IN THE UNITED STATES DISTRICT COURT FOR … [email protected] Nancy Abudu (Pro Hac Vice) Moffatt Laughlin McDonald (D.C. Bar No. WI0023) American Civil Liberties Union Foundation

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF TEXAS,

Plaintiff,

v.

ERIC H. HOLDER, JR.,

ATTORNEY GENERAL OF THE

UNITED STATES, et. al.,

Defendants.

Case No. 1:12-cv-00128

DST- RMC-RLW

DEFENDANT-INTERVENORS’ CROSS-MOTION FOR SUMMARY

JUDGMENT ON CLAIM TWO OF TEXAS’S AMENDED COMPLAINT

Defendant-Intervenors1 oppose Texas’s Motion for Summary Judgment (Doc. 347) and

file this cross-motion for summary judgment in favor of the Defendant and Defendant-

Intervenors on Claim Two of the First Amended Expedited Complaint for Declaratory Judgment.

1 This Cross-Motion is submitted on behalf of all Defendant-Intervenors, specifically, the Texas

State Conference of NAACP Branches and the Mexican American Legislative Caucus of the

Texas House of Representatives; the Texas League of Young Voters Education Fund, Imani

Clark, KiEssence Culbreath, Demariano Hill, and Dominique Monday; the Kennie Intervenors

(Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David

De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon); the Texas Legislative Black

Caucus, the League of Women Voters of Texas, the Justice Seekers, Peter Johnson, Ronald

Wright, and Donald Wright; Southwest Workers Union, La Union Del Pueblo Entero; Victoria

Rodriguez, Nicole Rodriguez, Southwest Voter Registration Education Project, Mi Familia Vota

Education Fund.

Case 1:12-cv-00128-RMC-DST-RLW Document 349 Filed 10/22/12 Page 1 of 7

As set forth more fully in the attached memorandum of points and authorities, Texas has failed to

set forth any valid grounds for an order granting summary judgment in the State’s favor. To the

contrary, Shelby County and decades of Supreme Court precedent make clear that no genuine

issue of material fact exists regarding the constitutionality of section 5 of the Voting Rights Act

of 1965 or the Voting Rights Act Reauthorization and Amendments Act of 2006.

Pursuant to Local Civil Rule 7, Defendant-Intervenors are filing a response to Texas’s

statement of material facts, an affirmative statement of material facts, a memorandum of points

and authorities in support of this cross-motion and opposition, and a proposed order. Defendant-

Intervenors do not request oral argument on these motions. If, however, the Court determines to

entertain oral argument, Defendant-Intervenors would request an opportunity to participate in the

argument.

Defendant-Intervenors respectfully request that this court enter an order in the form

attached to this cross-motion denying Texas’s request for summary judgment and granting

summary judgment in favor of the Defendant and Defendant-Intervenors.

Dated: October 22, 2012

/s/ Ezra D. Rosenberg

Ezra D. Rosenberg (D.C. Bar No. 360927)

Michelle Hart Yeary (Pro Hac Vice)

Dechert LLP

902 Carnegie Center, Suite 500

Princeton, NJ 08540-6531

(609) 955 3222 (phone)

Email: [email protected]


Jon Greenbaum (D.C. Bar No. 489887)

Mark A. Posner (D.C. Bar No. 457833)


mailto:[email protected]


Robert A. Kengle

Lawyers’ Committee for Civil Rights Under Law

1401 New York Ave., NW, Suite 400

Washington, D.C. 20005

(202) 662-8389 (phone)



Wendy Weiser (Pro Hac Vice)

Myrna Pérez (Pro Hac Vice)

Ian Vandewalker (Pro Hac Vice)

The Brennan Center for Justice at NYU Law School

161 Avenue of the Americas, Floor 12

New York, NY 10013-1205




Gary Bledsoe

Law Office of Gary L. Bledsoe & Associates

316 West 12th St., Suite 307

Austin, TX 78701

(512) 322-992 (phone)


Victor L. Goode

NAACP National Headquarters

4805 Mt. Hope Dr.

Baltimore, MD 21215-3297

(410) 580-5120 (phone)


Robert S. Notzon (D.C. Bar No. TX0020)

The Law Office of Robert Notzon

1507 Nueces St.

Austin, TX 78701

(512) 474 7563 (phone)











Jose Garza

Law Office of Jose Garza

7414 Robin Rest Dr.

San Antonio, TX 98209

(210) 392-2856 (phone)


Counsel for Defendant-Intervenors

Texas State Conference of NAACP Branches and

the Mexican American Legislative Caucus of

Texas House Representatives

Debo P. Adegbile (DC Bar No. NY0143)

Elise C. Boddie (Pro Hac Vice)

Ryan Haygood (DC Bar No. NY0141)

Dale E. Ho (DC Bar No. NY0142)

Leah C. Aden (Pro Hac Vice)

Natasha M. Korgaonkar (Pro Hac Vice)

NAACP Legal Defense and Educational Fund, Inc.

99 Hudson Street, Suite 1600

New York, NY 10013

(212) 965-2200/Fax: (212) 226-7592


FRIED, FRANK, HARRIS

SHRIVER & JACOBSON LLP

Douglas H. Flaum (Pro Hac Vice)

Michael B. de Leeuw (Pro Hac Vice)

Adam Harris (Pro Hac Vice)

One New York Plaza

New York, NY 10004-1980

(212) 859-8000

Counsel for Texas League of Young Voters

Education Fund, Imani Clark, Kiessence Culbreath,

Demariano Hill, and Dominique Monday



J. Gerald Hebert (D.C. Bar No. 447676)

Attorney at Law

191 Somerville Street, #405

Alexandria, VA 22304

Telephone: 703-628-4673


Chad W. Dunn (D.C. Bar No. 987454)

Texas Bar No. 24036507

Brazil & Dunn LLP

4201 Cypress Creek Pkwy., Suite 530

Houston, Texas 77068

Telephone: (281) 580-6310

Facsimile: (281) 580-6362


Counsel for Kennie Defendant-Intervenors

John Kent Tanner (D.C. Bar No. 318873)

3743 Military Road, N.W.

Washington, DC 20015

(202) 503-7696


Nancy Abudu (Pro Hac Vice)

Moffatt Laughlin McDonald (D.C. Bar No.

WI0023)

American Civil Liberties Union Foundation Inc.

230 Peachtree Street NW, Suite 1440

Atlanta, GA 30303

(404) 523-2721/Fax: (404) 653-0331



Rebecca Robertson (Pro Hac Vice)

American Civil Liberties Union Foundation of

Texas

1500 McGowan Street






(713) 942-8146


Donita Judge (D.C. Bar No. 502659)

Katherine Culliton-Gonzalez (D.C. Bar No.

448256)

Penda Hair (D.C. Bar No. 335133)

Advancement Project

1220 L Street, NW, Suite 850


(202) 728-9557



Counsel for Justice Seekers, League of Women

Voters of Texas, Texas Legislature Black Caucus,

Donald Wright, Peter Johnson, Ronald Wright,

Southwest Workers Union and La Union Del

Pueblo Entero

Nina Perales (D.C. Bar No. TX0040)

Luis O. Figueroa (Pro Hac Vice)

Mexican American Legal Defense & Educational

Fund, Inc.

110 Broadway, Suite 300


(210) 224-5476/Fax: 210-224-5382


Counsel for Mi Familia Vota Education Fund,

Southwest Voter Registration Education Project,

Nicole Rodriguez, Victoria Rodriguez




CERTIFICATE OF SERVICE

I certify that on October 22, 2012, the foregoing Cross-Motion for Summary Judgment

and was filed with the Clerk of the Court using the CM/ECF system which will electronically

serve all counsel of record.


Ezra D. Rosenberg




STATE OF TEXAS,

Plaintiff,

v.




Defendants.

