DOJ preclearance objections and informationrequests, for example, are largely related to redis-


11/35

5

tricting, and reflect efforts to increase minority seg-regation into majority-minority districts. That a cov-ered jurisdiction failedto use race to segregate votersis not evidence of unconstitutional racial discrimina-tion it is its precise opposite. That covered jurisdic-tions may succumb to DOJ arm-twisting and accom-modate DOJs racial gerrymandering demands simp-ly shows that Section 5 can be successfully abused,not that the initial application was unconstitutional.Other evidence claimed to show current discrimina-tion likewise is tainted by the distorted policies andnotions surrounding vote dilution, and the raciallystereotyped assumptions underlying those policies.Notions of minority-preferred candidates and racialblock voting an apparent virtue for minority groups,but a vice for non-minorities reflect racial stereo-types about both minority and non-minority votersthat have no proper place in government policy, muchless in legislation that is supposed to combat raciallydiscriminatory conduct.

b. In addition to undermining (and in fact invert-ing) the rationality of much of the current evidence ofdiscrimination used to support Section 5, the factthat Section 5 itself is the vehicle by which DOJ im-plements its racially discriminatory policies demon-strates that it is no longer appropriate legislationfor enforcing prohibitions on government racial dis-crimination. That the federal government is now us-ing its preclearance authority to compel, rather thancombat, racial discrimination illustrates that theremedy exacts too high a cost, is inconsistent with

both the letter and the spirit of the Constitution and


12/35

6

thus is not appropriate legislation to enforce or car-ry into execution the Reconstruction Amendments.

ARGUMENTI. Section 5 Exceeds Congressional Authority

Even Under Alternatives to the Boerne Test.Both the majority and the dissent below applied

the Fourteenth Amendment congruence and propor-tionality test from Boerne, 521 U.S. at 520, in evalu-ating whether Section 5 was a valid exercise of Con-

gresss enforcement power under the ReconstructionAmendments. See Pet. App. 16a (majority below);Pet. App. 70a-71a (Williams, J., dissenting).2 Whilethis Courts opinion in Northwest Austin, 557 U.S. at202 (2009), strongly suggests that is the standardthis Court would apply here, some have suggestedthat a different, and supposedly more lenient, stand-ard should apply.

The government, for example, has suggested a testallowing Congress to employ any rational means of

enforcement, citing South Carolina v. Katzenbach,383 U.S. 301, 324 (1966), and assuming an overlypermissive reading of the Necessary and ProperClause. SeePet. App. 16a (opinion below describinggovernments contention).

Justice Scalia also has suggested dissatisfactionwith the Boerne test. Tennessee v. Lane, 541 U.S.

2Amicus will assume, arguendo, that both the Fourteenth

and Fifteenth Amendments are potentially available to supportSection 5, without taking any position on the dispute overwhether Section 5 must be justified by the Fifteenth Amend-ment alone.


13/35

7

509, 557-65 (2004) (Scalia, J., dissenting). Conclud-ing that this Court has given too expansive a mean-ing to the term enforce in the Fourteenth Amend-ment, he would generally apply a much narrowerscope to that word and hence to Congresss enforce-ment authority. Id. at 558-59. But within that nar-rowed scope, he would apply the Necessary and Prop-er Clause standard from McCulloch rather than themore malleable congruence and proportionality testfrom Boerne. Id. at 565. For enforcement againstunconstitutional racialdiscrimination, however, Jus-tice Scalia would accept existing precedent allowingCongress somewhat greater leeway in enforcing thecentral purposes of the Reconstruction Amendments,with some qualifications:

Thus, principally for reasons ofstare decisis, Ishall henceforth apply the permissive McCul-loch standard to congressional measures de-signed to remedy racial discrimination by theStates. I would not, however, abandon the re-quirement that Congress may impose prophy-lactic 5 legislation only upon those particularStates in which there has been an identifiedhistory of relevant constitutional violations.[Citations and footnote omitted.] I would alsoadhere to the requirement that the prophylac-tic remedy predicated upon such state viola-tions must be directed against the States orstate actors rather than the public at large.[Citation omitted.] And I would not, of course,permit any congressional measures that vio-

late other provisions of the Constitution. Whenthose requirements have been met, however, I


14/35

8

shall leave it to Congress, under constraintsno tighter than those of the Necessary andProper Clause, to decide what measures areappropriate under 5 to prevent or remedy ra-cial discrimination by the States.