Case No. 1:12-cv-00128

DST-RMC-RLW

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT-

INTERVENORS’ CROSS-MOTION FOR SUMMARY JUDGMENT AND IN

OPPOSITION TO TEXAS’S MOTION FOR SUMMARY JUDGMENT

Case 1:12-cv-00128-RMC-DST-RLW Document 349-1 Filed 10/22/12 Page 1 of 49

TABLE OF CONTENTS Page

- i -

I. INTRODUCTION .............................................................................................................. 1

II. TEXAS HAS A PERSISTENT HISTORY OF DISCRIMINATION IN VOTING

THAT CONTINUES TO THIS DAY ................................................................................ 2

III. CONGRESS‘ 2006 REAUTHORIZATION OF SECTION 5 AND SECTION 4(B) IS CONSTITUTIONAL ON ITS FACE ................................................................... 7

A. Shelby County v. Holder Requires Dismissal of Texas‘s Facial Challenge

to the 2006 Reauthorization of Section 5 and Section 4(b) of the Voting Rights Act ............................................................................................................... 7

B. Shelby County Fully Resolved the Constitutionality of the 2006 Reauthorization ....................................................................................................... 9

1. The Supreme Court has upheld Section 5 on four occasions prior to the 2006 reauthorization ............................................................................. 9

2. Texas fails to identify any aspect of Shelby County that was

wrongly decided ....................................................................................... 10

IV. CONGRESS ACTED WITHIN ITS AUTHORITY UNDER THE

FOURTEENTH AND FIFTEENTH AMENDMENTS WHEN IT PROHIBITED

PRECLEARANCE OF VOTING CHANGES THAT HAVE A

DISCRIMINATORY EFFECT; FURTHER, THE RETROGRESSION

STANDARD, ON ITS FACE AND AS APPLIED BY THIS COURT, IS FULLY CONSTITUTIONAL ........................................................................................................ 16

A. The Supreme Court Has Definitively Ruled That The Section 5 ―Effect‖ Standard Does Not Exceed Congress‘ Enforcement Powers .............................. 16

1. City of Rome v. United States.................................................................. 16

2. Lopez v. Monterey County ...................................................................... 18

3. Texas cannot overcome the controlling Supreme Court precedent establishing the constitutionality of the Section 5 effect standard .......... 20

4. The Section 5 ―effect‖ standard, as applied to prohibit Texas from implementing its photo ID requirement, is constitutional ....................... 23

B. The ―Retrogression‖ Definition of the Section 5 ―Effect‖ Standard is Constitutional ........................................................................................................ 25

1. The retrogression standard was established by the Supreme Court, and this Court is bound by it .................................................................... 25

2. The retrogression standard complies with the Fourteenth Amendment‘s Equal Protection Clause ................................................... 27

3. The retrogression standard provides a clear standard for judging the effect of covered jurisdictions‘ voting changes ................................. 30


TABLE OF CONTENTS Page

- ii -

C. The Retrogression Standard, As Applied by This Court to Deny Preclearance to Texas‘s Photo ID Requirement, is Constitutional ..................... 35

V. CONCLUSION ................................................................................................................. 38


- iii -

TABLE OF AUTHORITIES

CASES

Athason v. Grasso,

411 F. Supp. 1153 (D. Conn. 1976) ........................................................................................... 8

Beer v. United States,

425 U.S. 125 (1976) ........................................................................................................... passim

Beer v. United States,

425 U.S. 130.................................................................................................................. 25, 28, 29

City of Boerne v. Flores,

521 U.S. 507 (1997) ........................................................................................................... passim

City of Lockhart v. United States,

460 U.S. 125 (1983) ............................................................................................................ 30, 31

City of Port Arthur v. United States,

517 F. Supp. 987 (D.D.C. 1981) ............................................................................................... 31

City of Rome v. United States,

446 U.S. 156 (1980) ........................................................................................................... passim

County Council of Sumter County v. United States,

597 F. Supp. 35 (D.D.C. 1984) ................................................................................................. 31

Donnell v. United States,

682 F.2d 240 (D.C. Cir. 1982) .................................................................................................. 35

Florida v. United States,

2012 U.S. Dist. LEXIS 115647 (D.D.C. Aug. 16, 2012) .................................................... 8, 31

Georgia v. Ashcroft,

539 U.S. 461 (2003) ................................................................................................ 27, 30, 31, 35

Georgia v. United States,

411 U.S. 526 (1973) .................................................................................................................. 10

Hopson v. Schilling,

418 F. Supp. 1223 (D.C. Ind. 1976) ........................................................................................... 8

Katzenbach v. Morgan,

384 U.S. 641 (1966) .................................................................................................................. 17

Lassiter v. Northampton County Board of Elections,

360 U.S. 45 (1959) .................................................................................................................... 17


- iv -

Lewis v. Rockefeller,

431 F.2d 368 (2nd

Cir. 1970)....................................................................................................... 8

Lopez v. Monterey County,

525 U.S. 266 (1999) ........................................................................................................... passim

LULAC v. Perry,

548 U.S. 399 (2006) .......................................................................................................... 3, 4, 28

Morris v. Gressette,

432 U.S. 491 (1977) .................................................................................................................. 34

Nevada Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003) ............................................................................................................ 22, 35

New York v. United States,

874 F. Supp. 394 (D.D.C. 1994) ............................................................................................... 31

Nw. Austin Mun. Util. Dist. No. 1 v. Holder,

557 U.S. 193 (2009) .............................................................................................................. 7, 10

Nw. Austin Mun. Util. Dist. No. 1 v. Mukasey,

573 F. Supp.2d 221 (D.D.C. 2008).................................................................................... passim

Oregon v. Mitchell,

400 U.S. 112 (1970) ............................................................................................................ 17, 23

Parker v. Ohio,

263 F. Supp. 2d 1100 (S.D. Ohio 2003) ..................................................................................... 9

Presley v. Etowah County,

502 U.S. 491 (1992) .................................................................................................................. 23

Reno v. Bossier Parish,

528 U.S. 320 (2000) ...................................................................................................... 26, 27, 28

Reno v. Bossier Parish School Board,

520 U.S. 471 (1997) ...................................................................................................... 25, 30, 31

Russell v. Hathaway,

423 F. Supp. 833 (D.C. Tex. 1976) ............................................................................................ 8

Shelby County v. Holder,

679 F.3d 848(D.C. Cir. 2012) ............................................................................................ passim

Shelby County v. Holder,

811 F. Supp. 2d 424 (D.D.C. 2011) ......................................................................................... 34


- v -

South Carolina v. Katzenbach,

383 U.S. 301 (1966) ........................................................................................................... passim

South Carolina v. United States,

2012 U.S. Dist. LEXIS 146187 (D.D.C. Oct. 10, 2012)................................................... passim

Sumter County v. United States,

555 F. Supp. 694 (D.D.C. 1983) ............................................................................................... 34

Tennessee v. Lane,

541 U.S. 509 (2004) ............................................................................................................ 22, 35

Texas v. Holder,

2012 U.S. Dist. Lexis 127119 (D.D.C. Aug. 30, 2012) .................................................... passim

Texas v. United States,

1997 U.S. Dist. LEXIS 3138 (1997) .......................................................................................... 8


2012 U.S. Dist. LEXIS 121685 (D.D.C. 2012)............................................................ 1, 2, 3, 31


279 F.R.D. 24 (D.D.C. 2012) ..................................................................................................... 8

United States v. Ramsey,

353 F.2d 650 (5th

Cir. 1965) ....................................................................................................... 9

Virginia v. Reno,

117 F. Supp. 46 (2000) ............................................................................................................... 8

STATUTES

42 U.S.C. § 1973c(b) & (d) ...................................................................................................... 20, 27

42 U.S.C. § 1973c(c)....................................................................................................................... 26

An Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia,

Alabama, and Florida to Representation in Congress, ch. 70, 15 Stat. 73, § 1 (1868) ........... 19

Pub. L. No. 89-110, 79 Stat. 437, 438, § 4(a) (1965)....................................................................... 9

Pub. L. No. 91-285, 84 Stat. 314, 315, § 3 (1970) ........................................................................... 9

Pub. L. No. 94-73, 89 Stat. 400-01, § 201 (1975) ............................................................................ 9

Pub. L. No. 97-205, 96 Stat. 131, 133, § 2(b) (1982) ...................................................................... 9

Pub. L. No. 109-246, § 4, 120 Stat. 577, 580 ................................................................................... 9


- vi -

§ 2 of the Voting Rights Act, 42 U.S.C. § 1973...................................................................... passim

§ 3, 42 U.S.C. § 1973a .................................................................................................................... 13

§ 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b) ................................................................... 7

§ 5 of the Voting Rights Act, 42 U.S.C. § 1973c .................................................................... passim

Tex. Elec. Code § 63.0101 ................................................................................................................ 6

OTHER AUTHORITIES

28 C.F.R. 51.54(b) .......................................................................................................................... 30

28 C.F.R. pt. 51 ............................................................................................................................... 31

28 C.F.R. § 51.13(b) ....................................................................................................................... 23

76 Fed. Reg. 7470 (Feb. 9, 2011) ............................................................................................. 30, 31

FIFTEENTH AMENDMENT .......................................................................................................... passim

FOURTEENTH AMENDMENT ............................................................................................................. 25

http://www.justice.gov/ ..................................................................................................................... 3

http://www.justice.gov/crt/ ............................................................................................................... 4

http://www.justice.gov/crt/about/vot/sec_5/changes.php .............................................................. 29

http://www.rutgerslawreview.com/current-issue/. ......................................................................... 14

J. GERALD HEBERT, ―THE FUTURE OF THE VOTING RIGHTS ACT‖ 64 RUTGERS L.REV. 952

(2012) ....................................................................................................................................... 14

17A Wright & Miller, Federal Practice and Procedure, § 4235 (3rd

ed.) ........................................ 9


I. INTRODUCTION.

Just two months ago, within the span of two days, two separate three-judge panels of the

District of Columbia District Court rejected attempts by the State of Texas to abridge the right to

vote of its minority citizens. On August 30, 2012, acting under its authority under Section 5 of

the Voting Rights Act, 42 U.S.C. § 1973c, this Court unanimously rejected Texas‘s

discriminatory effort to implement a photo identification requirement that would be ―the most

stringent in the country.‖ Texas v. Holder, 2012 U.S. Dist. Lexis 127119, *96. Two days earlier,

on August 28, 2012, another three-judge panel had unanimously rejected, also under Section 5 of

the Voting Rights Act, three statewide legislative redistricting plans enacted by Texas following

the 2010 Census on the grounds that they were retrogressive and intentionally racially

discriminatory. Texas v. United States, 2012 U.S. Dist. LEXIS 121685. For Texas, this is the

fifth redistricting cycle since the enactment of the Voting Rights Act that the state‘s redistricting

plans have been determined to violate Section 5. The irony is not lost that Texas now

approaches this Court with a request that the Court declare unconstitutional, as no longer needed,

the very statute that has steadfastly and repeatedly proved necessary – up to this very minute – to

do what the State itself has failed to do: ensure that its political process is free of racial

discrimination.

Texas‘s constitutional challenge is wholly without merit for the following reasons.

Settled precedent of the Supreme Court and the D.C. Circuit, the congressional record supporting

the 2006 reauthorization of Section 5, and Texas‘s history of discrimination and the ongoing

discrimination proved in this case demonstrate that Section 5, both on its face and as applied, is

constitutional. In particular, Texas‘s facial challenge to the 2006 reauthorization of Section 5 is

foreclosed by the D.C. Circuit‘s recent decision in Shelby County v. Holder, 679 F.3d 848


- 2 -

(2012), and its argument that the ―effect‖ prong of Section 5 exceeds Congress‘ authority under

the Fifteenth Amendment has already been rejected by the Supreme Court in City of Rome v.

United States, 446 U.S. 156, 173-78 (1980), and Lopez v. Monterey County, 525 U.S. 266, 283

(1999).

Furthermore, Texas‘s argument that ―retrogression‖ is a constitutionally impermissible

standard fails even to mention or account for the Supreme Court‘s decision in Beer v. United

States, 425 U.S. 125, 141 (1976), the case in which the Court established ―retrogression‖ as the

standard for Section 5‘s ―effect‖ prong, over 35 years ago. And its final argument, that this

Court unconstitutionally applied the retrogression test, amounts to nothing more than a plea for

this Court to revisit its painstaking review of the factual record. Texas has been aware for

decades that changes in its voting requirements are held to the retrogression standard, and was

aware during the legislative process leading to the enactment of SB 14 that its photo ID

requirement would impose burdens that would abridge the right to vote of its Latino and African-

American citizens. Nevertheless, acting in a legislative process marked with anti-immigrant

rhetoric, false rationalizations, and deviations from established legislative procedures, the State

decided to plow ahead on a course of action which, if not enjoined by Section 5, would have

harmed minority voters.

For these reasons and those discussed more fully below, Defendant-Intervenors

respectfully request that Texas‘s motion for summary judgment be denied, and that Defendant-

Intervenors‘ cross-motion for summary judgment be granted.

II. TEXAS HAS A PERSISTENT HISTORY OF DISCRIMINATION IN VOTING

THAT CONTINUES TO THIS DAY.

As set forth below, this Court‘s resolution of the constitutional issues presented in this

litigation is dictated by controlling precedent of the Supreme Court and the D.C. Circuit.


- 3 -

However, before addressing that precedent, Intervenors believe it is useful to review how

Texas‘s ongoing history of discrimination against Latino and African-American voters –

demonstrated most recently in this case and the Texas v. United States redistricting decision –

evidences the continuing need for of Section 5‘s protections. In addition, since Texas spends a

substantial portion of its summary judgment brief attacking this Court‘s preclearance decision, it

is appropriate to briefly review the record in this case.

Texas‘s history of voting discrimination, and the importance of Section 5 coverage, was

summarized by the Supreme Court, just six years ago, in its decision finding that Texas violated

Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, in adopting a congressional redistricting

plan:

Texas has a long, well-documented history of discrimination that has touched upon the rights

of African-Americans and Hispanics to register, to vote, or to participate otherwise in the

electoral process. Devices such as the poll tax, an all-white primary system, and the

restrictive voter registration time periods are an unfortunate part of this State‘s minority

voting rights history. The history of official discrimination in the Texas election process—

stretching back to Reconstruction—led to the inclusion of the state as a covered jurisdiction

under Section 5 in the 1975 amendments to the Voting Rights Act. Since Texas became a

covered jurisdiction, the Department of Justice has frequently interposed objections against

the State and its subdivisions.

LULAC v. Perry, 548 U.S. 399, 439-40 (2006) (internal quotation marks omitted).

Texas‘s ongoing discriminatory conduct is well exemplified by its repeated enactment of

discriminatory statewide redistricting plans. Not only were all the challenged post-2010

statewide legislative plans struck down in Texas v. United States and the 2003 congressional plan

struck down in LULAC, but prior plans following the 2000, 1990, 1980, and 1970 Censuses were

struck down by the courts and were the subject of Section 5 objections. See Texas v. United

States, 2012 U.S. Dist. LEXIS 121685 at *77; http://www.justice.gov/crt/about/vot/sec_5/

tx_obj2.php (listing of all Section 5 objections in Texas, including statewide redistricting plans).


- 4 -

In Texas v. United States, this District Court unanimously concluded that Texas‘s 2011 plans for

Congress and the state Senate were motivated by a discriminatory purpose, and that there were

strong indicia that the 2011 plan for the state House also had a discriminatory purpose. Texas v.

United States, 2012 U.S. Dist. LEXIS 121685, at *79 (congressional plan), *92-93 (Senate plan),

*129-130 (House plan). Likewise, the Supreme Court concluded that Texas‘s 2003

congressional plan was ―damaging to . . . Latinos,‖ LULAC v. Perry, 548 U.S. at 440, violated

Section 2 of the Voting Rights Act, and bore ―the mark of intentional discrimination that could

give rise to an equal protection violation.‖ Id.

Since the 1982 reauthorization of Section 5, the Attorney General has interposed over

100 objections to voting changes enacted by Texas and its subjurisdictions. See

http://www.justice.gov/crt/ about/vot/sec_5/tx_obj2.php. Indeed, ―despite having been covered

only since 1975, Texas received more objections during the entire 1966-2004 period than did any

other covered state.‖ Nw. Austin Mun. Util. Dist. No. 1 v. Mukasey, 573 F. Supp.2d 221, 281

(D.D.C. 2008). Furthermore, the 2005-06 legislative ―record reveals . . . a substantial gap in

registration rates between whites and Hispanics, . . . [and] that since 1982 Texas led all covered

jurisdictions in the number of [more-information-request]-induced outcomes, judicial

preclearance suits resolved favorably to minorities, and successful section 5 enforcement suits.‖

Id. And, when examining voting discrimination throughout the country, Texas (along with six

other covered states or partially covered states) is among ―the eight states with the highest

number of successful published and unpublished section 2 cases per million residents.‖ Shelby

County, 679 F.3d at 875.

This case further demonstrates Texas‘s ongoing discriminatory conduct. As this Court

found, Texas‘s photo ID would have a retrogressive effect on minority voters. Moreover, there


- 5 -

are substantial indicia in the record that SB 14 was enacted with a discriminatory purpose,

although this Court found it unnecessary to reach this question.