Id. at564.

In amicuss view, even assuming application of atest derived from McCulloch, Section 5 still fails toconstitute a valid exercise of Congresss enforcementpower under either of the relevant Reconstruction

Amendments. Cf. Northwest Austin, 557 U.S. at 204(The Acts preclearance requirements and its cover-age formula raise serious constitutional questionsunder either test.)

A. The Necessary and Proper Clause Is Not aBlank Check for Claimed Exercises of Con-gressional Enforcement Authority.

Although the government and Justice Scalia sug-gest that the McCulloch standard under the Neces-

sary and Proper Clause may be more lenient than theBoernestandard in some respects, McCullochand itsprogeny in fact impose genuine restraints on Con-gresss power. The test in McCulloch, though flexible,requires at least that Congresss ends be legitimate,its means be appropriate and plainly adapted tothose ends, and its actions comport with the letterand the spirit of the Constitution.

The Necessary and Proper Clause gives Congressauthority to make all Laws which shall be necessary

and proper for carrying into Execution the foregoingPowers. Art I, sec. 8, cl. 18. To qualify under thisgrant of authority, a law must not merely be needful


15/35

9

or desirable; it must also have as its function carry-ing into Execution the enumerated power being ap-plied. SeeMcCulloch, 17 U.S. (4 Wheat.) at 412.

Here, Congresss enumerated power is the powerto enforce the Fourteenth and Fifteenth Amend-ments by appropriate legislation. U.S. CONST.,

AMEND.XIV, sec. 5 and AMEND. XV, sec. 2. As a prac-tical matter, enforc[ing] the prohibitions of theFourteenth and Fifteenth Amendments is the sameas carrying into Execution those prohibitions, and

hence the two related powers collapse into the sameessential inquiry under McCulloch. Cf. Tennesseev.Lane, 541 U.S. at 559 (The 1860 edition of NoahWebsters American Dictionary of the English Lan-guage, current when the Fourteenth Amendment wasadopted, defined enforce as: To put in execution; tocause to take effect; as, to enforce the laws. Id., at396. See also J. Worcester, DICTIONARY OF THEENGLISH LANGUAGE 484 (1860) (To put in force; tocause to be applied or executed; as, To enforcea law).).

The most essential limitation under the McCullochtest, therefore, is that Congresss legislation must bedirected at implementing or giving effect to the Fif-teenth Amendments prohibition against deni[al] orabridge[ment] by the United States or by any Stateon account of race of the right of citizens of theUnited States to vote, and the Fourteenth Amend-ments prohibition against any State deny[ing] toany person within its jurisdiction the equal protectionof the laws.

To carry a law or power into execution in itsmost basic sense means to provide enforce-


16/35


17/35

11

Now I deny that a law prohibiting the statelegislatures from imposing a land tax would bean appropriate means, or any means what-ever, to be employed in collecting the tax of theUnited States. It is not an instrument to be soemployed. It is not a means plainly adapted,or conducive to[,] the end.

A Friend to the Union, reprinted in John MarshallsDefense of McCulloch v. Maryland 78, 100 (GeraldGunther ed., 1969) (emphasis added); seealsoUnited

States v. DeWitt, 76 U.S. 41, 44 (1869) (rejecting aban on intrastate sales of certain products unsuccess-fully justified as a means to increase demand for oth-er products subject to federal taxation and therebyaid and support and make more effective thepower of laying and collecting taxes).

Distilling the essence of McCulloch as illustratedby the above, legislation will be necessary and properfor enforcing the Fourteenth and Fifteenth Amend-ments if it is:

Directed at the legitimate end of imple-menting the prohibitions contained in thoseAmendments;

Involves appropriate means plainlyadapted to that end;

Those means are not prohibited, but con-sistent with the letter and spirit of the con-stitution.

And, for these purposes, implementing the relevantprohibitions requires something more direct and im-

mediate than merely aiding and supporting them ormaking them more effective through some indirect


18/35

12

means unrelated to remedying past constitutional vi-olations or precluding future constitutional viola-tions. Tennesseev. Lane, 541 U.S. at 564 (Scalia, J.,dissenting) (prophylactic 5 legislation can be im-posed only upon those particular States in whichthere has been an identified history of relevant con-stitutional violations).

Furthermore, in terms of defining the power beingcarried into execution for purposes of the McCullochtest i.e., the legitimate end it would be well to

keep in mind Justice Scalias recognition that the en-forcement power has already exceeded credible textu-al boundaries and thus should not be expanded be-yond the bounds of previous precedent. Tennesseev.Lane, 541 U.S. at 558-59 (Scalia, J., dissenting).While stare decisis may be grounds for declining toretract past holdings, it is no justification for extend-ing them to changed circumstances or more intrusivelegislation, such as the 2006 revision of Section 5. Cf.General Motors Corp. v. Tracy, 519 U.S. 278, 312(1997) (Scalia, J., concurring) ( negative CommerceClause is an unjustified judicial invention, not to beexpanded beyond its existing domain; will applystare decisisonly (1) against a state law that faciallydiscriminates against interstate commerce, and (2)against a state law that is indistinguishable from atype of law previously held unconstitutional by thisCourt) (emphasis added).

In addition to declining to extend past precedentbeyond the unique and extreme circumstances fromwhich they arose, Justice Scalias accepted limits onprophylactic enforcement legislation, even in theracial context, are important tools for keeping Con-


19/35

13

gressional authority within their otherwise strainedconstitutional bounds. Thus, prophylactic measuressuch as Section 5 must be limited to particularStates in which there has been an identified historyof relevant constitutional violations and must be di-rected at States themselves, not at the public atlarge. Tennesseev. Lane, 541 U.S. at 564 (Scalia, J.,dissenting).

B. Section 5 Fails to Carry into Execution Con-gresss Power to Enforce the FifteenthAmendment.

Given the above description and limitations onCongresss enforcement power even under the McCul-lochtest, the same evidence and arguments raised byPetitioner to show that Section 5 is not a congruentand proportional remedy to any claimed constitution-al violations likewise demonstrate that it is neitherappropriate nor plainly adapted to enforcing the pro-hibitions of the Fourteenth and Fifteenth Amend-ments, and is not consistent with the letter and spirit

of the Constitution.

For example, Petitioner cites ample evidence thatthe unique circumstances and extreme need forprophylactic legislation that existed in 1965,Katzenbach, 383 U.S. at 335, have long since passed.Pet. Br. at 9-10, 19-20, 23-33. This Court itself hasrecognized the dramatic change in circumstancesfrom 1965 to today: Voter turnout and registrationrates now approach parity. Blatantly discriminatoryevasions of federal decrees are rare. And minority

candidates hold office at unprecedented levels.Northwest Austin, 557 U.S. at 202. Each of these


20/35

14

new circumstances now place even covered jurisdic-tions well ahead of where non-covered jurisdictionswere in 1965, and provide an ongoing political checkagainst backsliding. The urgent necessity for ex-treme measures such as preclearance is thus well inthe past, and such legislation is no longer appropriateeven under the McCulloch standard. While excep-tional conditions can justify legislative measures nototherwise appropriate, Katzenbach, 383 U.S. at 334,when conditions cease to be exceptional, those samelegislative measures cease to be appropriate.

Similarly, the coverage formula, while once plainlyadapted to identifying affirmative barriers to voting,now is not even remotely adapted to that purpose. Itis undisputed that first-generation barriers to votingare effectively eliminated, and the bulk of the claimeddiscrimination involves the alleged dilution of votesthat are being cast. Pet. App. 22a-24a, 26a-27a. Butsuch claimed dilution is not even remotely reflectedin metrics such as voter registration and turnout, andconsequently a remedy premised on low turnout asmeasured by decades-old data cannot be describedas plainly adapted to implementing a prohibition onalleged discrimination having no relationship what-soever to the metric. Indeed, to the extent there is acorrelation between inclusion in 4(b)s coverageformula and low black registration or turnout * * *[it] appears to be negative. Pet. App. 83a (Williams,J., dissenting); see alsoid. at 93a (the covered juris-dictions appear indistinguishable from their coveredpeers.).