SB 14 was enacted in the context of heated racial and anti-immigrant rhetoric tied to

voter identification legislation. Following the release of 2010 Census data, Texas newspapers

and television outlets reported widely that the Latino population in Texas was growing rapidly

and would lead to increased political strength for the Latino community. DIX 3 at 7-8. Debates

in the various legislative sessions which considered photo ID legislation often included claims

that photo ID was needed to stop voter fraud by non-U.S. citizens, DIX 3 at 11, although the

proposed ID provisions did not generally relate to citizenship status. During the year of and

before the passage of SB 14, Texas elected officials received a substantial number of letters and

emails from constituents characterizing photo ID legislation as legislation regarding illegal

immigration, often urging the enactment of ID legislation to stop illegal immigrants from voting

and using inflammatory references to ―criminal aliens,‖ ―wetbacks,‖ and similar derogatory

phrases and racial epithets. See generally DIX 83 – 104. Leading state officials also explicitly

linked photo ID with voting by noncitizens.1

Throughout the Texas‘s Legislature‘s consideration of photo ID bills, the Legislature was

alerted to the potential discriminatory effect of a strict photo ID law. For example, in the 2009

legislative session, the Chairman of the House Elections Committee, Rep. Todd Smith, was

aware that minority voters are less likely to have photo voter ID, and understood that allowing

the use of a non-photo ID alternative would ―significantly lessen any marginal additional

1 For example, on February 8, 2011, Lt. Gov. Dewhurst wrote to a constituent regarding photo

ID, stating, ―Voter ID will help stamp out voter fraud and increase public confidence in our

election process by ensuring that only U.S citizens – who are legally eligible – vote in Texas

elections.‖ DIX 3 at 16. Upon Senate passage of SB 14, the Lt. Governor issued a press release

stating that SB 14 will increase voter confidence ―by ensuring only U.S. citizens – who are

legally eligible – vote in Texas elections.‖ DE 109.


- 6 -

burden‖ that ID requirements placed on some voters. Smith Dep. 154:1-156:20, 196:19-198:2,

202:1-5. See also JA 1575-77; JA 2117-24; JA 2140-41; JA 2147-48; JA 2168-70.

Nevertheless, the Texas Legislature considered increasingly restrictive photo

identification bills over a series of sessions (JA 3106, 3110-11; JA 3244-45; JA 8135-36; JA

8940-41), ending in the enactment of an identification law that is ―the most stringent in the

country.‖ Texas v. Holder, 2012 U.S. Dist. Lexis 127119 at *96. To do so, the Texas

Legislature departed significantly from its normal procedure, including suspending, for the photo

voter identification bill, the Senate‘s time-honored tradition of the two-thirds rule. DE 368; K.

Davis Dep. 49:1-51:6, 120:6-10. And legislators rejected dozens of amendments that would

have reduced the burden of SB 14 on minorities. Texas v. Holder, 2012 U.S. Dist. Lexis 127119

at *96.

Compared to the current voter identification law in Texas, SB 14 would permit fewer

forms of ID for in-person voting. Specifically, SB 14 sought to eliminate the voter registration

certificate as an acceptable form of ID as well as other non-photo documents that are currently

acceptable such as utility bills, birth certificates, and government correspondence. SB 14 also

would have eliminated certain photo ID that is acceptable under the current Texas voter ID law

such as student and employment identification. Tex. Elec. Code § 63.0101; JA 3106, 3110-11;

JA 3244-45; JA 8135-36; JA 8940-41. Furthermore, SB 14 excluded otherwise acceptable photo

ID if the ID expired more than 60 days prior to presentation. JA 3110-11.

Texas has never disputed, and this Court found, that ―there exists a subgroup of registered

voters, including minorities, who lack SB 14-approved photo ID.‖ Texas v. Holder, 2012 U.S.

Dist. Lexis 127119 at *79. This Court found, as a matter of ―undisputed record evidence,‖ that

―racial minorities in Texas are disproportionally likely to live in poverty and, because SB 14 will


- 7 -

weigh more heavily on the poor, the law will likely have retrogressive effect.‖ Id. at *79.

Furthermore, this Court found that ―the burdens associated with obtaining a purportedly ‗free‘

voter ID card will be heavier under SB 14 than under either Indiana or Georgia law‖ because out

of pocket costs are higher in Texas to obtain the underlying required documentation for an

Election Identification Certificate, and because in Texas there are greater burdens imposed on

those who must travel to a Department of Public Safety office to apply for an EIC. Id. at *47.

Texas was aware of the provisions of other states‘ voter identification laws and was also aware

that ―SB 14 is far stricter than either Indiana's or Georgia's voter ID laws.‖ Id. And, as this

Court also found, ―[i]gnoring warnings that SB 14, as written, would disenfranchise minorities

and the poor,‖ id. at *96-97, ―crucially, the Texas legislature defeated several amendments that

could have made this a far closer case.‖ Id. at *96.

In sum, this Court's finding of a retrogressive effect is well founded on the evidence, and,

in addition, there was substantial evidence that SB 14 was enacted with a discriminatory purpose.

III. CONGRESS’ 2006 REAUTHORIZATION OF SECTION 5 AND SECTION 4(b) IS

CONSTITUTIONAL ON ITS FACE.

The court of appeals‘ decision in Shelby County settled the facial validity of the 2006

reauthorization of Section 5 and Section 4(b) of the Voting Rights Act, 42 U.S.C. § 1973b(b),

within the District of Columbia Circuit. Well-established jurisprudence requires that this three-

judge district court treat Shelby County as controlling precedent on that issue. Texas fails to

identify any facts or legal developments that require a different conclusion.

A. Shelby County v. Holder Requires Dismissal of Texas’s Facial Challenge to

the 2006 Reauthorization of Section 5 and Section 4(b) of the Voting Rights

Act.

In Shelby County, the D.C. Circuit conducted a careful review of the legislative record

Congress developed in 2005 and 2006 in support of its reauthorization of Sections 5 and 4(b), in


- 8 -

resolving Shelby County, Alabama‘s facial challenge to the 2006 reauthorization. The D.C.

Circuit held that Congress acted within its Fourteenth and Fifteenth Amendment enforcement

authority when it extended the sunset date for the preclearance remedy for an additional twenty-

five years. The D.C. Circuit focused directly upon answering the ―two principal inquiries‖ set

forth by the Supreme Court in Nw. Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. 193 (2009)

(―Nw. Austin‖): whether the ―‗current burdens‘‖ imposed by Section 5 ―are ‗justified by current

needs‘‖; and whether Section 5‘s ―‗disparate geographic coverage is sufficiently related to the

problem that it targets.‘‖ Shelby County, 679 F.3d at 858-59 (quoting Nw. Austin, 557 U.S. at

203). For its part, Texas concedes that the Shelby County opinion is ―comprehensive,‖ and that

this Court ―must reject [Texas‘s] arguments‖ that the 2006 reauthorization is unconstitutional

should the Court conclude that it is bound by Shelby County. Texas‘s Memorandum of Points

and Authorities in Support of Plaintiff‘s Motion for Summary Judgment (―Brief‖) at 38.2

Recently, another three-judge panel of this District Court, presented with a facial

challenge to the constitutionality of the 2006 reauthorization, held that it was ―bound‖ by the

D.C. Circuit‘s Shelby County ruling. Florida v. United States, no. 11-1428, Order at 3 (June 5,

2012) (Doc. 106). Other Section 5 three-judge panels of this District Court also have regularly

adhered to D.C. Circuit precedent. Texas v. United States, 279 F.R.D. 24, 27-29 (2012) (Circuit

precedent regarding attorney-client privilege, the work-product doctrine, and state legislative

privilege) (single-judge ruling on behalf of the panel); Virginia v. Reno, 117 F. Supp. 46, 51-52,

54 (2000) (Circuit precedent regarding the ripeness doctrine); Texas v. United States, 1997 U.S.

Dist. LEXIS 3138, at *3, 8-11, 14-15 (1997) (same), aff’d, 523 U.S. 296 (1998). Other courts

also have held that circuit precedent binds three-judge district courts. Lewis v. Rockefeller, 431

2 As did the plaintiff in Shelby County, Texas asserts only a facial challenge to the

constitutionality of the 2006 reauthorization. Brief at 2.


- 9 -

F.2d 368, 371 (2nd

Cir. 1970); Russell v. Hathaway, 423 F. Supp. 833, 835 (D.C. Tex. 1976);

Hopson v. Schilling, 418 F. Supp. 1223, 1235 (D.C. Ind. 1976); Athason v. Grasso, 411 F. Supp.

1153, 1157 (D. Conn. 1976). Thus, because this Court is bound by the holdings of the D.C.

Circuit, Shelby County controls the disposition of Texas‘s facial claim.3

B. Shelby County Fully Resolved the Constitutionality of the 2006

Reauthorization.

The court of appeals‘ ruling in Shelby County is correct, as it is fully grounded in the law

and the legislative record.

1. The Supreme Court has upheld Section 5 on four occasions prior to

the 2006 reauthorization.

Shelby County was decided against the backdrop of the Supreme Court‘s repeated

determinations that the Section 5 preclearance remedy is constitutional. The Supreme Court first

upheld Congress‘ authority to enact Section 5 in a ruling handed down just seven months after

the Voting Rights Act was adopted. Thereafter, the Court has upheld the preclearance remedy in

decisions following each of the subsequent reauthorizations preceding the 2006 extension.4

3 Texas cites no controlling authority to the contrary. Texas portrays United States v. Ramsey,

353 F.2d 650 (5th

Cir. 1965), as concluding ―that a three-judge district court is not bound by

circuit precedent‖ (Brief at 39), but the issue in Ramsey was whether a circuit court is bound by a

determination of a three-judge district court located within that circuit, i.e., the reverse of the

situation presented here. Texas‘s reliance on Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio

2003) (three-judge court), is similarly misplaced. Texas cites to a concurring opinion of one of

the three judges (who merely noted that ―some question exists‖ as to whether a three-judge court

is bound by circuit precedent (id. at 1112 n.3)) and ignores the majority‘s explicit holding that

―we are bound by precedent in this circuit.‖ Id. at 1105. Parker therefore supports the

proposition that this Court is bound by the D.C. Circuit‘s ruling in Shelby County. Texas also

cites to 17A Wright & Miller, Federal Practice and Procedure, § 4235 (3rd

ed.), to the effect that

there is ―‘some authority‘‖ that supports its position. Brief at 38. However, the only ―authority‖

identified by Wright & Miller in this regard is one district court decision from 1967. That single

decision plainly does not outweigh the substantial authority holding that circuit precedent does

bind three-judge district courts. 4 Section 5 originally was to sunset after five years. Pub. L. No. 89-110, 79 Stat. 437, 438,

§ 4(a) (1965). Congress reauthorized the provision for another five years in 1970, Pub. L. No.


- 10 -

In 1966, in South Carolina v. Katzenbach, 383 U.S. 301 (1966), the Supreme Court fully

endorsed Congress‘ decision to ―shift the advantage of time and inertia from the perpetrators of

the evil to its victims‖ (id. at 328), in those ―areas [of the country] where voting discrimination

has been most flagrant‖ (id. at 315), by requiring that all voting changes in these areas be subject

to federal review prior to implementation. Id. at 329-333 (upholding the geographic coverage

provisions), 334-35 (upholding the preclearance mechanism). Katzenbach has remained a

touchstone of the Supreme Court‘s jurisprudence construing the enforcement clauses of the

Reconstruction Amendments. See e.g., City of Boerne v. Flores, 521 U.S. 507, 518-19, 525, 530,

532-33 (1997).

Following Congress‘ 1970 reauthorization of Section 5, the Supreme Court reaffirmed

Katzenbach in Georgia v. United States, 411 U.S. 526, 535 (1973). Then, following the 1975

reauthorization, the Court, in City of Rome, upheld Congress‘ authority to extend the life of the

Section 5 remedy for an additional period of years (based on Congress‘ determination of a

continuing need for the remedy), 446 U.S. at 180-82, and also upheld Congress‘ original

decision, in 1965, to include in Section 5 a prohibition on voting changes that have a

discriminatory effect. Id. at 173-78. Finally, following the 1982 reauthorization, the Court again

upheld Section 5, this time in response to an as-applied challenge by a State partially covered for

Section 5 reviews. Lopez v. Monterey County, 525 U.S. at 283-84.

2. Texas fails to identify any aspect of Shelby County that was wrongly

decided.

In Nw. Austin, the Supreme Court did not question its prior rulings upholding the

constitutionality of Section 5. The Supreme Court did recognize that the constitutionality of the

91-285, 84 Stat. 314, 315, § 3 (1970), for an additional seven years in 1975, Pub. L. No. 94-73,

89 Stat. 400-01, § 201 (1975), for 25 years in 1982, Pub. L. No. 97-205, 96 Stat. 131, 133,

§ 2(b) (1982), and again for 25 years in 2006. Pub. L. No. 109-246, § 4, 120 Stat. 577, 580.


- 11 -

2006 reauthorization would depend upon whether the ―current burdens‖ imposed by Section 5

are ―justified by current needs‖; and whether Section 5‘s ―disparate geographic coverage is

sufficiently related to the problem that it targets.‖ Nw. Austin, 557 U.S. at 203. The court of

appeals fully addressed the Nw. Austin inquiries in deciding Shelby County, and concluded that

the 2006 reauthorization is constitutional. Texas has given this Court no reason to reach a

different conclusion.5

With respect to Nw. Austin’s ―current needs‖ inquiry, the court of appeals found that the

legislative ―record contains numerous examples of modern instances of racial discrimination in

voting.‖ Shelby County, 679 F.3d at 865 (internal quotation marks omitted). The court further

determined that, ―[i]n addition to these examples of flagrant racial discrimination, several

categories of evidence in the record support Congress‘s conclusion that intentional racial

discrimination in voting remains so serious and widespread in covered jurisdictions that section 5

preclearance is still needed.‖ Id. at 866. 6 Nowhere in its papers does Texas confront these

findings.7

5 The D.C. Circuit, in Shelby County, observed that the Nw. Austin ―current needs‖ and

―disparate geographic coverage‖ inquiries were analogous to the City of Boerne v. Flores

―congruence and proportionality‖ inquiry. The court of appeals therefore applied the Boerne

standard, which is ―arguably more rigorous‖ than what is generally described as the ―rationality‖

standard employed in South Carolina v. Katzenbach, and concluded that Section 5 would survive

regardless of whether the Boerne or Katzenbach standard controls. Shelby County, 679 F.3d at

859. Intervenors agree with this.

6 The record before Congress included: (1) 626 DOJ objections from 1982 to 2004 to voting

changes that had the purpose or effect of discriminating against minority voters; (2) ―more

information requests‖ sent by the Justice Department regarding Section 5 submissions which

resulted in the withdrawal or modification of over 800 potentially discriminatory voting changes;

(3) 653 successful lawsuits brought under Section 2 of the Voting Rights Act, between 1982 and

2005 providing relief from discriminatory practices in at least 825 covered counties; (4) tens of

thousands of federal observers dispatched to monitor elections in covered jurisdictions; (5) 105

successful Section 5 enforcement actions brought against covered jurisdictions between 1982

and 2004; (6) 25 preclearance denials by the District Court for the District of Columbia between


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Texas claims, without supporting authority, that ―a mere showing of a pattern of

constitutional violations‖ is insufficient to justify the preclearance remedy; Texas asserts,

instead, that the legislative record must contain evidence of constitutional violations that ―cannot

be remedied though traditional litigation,‖ namely litigation brought under the Constitution and

Section 2 of the Voting Rights Act. Brief at 41. This argument also was considered and

correctly rejected in Shelby County. The court of appeals found that, for several reasons,

Congress properly concluded that Section 2 litigation remains inadequate: Section 2 claims are

―intensely complex . . . costly and time-consuming,‖ 679 F.3d at 872 (internal quotation marks

omitted); minority voters often would find it ―incredibly difficult . . . to pull together the

resources needed to pursue a section 2 lawsuit,‖ id. (internal quotation marks omitted); and,

unlike Section 5, which ―shift[s] the advantage of time and inertia from the perpetrators of the

evil to its victims‖ (Katzenbach, 383 U.S. at 328), Section 2 litigation may allow the

―proponents of a discriminatory law to enjoy its benefits . . . before the [challenged] law is

overturned,‖ Shelby County, 679 F.3d at 872. As to cost and resources, the court of appeals

found no evidence to support the ―speculation‖ that, in the absence of Section 5, the Justice

Department would assume the costs of Section 2 litigation. Id. at 873. And with regard to

adjudicative delay, the court concluded that, given the many obstacles minority litigants face in

bringing Section 2 cases, Congress reasonably concluded that Section 2 litigants‘ ability, on

1982 and 2004; (7) evidence that Section 5 has a strong deterrent effect; and (9) evidence that

Section 2 is not an adequate remedy for racial discrimination in voting in the covered

jurisdictions. Shelby County, 679 F.3d at 866-73.

7 Texas asserts that Section 5 objections interposed by the Attorney General based solely upon a

finding of retrogression may not be considered in evaluating the ―current needs‖ for Section 5

because a finding of retrogression does not establish a constitutional violation. Brief at 41.

However, as discussed infra, this assertion ignores the Supreme Court‘s holding in Rome that, in

the context of Section 5, a finding of discriminatory effect is closely linked to discriminatory

purpose. 446 U.S. at 177-78.