That covered jurisdictions now largely indistin-guishable from uncovered peers are nonetheless the


21/35

15

target for intrusive federal supervision is simply irra-tional and, given the absence of relevant constitu-tional violations, such prophylactic legislation is notplainly adapted to enforcing the Reconstruction

Amendments and cannot be held to satisfy even astandard based on McCulloch. Lane, 541 U.S. at 564(Scalia, J., dissenting); cf. National Fed. Indep. Bus.v. Sebelius, 132 S.Ct. 2566, 2647 (2012) (Scalia, Ken-nedy, Thomas, Alito, JJ., dissenting) (concluding thatinsurance coverage mandate was not necessary toeffectuate insurance-market reforms).

Regardless of the test applied, therefore, the evi-dence and arguments raised by Petitioner and thedissent below are more than sufficient to demonstratethat Section 5 is no longer a valid exercise of Con-gresss enforcement power.

II. Highly Suspect Notions of Second-GenerationDiscrimination Provide Poor and Often Per-verse Support for Claims of UnconstitutionalConduct Said to Justify the Extreme Remedyof Preclearance.

In addition to the many other failings of the recordclaimed to support the extension of Section 5, Con-gresss critical reliance on so-called second-generationbarriers to voting is particularly troublesome in thatthe evidence of such supposed discrimination is large-ly composed of claims of vote dilution asserted by theDepartment of Justice in the context of redistricting.Pet. App. 99a (Williams, J., dissenting) (majority ofSection 5 objections concern redistricting); Pet. App.

26a-28a (majority opinion below considering evidenceof vote dilution claims and objections); Pet. Br. at 32


22/35

16

(most of this scattered evidence relates to vote dilu-tion); Given the criteria applied by DOJ in order tofind vote-dilution, and the overtly race-based reme-dies required by DOJ, such claims in fact offer littleto no evidence of unconstitutional racial discrimina-tion by the covered jurisdictions. Rather, they illus-trate how Section 5 itself is now a central tool for in-stitutionalized racial discrimination at the commandof the DOJ itself.4

A. Vote Dilution Objections, Inquiries, and Relat-ed Matters Are Not Evidence of Unconstitu-tional Discrimination.

As the courts below recognized, Congress based itsreauthorization on evidence of so-called second-generation barriers quite different from the directvoting discrimination that supported the original en-actment of Section 5. See Pub. L. No. 109-246, 2(b)(4), 120 Stat. 577, 577-78 (2006). Much of this ev-idence concerns racially polarized voting (i.e., blockvoting), seeH.R.REP.NO. 109-478 (2006), at 34-35,

and the remainder consists of Section 2 vote dilutionlitigation. Pet. App. 26a-29a, 36a-38a.

4 Contrary to the court of appeals suggestion that these is-sues are not properly in this case, Pet. App. 66a-67a, they gosquarely to whether Congress has produced evidence of uncon-stitutional discrimination needing extraordinary remedy. TheDOJs demands, in the preclearance process, that covered juris-dictions actually engage in affirmative racial discrimination to

create segregated voting districts likewise goes to the appropri-ateness of the means chosen to remedy or prevent any allegedconstitutional violations by the covered jurisdictions. Pet. App.77a (Williams, J., dissenting)


23/35

17

In particular, the evidence considered by thecourts below included, inter alia, Attorney Generalobjections issued to block proposed voting changes,more information requests issued by the AttorneyGeneral in response to preclearance applications, andlawsuits brought under Section 2 of the Act. Pet.

App. 24a (court of appeals opinion). The district courtalso considered evidence regarding, inter alia, voterturnout, electoral success, and racially polarized vot-ing Pet. App. 11a-12a (court of appeals describingdistrict court evidence).

As Petitioner has noted, preclearance objections,denials, and information requests are poor proxies foractual evidence of unconstitutional discriminationneeding a remedy. Pet. Br. at 30. And, as JusticeThomas has noted, second generation evidencebears no resemblance to the record initially support-ing 5, and is plainly insufficient to sustain such anextraordinary remedy. Northwest Austin, 557 U.S.at 228 (Thomas, J.).