- 13 -

paper, to request a preliminary injunction ―was insufficient to alleviate [Congress‘] concerns

about the inadequacy of section 2 actions.‖ Id. Furthermore, the problems posed by Section 2

litigation are accentuated by ―the magnitude and persistence of discrimination in covered

jurisdictions.‖ Id. at 872.

With respect to the Nw. Austin inquiry regarding Section 5‘s geographic coverage, the

court of appeals found that voting discrimination remains concentrated in the Section 5 covered

jurisdictions. The court cited in particular to studies of vote dilution litigation brought under

Section 2 of the Voting Rights Act, which showed that significantly more successful Section 2

cases have been brought in covered jurisdictions than in noncovered jurisdictions. This was

particularly notable since, as the court of appeals observed, Section 5 ―deters or blocks many

discriminatory voting laws before they can ever take effect and become the target of section 2

litigation,‖ and thus, ―if discrimination was evenly distributed throughout the nation, we would

expect to see fewer successful section 2 cases in covered jurisdictions than in noncovered

jurisdictions. . . . Yet we see substantially more.‖ Id. at 878. Nowhere in its brief does Texas

challenge any of these findings.

The court of appeals also emphasized that, in examining Section 5‘s geographic

coverage, the entire coverage scheme must be considered, which includes not only the coverage

formula set forth in Section 4(b) of the Act, but also the bailout provisions of Section 4(a) and

the bail-in provisions of Section 3, 42 U.S.C. § 1973a. Id. at 881. Bailout, in particular, plays

an ―important role in ensuring that section 5 covers only those jurisdictions with the worst

records of racial discrimination in voting,‖ id., by providing those jurisdictions with ―a clean

record on voting rights‖ the means for terminating coverage. Id. at 882. Thus, bailout ―helps

‗ensure Congress‘ means are proportionate to [its] ends.‘‖ Id. at 881 (quoting Boerne, 521 U.S.


- 14 -

at 533).8 Bail-in under Section 3(c) ―allows jurisdictions not captured by section 4‘s coverage

formula, but which nonetheless discriminate in voting, to be subjected to . . . preclearance,‖ id.,

and thus addresses any underinclusiveness of the coverage formula.

Texas argues that the legislative record did not support Congress‘ decision to retain what

Texas characterizes as ―an outdated coverage formula.‖ Brief at 44. The court of appeals

correctly rejected this argument when it was made in Shelby County:

The question . . . is not whether the formula relies on old data or techniques, but

instead whether it, together with bail-in and bailout, continues to identify the

jurisdictions with the worst problems. If it does, then even though the formula

rests on decades-old factors, the statute is rational in theory because its ―disparate

geographic coverage‖ remains ―sufficiently related to the problem that it targets.‖

Shelby County, 679 F.3d at 879 (quoting Nw. Austin, 557 U.S. at 203).

Contrary to Texas‘s claim, Congress‘ legislative action in 2006 did not reflect any

assumption that the coverage formula, keyed to the 1964, 1968, and 1972 elections, denotes

current electoral conditions. Instead, Congress merely began its consideration of reauthorization

with the triggers in the original coverage determinations ―because they serve[] as accurate

proxies for [a history] of pernicious racial discrimination in voting‖ by the identified

jurisdictions, 679 F.3d at 879; Congress then took action, amending Section 4(a)(8) of the Act to

extend, for an additional period of years, the sunset date for Section 5, based on Congress‘

findings that there is an ongoing pattern of voting discrimination in the covered areas and that

voting discrimination remains concentrated in the covered areas. 9

8 See generally, J. Gerald Hebert, ―The Future of the Voting Rights Act” 64 Rutgers L.Rev. 952,

at 964-72 (2012) (discussing history and effect of bail-out provision), available at

http://www.rutgerslawreview.com/current-issue/.

9 Technically, the amendment to Section 4(a)(8) extended the sunset date for Section 4(a) of the

Act. As specified in Section 5, Section 4(a) provides the statutory basis for applying the Section


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Finally, the importance of Section 5 to deterring and preventing voting discrimination

was most recently underscored, less than two weeks ago, by Judge Bates, in an opinion joined by

Judge Kollar-Kotelly, concurring in this District Court‘s preclearance ruling regarding South

Carolina‘s photo ID requirement. As Judge Bates described:

[O]ne cannot doubt the vital function that Section 5 of the Voting Rights Act has

played here. Without the review process under the Voting Rights Act, South Carolina‘s voter photo ID law certainly would have been more restrictive. . . .

Congress has recognized the importance of [Section 5‘s] deterrent effect.

. . . The Section 5 process here did not force South Carolina to jump through

unnecessary hoops. Rather, the history of [the photo ID law] demonstrates the

continuing vitality of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.

South Carolina v. United States, 2012 U.S. Dist. LEXIS 146187, at *70-72 (D.D.C. Oct. 10,

2012).

IV. CONGRESS ACTED WITHIN ITS AUTHORITY UNDER THE FOURTEENTH

AND FIFTEENTH AMENDMENTS WHEN IT PROHIBITED PRECLEARANCE

OF VOTING CHANGES THAT HAVE A DISCRIMINATORY EFFECT;

FURTHER, THE RETROGRESSION STANDARD, ON ITS FACE AND AS

APPLIED BY THIS COURT, IS FULLY CONSTITUTIONAL.

A. The Supreme Court Has Definitively Ruled That The Section 5 “Effect”

Standard Does Not Exceed Congress’ Enforcement Powers.

The Supreme Court expressly ruled in City of Rome, and reaffirmed in Lopez, that

Congress acted within its authority under the Reconstruction Amendments when, as part of the

enactment of Section 5 in 1965, it prohibited the implementation of voting changes by covered

jurisdictions that would have a discriminatory effect. Texas argues that Section 5 only may

prohibit purposeful discrimination barred by Section 1 of the Fifteenth Amendment and that

Section 2 of the Amendment, which grants Congress the authority to ―enforce‖ Section 1 ―by

4(b) coverage formula to Section 5, and thus the amendment extended the sunset date for the

coverage formula for the Section 5 preclearance requirement.


- 16 -

appropriate legislation,‖ does not permit the enactment of an ―effect‖ standard. Brief at 1, 3, 16-

18. These arguments are entirely foreclosed by City of Rome and Lopez.

1. City of Rome v. United States.

In City of Rome, the City of Rome, Georgia sought preclearance for several voting

changes, and also challenged the constitutionality of Section 5 on several bases. Its

constitutional claims included the assertion ―that § 1 of the [Fifteenth] Amendment prohibits

only purposeful racial discrimination in voting, and that in enforcing that provision pursuant to

§ 2, Congress may not prohibit voting practices lacking discriminatory intent even if they are

discriminatory in effect.‖ City of Rome, 446 U.S. at 173. The Court squarely upheld the Section

5 ―effect‖ prohibition against this challenge: ―We hold that, even if § 1 of the Amendment

prohibits only purposeful discrimination, the prior decisions of this Court foreclose any argument

that Congress may not, pursuant to § 2, outlaw voting practices that are discriminatory in effect.‖

Id. (footnote omitted).

The Supreme Court provided a detailed exegesis of why its determination was compelled

by ―the prior decisions of this Court.‖ At bottom, the city was asking the Court ―to do nothing

less than overrule our decision in South Carolina v. Katzenbach.‖ The Court reviewed

Katzenbach’s explication of the broad authority granted Congress by the Fifteenth Amendment,

and then discussed why the Court's holding in Katzenbach, upholding the Voting Rights Act's

then temporary ban on literacy tests in covered jurisdictions, demonstrated that the Fifteenth

Amendment grants Congress the authority to ―prohibit voting practices that have only a

discriminatory effect.‖ Id. at 175. In that regard, the Court noted that seven years before its

decision in Katzenbach, in Lassiter v. Northampton County Board of Elections, 360 U.S. 45

(1959), the Court had rejected a claim that, under the Fifteenth Amendment, states were

prohibited from employing ―a literacy test that was fair on its face and was not employed in a


- 17 -

discriminatory fashion.‖ City of Rome, 446 U.S. at 175. Despite this ruling, and without

overruling Lassiter, Katzenbach upheld Congress‘ per se ban on all literacy tests, including those

that Lassiter recognized do not violate the Fifteenth Amendment. Katzenbach so held because,

contrary to Texas‘s claim here, Section 2 of the Amendment authorizes Congress to ―prohibit

state action . . . not violative of § 1‖ when state action ―perpetuates the effects of past

discrimination.‖ Id. at 176.

The Supreme Court in Rome further noted that Congress‘ authority to prohibit voting

measures that have a discriminatory effect also was supported by the Court‘s prior decisions in

Katzenbach v. Morgan, 384 U.S. 641 (1966), and Oregon v. Mitchell, 400 U.S. 112 (1970). In

particular, the Court emphasized that, in Oregon v. Mitchell, it had unanimously upheld a five-

year nationwide ban on literacy tests because, under Section 2 of the Fifteenth Amendment,

Congress properly determined this was an ―appropriate method[] of attacking the perpetuation of

earlier, purposeful racial discrimination, regardless of whether the practices prohibited were

discriminatory only in effect.‖ City of Rome, 446 U.S. at 177.

Applying this same reasoning to Section 5‘s ―effect‖ standard, the Court determined that

Congress likewise had legislated within its constitutional authority finding that, ―Congress could

rationally have concluded that, because electoral changes by jurisdictions with a demonstrable

history of intentional racial discrimination in voting create the risk of purposeful discrimination,

it was proper to prohibit changes that have a discriminatory impact.‖ Id. (footnote omitted).

2. Lopez v. Monterey County.

In Lopez v. Monterey County, the Court considered whether the Section 5 preclearance

requirement applies to voting changes enacted by a State that is not itself covered by Section 5

(California) when the voting changes are to be administered by a county within that State that is

a Section 5 covered jurisdiction (Monterey County). The Supreme Court held that, as a matter


- 18 -

of statutory construction, such changes are subject to preclearance, and then rejected California‘s

claim that this application of Section 5 is unconstitutional.

The Court summarized its constitutional ruling as follows, in terms directly applicable to

the issue posed by Texas: ―Recognizing that Congress has the constitutional authority to

designate covered jurisdictions and to guard against changes that give rise to a discriminatory

effect in those jurisdictions, we find no merit in the claim that Congress lacks Fifteenth

Amendment authority to require federal approval before the implementation of a state law that

may have just such an effect in a covered county.‖ Lopez, 525 U.S. at 283-84. As the Court

explained, ―‗legislation which deters or remedies constitutional violations can fall within the

sweep of Congress‘ enforcement power even if in the process it prohibits conduct which is not

itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to

the States.‘‖ Id. at 282-83 (quoting City of Boerne, 521 U.S. at 518). Furthermore, the Court

explained that its recognition of Congress‘ ―constitutional authority . . . to guard against changes

that give rise to a discriminatory effect‖ flowed directly from its holdings in both Katzenbach

and City of Rome:

The Court in Katzenbach recognized that, once a jurisdiction has been designated,

the Act may guard against both discriminatory animus and the potentially harmful

effect of neutral laws in that jurisdiction. [Citation omitted] In City of Rome, we

thus expressly reaffirmed that, under the Fifteenth Amendment, Congress may prohibit voting practices that have only a discriminatory effect.

Lopez, 525 U.S. at 283 (emphasis in original; internal quotation marks omitted). Accordingly,

the Supreme Court in Lopez clearly stated, contrary to what Texas is now arguing, that the

Section 5 ―effect‖ standard is fully encompassed within Congress‘ enforcement authority.

City of Rome and Lopez were decided correctly and remain correct to this day. Their

constitutional pedigree is found in the historical records of the Fifteenth Amendment, and the

vigorous enforcement acts passed by Congress immediately after the Amendment‘s ratification.


- 19 -

These enforcement acts reflect not only that the Congress that ratified the Fifteenth Amendment

intended to vest itself with all the powers necessary to protect against racial discrimination in

voting, but also that the same Congress enacted legislation designed to be reflexive and

responsive to the various forms of discriminatory acts that the future might bring.10

That

Congress was acutely aware that the fragile gains achieved could easily be rolled back if left

unprotected. Limiting Section 5‘s reach to only intentional discrimination fails to comport with

the Amendment‘s intent to provide Congress a dynamic and adaptive power to deal effectively

with racial discrimination in voting.

3. Texas cannot overcome the controlling Supreme Court precedent

establishing the constitutionality of the Section 5 effect standard.

None of the three reasons Texas offers for why Rome purportedly is not controlling is

persuasive. This Court may not ignore a ruling of the Supreme Court that is directly on point.

First, Texas claims that ―[t]he question whether Congress had the constitutional authority

to impose a ‗nonretrogression‘ requirement in the 2006 reauthorization of section 5 is a separate

question from whether Congress had the authority in the 1975 reauthorization of that law, and it

cannot be controlled by the Supreme Court‘s ruling in City of Rome.‖ Brief at 23-24. The State

then suggests (without any analysis or discussion) that, under the framework articulated in Nw.

Austin, Congress in 2006 was obligated to justify the ―effect‖ standard anew by showing that it is

―‘justified by current needs.‘‖ Brief at 24 (quoting Nw. Austin, 557 U.S. at 203).

This argument misrepresents Congress‘ legislative action in enacting the ―effect‖

standard, wholly misstates the holding in Rome, and cannot be squared with Lopez. The Section

10

For example, recognizing the possibility of backsliding, Congress required that, in the future,

―the constitutions of neither of [the readmitted states] shall ever be so amended or changed as to

deprive any citizen or class of citizens of the United States of the right to vote in said State.‖ An

Act to Admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and

Florida to Representation in Congress, ch. 70, 15 Stat. 73, § 1 (1868).


- 20 -

5 ―effect‖ standard was enacted by Congress in 1965, and the fact that Section 5 includes the

―effect‖ requirement has remained unaltered since then. Thus, while Congress has extended the

time-limited term of the preclearance requirement on four occasions, these enactments did not

involve any reauthorization of the ―effect‖ standard.11

Simply put, the ―effect‖ standard is part

of Section 5 today because it was enacted in 1965, and nothing in the Supreme Court‘s decisions

since then has suggested, let alone held, that a specific reauthorization of the ―effect‖ standard

was undertaken or was required.

City of Rome upheld the constitutionality of the ―effect‖ standard as enacted in 1965 and

without reference to the 1975 reauthorization. City of Rome, 446 U.S. at 173. As described

above, the Court‘s analysis relied entirely on a legal determination as to the scope of Congress‘

authority under § 2 of the Fifteenth Amendment, and the Court did not represent, in any way

whatsoever, that this authority had any relationship to Congress‘ authority to reauthorize Section

5. Accordingly, when the Court did turn to Rome‘s challenge to the 1975 reauthorization later in

its opinion, the Court did not make any reference to the prior discussion concerning the

constitutionality of the ―effect‖ standard. See City of Rome, 446 U.S. at 180-82. Similarly, in

Lopez, the Supreme Court stated that, in light of Katzenbach and Rome, it had definitively and

conclusively held that Section 5 properly includes an ―effect‖ standard, and did not represent, in

any way whatsoever, that the reauthorization of Section 5 in 1982, after Rome and Katzenbach

were decided, could prompt a reexamination of Congress‘ authority to include the ―effect‖

standard in Section 5. Lopez, 525 U.S. at 283. Thus, the State is wrong in asserting that the

11 In 2006, Congress amended Section 5 to alter the manner in which the retrogression standard is

applied to a particular subset of voting changes (e.g., redistricting plans). Shelby County, 679

F.3d at 884. However, that did not involve any amendment to, or reauthorization of, the basic

―effect‖ requirement. 42 U.S.C. § 1973c(b) & (d).


- 21 -

―effect‖ standard is reborn with each reauthorization, and that its constitutionality must be re-

justified with each reauthorization.12

Texas‘s second justification for this Court disregarding Rome – that the Court in Rome

―did not purport to apply the ‗congruence and proportionality‘ standard that must be applied to

legislation that purports to enforce the Reconstruction Amendments‖ – is equally unavailing.

Brief at 24. Putting aside the question whether ―congruence and proportionality‖ governs in this

case, Texas‘s assertion that Rome’s holding is inconsistent with that standard is, again, wrong.

Here, in particular, Texas‘s failure to acknowledge and follow the Supreme Court‘s controlling

decision in Lopez is significant. While it is true that Rome preceded Boerne, and thus could not

have applied ―congruence and proportionality,‖ Lopez was decided after Boerne, and Lopez cites

to Boerne specifically in connection with its reaffirmation of the holdings in Katzenbach and

Rome that Congress may prohibit the preclearance of voting changes with a discriminatory

effect. Lopez, 446 U.S. at 282-83. Moreover, in Boerne itself, the Supreme Court cited with

approval to Rome’s holding that the Section 5 ―effect‖ prohibition is constitutional. City of

Boerne, 521 U.S. at 532. The only conclusion that can be drawn from these Supreme Court

decisions is that the Section 5 ―effect‖ standard is fully consistent with the ―congruence and

proportionality‖ analytic framework.13

12 Texas‘s citation to Nw. Austin does not assist the State in its argument since that case focused

solely on the propriety of Congress‘ decision to extend the term of the preclearance requirement,

and did not involve any question as to the propriety of the ―effect‖ standard. In addition, even if

Texas were correct that the 2006 reauthorization requires an entirely new evaluation of the

constitutionality of the ―effect‖ standard based on a ―current needs‖ assessment, Texas offers no

evidence whatsoever that such an assessment would lead this Court to conclude that the standard

no longer is within Congress‘ constitutional authority.