Aside from the inadequacy of such evidence, how-ever, the fact that much of it involves a distorted no-tion of vote dilution also means that it is conceptuallyflawed. If DOJs notion of vote dilution does not rea-sonably reflect unconstitutional racial discrimination,then no number of objections, information requests,suits or settlements will establish a sufficient recordof constitutional violations to support Section 5. In-deed, the very foundation of modern vote dilutionclaims is no longer that some change is retrogressive

taking away voting power that already exists butrather that voting changes are insufficiently progres-sive and fail to give minority groups greater voting


24/35

18

strength through concentration in majority-minoritydistricts. The racial stereotypes and assumptionsunderlying such theories regarding what votingstrength different racial groups ought to have, whatcandidates racial groups prefer, and what constitutesrace-based electoral success on the one hand or im-proper block voting on the other are all deeply offen-sive and undermine claims of discrimination by cov-ered jurisdictions based on their failure to toe the lineof DOJs stereotypes, assumptions, and resulting pre-clearance policies.

The problems with vote dilution claims and reme-dies imposed under Section 5 have been noted often.Judge Williams below, for example, cited the racialgerrymandering that results from such efforts,which bears an uncomfortable resemblance to polit-ical apartheid. It reinforces the perception that mem-bers of the same racial group regardless of theirage, education, economic status, or the community inwhich they live think alike, share the same politicalinterests, and will prefer the same candidates at thepolls. We have rejected such perceptions elsewhere asimpermissible stereotypes. Pet App. 109a (Wil-liams, J., dissenting) (quoting Shawv. Reno, 509 U.S.630, 647 (1993)).

That much of the evidence of supposed constitu-tional violations relies on the DOJs application ofprecisely such stereotypes and racial assumptionswhen choosing to object to a voting procedure, seekmore information, or support a Section 2 suit castsconsiderable doubt on the validity of such evidenceas being probative of any actual constitutional viola-tions by covered jurisdictions. Unlike the direct de-


25/35

19

nials of the right to vote that originally motivatedSection 5, claiming a denial of the right to vote basedon supposedly insufficient voting strength and a lackof supposedly proper voting outcomes is freightedwith assumptions regarding the proper or non-discriminatory outcome of elections, the proper dis-tribution of votes, and stereotypes as to which candi-dates minority voters prefer. Such discriminationclaims also lump minority voters into a group ratherthan treating them as individuals, fail to recognizedifferences among minority groups, and apply equallyoffensive stereotypes to the voters of the majorityrace. In short, it is hard to imagine how one wouldclaim to find racial discrimination in this contextwithout engaging in precisely the same discrimina-tion in the process and in the remedy.

Given that the premises of modern vote dilutionclaims virtually require the types of racial stereotyp-ing and discrimination that it is claiming to combat,DOJs application of such stereotypes and premises isintrinsically flawed as evidence of discrimination byothers. Section 2 suits and settlements designed toforce an increase in majority-minority districts without any showing of retrogression cannot seri-ously be considered probative of existingdiscrimina-tion. Forcing a covered jurisdiction to create addi-tional racially concentrated voting districts may be asuccess to the DOJ, but it is more correctly charac-terized as a failure from the perspective of combatingracial discrimination.

DOJ objections and information requests are like-wise tainted by the DOJs flawed notion that the fail-ure to segregate and concentrate minority voters con-


26/35

20

stitutes discrimination. Past objections in pursuit ofDOJs own discriminatory black-maximization poli-cy, Millerv. Johnson, 515 U.S. 900, 921 (1995), areevidence only of discrimination by the DOJ itself, notof discrimination by the covered jurisdiction seekingpreclearance. The notion that preclearance could bedenied because a jurisdiction only created two, ratherthan three, segregated districts to increase minorityvoting strength shows that such objections are bettercharacterized as demands for unconstitutional dis-crimination rather than objections to discrimination.Id. at 924 (The key to the Governments position,which is plain from its objection letters if not from itsbriefs to this court * * * , is and always has been thatGeorgia failed to proffer a nondiscriminatory purposefor its refusal in the first two submissions to take thesteps necessary to create [an additional] majority-minority district.).

That this Court has previously relied on DOJ ob-jections and other such matters in assessing the needfor Section 5 is no justification for continuing to do sonow, given the changed nature of such objections. Inthe early years of Section 5, objections more often in-volved direct, first-generation, examples of discrimi-nation and vote denial, and even intentionally dis-criminatory affirmative dilution of existing votingstrength, not the dubious failure to turn the tables tothe DOJs liking. That an objection raised to a re-strictive test for voting is probative of discriminationis one thing that a complaint that covered jurisdic-tions failed to discriminate in the manner DOJ de-

mands is quite another matter and is no longer mean-


27/35

21

ingfully probative of any constitutional violations bythe covered jurisdictions.

Finally, the implementation of DOJs vote dilutionagenda also undermines, or at least casts in a differ-ent light, more traditional evidence thought to showracial discrimination. Racially polarized voting, forexample, was cited by Congress as the clearest andstrongest evidence of the need to reauthorize Section5, H.R.REPORT NO.109-478,at 34; VRARAA, 2(b)(3),120 STAT. at 577. Aside from the fact that such vot-

ing is not government action, and hence not a consti-tutional violation, see Pet. Br. at 31, DOJs vote-dilution views and conduct actually treat block votingsomewhat schizophrenically. Block voting by minori-ty groups, for example, is effectively favored and en-couraged, and if successful would be taken as evi-dence that discrimination has been defeated. Afterall, that would seem to be the entire purpose of ma-

jority-minority districts: allowing minority voters toracially block vote in order to obtain a successfuland, in DOJs view, non-discriminatory outcome ofelecting a minority office-holder. That the identicalconduct by non-minority voters is deemed evidence ofunconstitutional discrimination requiring Congres-sional remedy shows the contradictions in very prem-ises of the evidence cited.5

5 Furthermore, the fact that DOJs objections and compulsionof more majority-minority districts in fact creates the conditions

for and encourages racially polarized voting means that thesupposed remedy simply manufactures the very evidence usedto justify its extension. Section 5 as it now stands is effectivelyself-perpetuating if such evidence is sufficient to sustain it.


28/35

22

The prevalence of minority office-holders likewisetakes on a different relevance when viewed in light ofthe stereotypes underlying current vote dilution ar-guments. To deem insufficient minority office-holders as evidence of discrimination requires racial-ly stereotyped assumptions about what minority vot-ers as a group prefer, how many office-holders is thecorrect amount, and whether there needs to be pro-portional representation in order to demonstrate non-discrimination. Such assumptions and argumentsare reminiscent of the debate over quotas in the con-text of affirmative action, and are offensive for muchthe same reasons. Looking at electoral outcomesra-ther than electoral opportunity is simply the wrongmetric and one that promotes the very discriminationthe Constitution seeks to eliminate.

Furthermore, there is reason to believe that theDOJs own policies may well account for the difficultyfaced by minority office-holders seeking state-wide of-fice. If

one thinks there has been a shortfall in thecovered states, it might be caused in part bythe Justice Departments policy of maximizingmajority-minority districts, with the concomi-tant risks of isolating minority voters fromthe rest of the State and narrowing [their]political influence to only a fraction of politicaldistricts. Georgia v. Ashcroft, 539 U.S. 461,481, 123 S. Ct. 2498, 156 L. Ed. 2d 428 (2003).If African-American candidates primarily facesolidly African-American constituencies, andthus develop political personas pitched over-whelmingly to the Democratic side of the aisle,


29/35

23

it would hardly be surprising that they mightface special obstacles seeking statewide office(assuming, of course, racially-polarized voting,as 5 does).

Pet. App. 86a (Williams, J., dissenting).

The flaws in identifying supposed unconstitutionaldiscrimination through the lens of the DOJs vote-dilution policies are pervasive and infect much of theevidence cited by Congress and the Courts below.Those flaws, however are conceptual, not merely mat-

ters of weight or credibility. DOJ is looking at thewrong thing and inverting the very notion of discrim-ination such that many of its objections very nearlymean the opposite of what the courts below have tak-en them to mean. Such Orwellian proof of discrim-ination cannot be sufficient to support the constitu-tionally extreme Section 5 remedy.

B. Federal Use of Section 5 to Compel Race-BasedRedistricting Demonstrates that Section 5 IsPerversely Inappropriate to Enforce Prohibi-tions Against Racial Discrimination.

In addition to undermining the evidence relied up-on below, DOJs use of Section 5 to compel racial dis-crimination and voting segregation also shows thatthe supposed remedy is a severely inappropriatemeans of enforcing a prohibition against such dis-crimination, and is in conflict with the letter andspirit of the Constitution.

As this Court has often noted, the right to Equal

Protection vests solely in the individual, not in agroup. See, e.g., Shelley v. Kraemer, 334 U.S. 1, 22(1948). And government use of race is always sus-


30/35

24

pect and should be viewed with hostility. AdarandConstructors, Inc. v. Pea, 515 U.S. 200, 227 (1995).

Section 5 preclearance now focuses predominatelyon imposing racial classifications rather than elimi-nating them, as this Court has recognized. Preclear-ance in the redistricting context now effectively re-quires such jurisdictions to segregate voters by racein order to concentrate minority votes and supposedlyincrease the weight of such votes. See Northwest

Austin, 557 U.S. at 203 (noting preclearance re-

quirements of using race in redistricting in a mannerthat would be unconstitutional in other jurisdictions);Georgia v. Ashcroft, 539 U.S. 461, 491 (2003) (Kenne-dy, J., concurring) (application of Section 5 has ren-dered race the predominant factor in redistricting;[C]onsiderations of race that would doom a redis-tricting plan under the Fourteenth Amendment or 2seem to be what save it under 5.); Shaw v. Reno,509 U.S. 630, 647 (1993) (Section 5 preclearance re-quired, in effect, that minority voters be lumped to-gether with other persons with whom they may havelittle in common * * * but the color of their skin; suchredistricting perpetuates and enforces impermissiblestereotypes and bears an uncomfortable resem-blance to political apartheid.).

While this Court has delicately suggested that Sec-tion 5 is thus in tension with the Fourteenth

Amendment to the extent that it was used as acommand that States engage in presumptively un-constitutional race-based districting, Miller, 515U.S. at 927, the reality is that it is more than in ten-sion with the prohibitions against racial discrimina-tion, it is in flagrant violation of those prohibitions.


31/35

25

Congresss 2006 amendments to Section 5 have en-sured that this conflict continues. Under the amend-ed Section 5, covered jurisdictions must prove thatany change will not diminish[ ] the ability of minor-ities to elect their preferred candidates of choice, 42U.S.C. 1973c(b),(d), and is not premised on a dis-criminatory purpose of declining to adopt otherchanges that would have strengthened minority vot-ing power, 1973c(c). As Judge Williams recognizedin dissent below, that revised language means that[p]reclearance now has an exclusive focus whetherthe plan diminishes the ability of minorities (alwaysassumed to be a monolith) to elect their preferredcandidates of choice, irrespective of whether policy-makers (including minority ones) decide that agroups long-term interests might be better served byless concentration and thus less of the political iso-lation that concentration spawns. Pet. App. 75a (Wil-liams, J., dissenting); see also id. at 76a (Congressappears to have * * * restored the Justice Depart-ments implicit command that States engage in pre-

sumptively unconstitutional race-based districting. (quoting Reno v. Bossier Parish Sch. Bd., 528 U.S.320, 336 (2000) (Bossier II)).

That Section 5 has become a tool for requiring ra-cial classifications and race-based redistricting illus-trates how far this remedy has fallen from the morenoble purposes that animated it in 1965. This Courthas just considered the inappropriate classificationsof persons based on their race in the context of collegeadmissions, and should keep in the forefront of its

considerations here the extreme offensiveness of suchclassifications.


32/35

26

Classifications of citizens solely on the basis ofrace are by their very nature odious to a free peoplewhose institutions are founded upon the doctrine ofequality. Shaw v. Reno, 509 U.S. at 643 (quotingHirabayashi v. United States, 320 U.S. 81, 100(1943)). As this Court repeatedly has warned in vari-ous contexts, such classifications carry a danger ofstigmatic harm, may promote notions of racial infe-riority, and threaten to incite racial hostility. Cityof Richmond v. J.A.Croson Co., 488 U.S. 469, 493(1989); Shaw, 509 U.S. at 643. Political gerryman-dering of the electorate based on race also highlightsthe improper treatment of minority voters as fungiblemembers of their racial group, rather than as indi-viduals: One of the principal reasons race is treatedas a forbidden classification is that it demeans thedignity and worth of a person to be judged by ances-try instead of his or her own merit and essential qual-ities. Ricev. Cayetano, 528 U.S. 495, 517 (2000).

Any claim that such racial segregation helps mi-nority voters by increasing the weight or strength oftheir votes as a group carries no constitutional weight

at least no favorable weight. Rather, it highlightsthe group-stereotyping that is much of what is offen-sive about racial discrimination. Furthermore, thereis no equal protection exception for the good motivesof a government actor and there are no benign ra-cial classifications. Adarand, 515 U.S. at 226.Throughout history proponents of racial classifica-tions routinely justified their restrictions with ap-peals to the public good and claims of the great bene-

fits from or necessity for racial classifications.


33/35

27

In Brown v. Board of Education, 347 U.S. 483(1964), this Court properly rejected arguments bystate officials from Kansas, Delaware, Virginia, andSouth Carolina that black and white children learnedbetter in a single-race environment, and for societalpurposes could be kept separate by state mandate.

Similar claims of public interest and necessitywere used by the military to justify Japanese intern-ment during World War II, and racial segregation ofthe armed forces. Korematsu v. United States, 323

U.S. 214 (1944); seeWatkinsv. United States Army,875 F.2d 699, 729 (CA9 1989) (Norris, J., concurringin the judgment) (As recently as World War II boththe Army chief of staff and the Secretary of the Navy

justified racial segregation in the ranks as necessaryto maintain efficiency, discipline, and morale.), cert.denied, 498 U.S. 957 (1990). Those claims, too,proved overblown, unsupported, and inadequate to

justify the racial policies of their day.Hirabayashiv.United States, 828 F.2d 591 (CA9 1987); SeeKorematsuv. United States, 584 F. Supp. 1406, 1416,1420 (N.D. Cal. 1984).

This Court should recoil at the very notion of ap-proving government authority perversely used tomanufacture racially segregated majority-minorityvoting districts under the false flag of enforcing pro-hibitions on such discrimination. Substitute schoolsor neighborhoods for voting districts, and therewould be no question that government-manufacturedsegregation of minorities constituted racial discrimi-nation of the worst sort. But in the Orwellian uni-verse of the DOJ and Section 5, the failureto engagein such racial segregation is now evidence of discrim-


34/35

28

ination, and coerced racial segregation for votingpurposes is now the supposed remedy. Whatever thesupposed benefits, virtues, or aesthetics of segregatedvoting districts, they no more validate such overt andexpress racial discrimination than did past defensesof government mandated racial segregation in schoolsor elsewhere. Separate-but-politically-desirable is nomore compelling an argument than was separate-but-equal.

In the end, Section 5 is now less a means of pre-

venting unconstitutional racial discrimination andmore a mechanism for causing it. As such, it is nowthe precise antithesis of legislation appropriate toenforce the Reconstruction Amendments, it is not aproper means of executing Congresss enforcementpower, and it is not consistent with the letter andspirit of the Constitution. The current reauthoriza-tion of Section 5 thus is not a valid exercise of Con-gresss enforcement power and should be invalidated.

CONCLUSIONFor the foregoing reasons, this Court should re-

verse the decision below.


35/35

29

Respectfully submitted,

ERIKS.JAFFE(Counsel of Record)

ERIKS.JAFFE,P.C.5101 34th Street, N.W.Washington, D.C. 20008(202) 237-8165

[email protected]

Counsel for Amicus Curiae

Project 21

Dated: January 2, 2013

project 21 shelby county amicus 0113

Documents