13 Even on its own terms, Texas‘s ―congruence and proportionality‖ argument regarding the

―effect‖ standard and the 2006 reauthorization is faulty. Although ―congruence and

proportionality‖ requires a detailed review of legislative history to determine whether a


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Third, Texas claims that ―the ‗nonretrogression‘ doctrine of Section 5 has expanded

considerably since City of Rome, and the Court in City of Rome had no occasion to consider the

type of ‗nonretrogression‘ doctrine applied in this case.‖ Brief at 24. In this regard, Texas‘s

assertion that the retrogression analysis somehow has been transformed is supported only by its

complaints regarding how the test was applied by this Court and, as discussed below, Texas is

wrong in suggesting that this Court did anything other than apply the same test that the Supreme

Court first established in Beer. In addition, Texas‘s claim about the application of the

nonretrogression standard to the facts of this case in no way could alter the fact that this Court is

bound by Rome’s holding that Congress properly exercised its authority when it prohibited the

preclearance of voting changes with a discriminatory effect.

4. The Section 5 “effect” standard, as applied to prohibit Texas from

implementing its photo ID requirement, is constitutional.

In addition to claiming that the ―effect‖ standard is facially unconstitutional, Texas

asserts that ―[a]ny judicial interpretation‖ of that standard that ―bars the State of Texas from

enforcing its voter-identification laws in state and local elections . . . is irreconcilable with

Oregon v. Mitchell‖ and therefore is unconstitutional. Brief at 22. The short answer to this is

that, in City of Rome, the Supreme Court specifically relied upon Oregon v. Mitchell in

upholding the constitutionality of the Section 5 ―effect‖ standard. 446 U.S. at 176-77.

congressional prophylactic remedy was based on a pattern of constitutional violations, see

Tennessee v. Lane, 541 U.S. 509, 523-29 (2004); Nevada Dep’t of Human Res. v. Hibbs, 538

U.S. 721, 728-732, 735 (2003), Texas summarily dismisses the evidence Congress gathered in

2005 and 2006 of unconstitutional conduct by covered jurisdictions as being ―beside the point‖

and insufficient based merely on Texas‘s report of its ―aware[ness].‖ Brief at 17-18. Texas does

not engage in any examination of that evidence in its brief.


- 23 -

Therefore, applying that standard to voting changes that are covered by Section 5 – including

Texas‘s photo ID requirement – is fully consistent with Oregon v. Mitchell.14

Texas argues that Oregon v. Mitchell stands for the proposition that the Section 5

―effect‖ standard cannot prohibit Texas (or any other covered state) from implementing a photo

ID requirement unless there are ―credible legislative or judicial findings that photo-identification

requirements [in general] are used to perpetuate unconstitutional discrimination at the polls.‖

Brief at 22. The State‘s logic is as follows: First, Texas notes that if Congress were to enact

legislation that prohibited all states from implementing any photo ID requirement for voting (like

the ban on literacy tests reviewed in Mitchell), that provision would be constitutional under

Mitchell only if it was ―supported by credible legislative findings that photo-identification

requirements were being used to disenfranchise voters on account of race.‖ Id. Second, Texas

asserts that since an application of the Section 5 ―effect‖ standard that prohibits Texas‘s use of a

photo ID requirement would have the same ultimate result – that is, as to Texas and SB 14 – any

application of the ―effect‖ standard that prohibits Texas from implementing a photo ID

requirement must be supported by the same findings that would be needed to support a

legislative ban on all photo ID requirements.

Texas‘s construction of Section 5‘s ―effect‖ prong and the holding in this case is

nonsensical. This Court‘s finding that SB 14 would have had a retrogressive effect on minority

voters in Texas in no way constituted a ruling that all photo ID requirements enacted by Texas,

or by all covered states, are impermissible and, thus, does not require the same justification that

would be required of a broad congressional prohibition on all voting practices of a particular

14 Texas does not dispute that photo ID requirements, including the one it enacted in SB 14, are

subject to the preclearance requirement. See Presley v. Etowah County, 502 U.S. 491, 502

(1992) (Section 5 applies to changes ―in the manner of voting‖); 28 C.F.R. § 51.13(b) (Section 5

applies to ―[a]ny change concerning . . . balloting‖).


- 24 -

type. Indeed, Texas‘s position would transform every Section 5 proceeding from a trial as to the

discriminatory effect of a particular change in one covered state‘s law into a trial as to the

discriminatory effect of all such changes in all covered states‘ laws.

Further, the State‘s assertion – that any application of the ―effect‖ standard barring any

specific voting change must be justified as if it were a per se prohibition on all voting changes of

that type – cannot be squared with, and would effectively neuter, the Supreme Court‘s holding in

City of Rome. There would have been no point to the Court‘s upholding the constitutionality of

the ―effect‖ standard if each case-specific application of that standard would, in turn, also need to

be justified as a constitutional exercise of Congress‘ legislative authority under the

Reconstruction Amendments.

B. The “Retrogression” Definition of the Section 5 “Effect” Standard is

Constitutional.

For 36 years, since the Supreme Court‘s 1976 decision in Beer v. United States, 425 U.S.

130, the Section 5 ―effect‖ standard has been defined as a prohibition on voting changes that

have a retrogressive effect. Since Beer, the retrogression standard has been oft cited and

repeatedly relied upon by the Supreme Court. In Rome, itself, the Supreme Court upheld

Congress‘ authority to prohibit voting changes with a discriminatory effect at the same time that

it relied upon the retrogression test to conclude that the city‘s voting changes were not entitled to

preclearance. City of Rome, 446 U.S. at 185.

Nonetheless, Texas claims that the retrogression standard violates the Equal Protection

Clause of the Fourteenth Amendment and is unconstitutionally vague. Neither of these

arguments can be squared with the Supreme Court‘s adoption of, and long reliance on, this

standard, and both should be rejected by this Court. This Court also should reject Texas‘s

assertion that the retrogression requirement, as applied in this case, is invalid. In Reno v. Bossier


- 25 -

Parish School Board, 520 U.S. 471, 480 (1997) (Bossier I), the Supreme Court declined to

accept appellants‘ proposed redefinition of the ―effect‖ standard in part because that would have

required the Supreme Court ―to call into question more than 20 years of precedent interpreting

§ 5.‖ This Court likewise should reject Texas‘s effort to now call into question more than 36

years of precedent interpreting Section 5.

1. The retrogression standard was established by the Supreme Court,

and this Court is bound by it.

The retrogression standard, at its inception, was a judicial construct that the Supreme

Court deduced in Beer from its reading of Section 5‘s legislative history. Beer, 425 U.S. at 140-

41. At the time of the Beer decision, the statute itself did not define ―effect‖ and included no

reference to retrogression. Since then, Congress twice has reauthorized Section 5 (in 1982 and

2006) without amending the statute; Congress‘ post-Beer reauthorizations, undertaken with full

knowledge of the retrogression test, H. Rpt. No. 109-478 (2006), at 69 (―the benefits to the

minority community under the Beer standard were significant over the last several decades‖)

(2006 reauthorization), S. Rpt. No. 97-417 (1982), at 12 n.31 (discussing the scope of the

retrogression test) (1982 reauthorization), have acted to reaffirm the validity of the Supreme

Court‘s interpretation. See Reno v. Bossier Parish, 528 U.S. 320, 362-63 (2000) (Souter, J.,

dissenting) (Bossier II).

Thus, in challenging the constitutionality of the retrogression definition of Section 5

―effect,‖ Texas at bottom is asserting that it is the Supreme Court that adopted an

unconstitutional interpretation of the statute. As such, however, only the Supreme Court, and not

this Court, could reverse decades of precedent and find the standard now to be unconstitutional.

Moreover, the two most recent Supreme Court decisions addressing the Section 5

substantive standards highlight the continuing validity of the retrogression standard. In Bossier


- 26 -

II, the Supreme Court relied heavily on its retrogression construction of Section 5 ―effect‖ in

construing the scope of the Section 5 ―purpose‖ standard, and held that Section 5 only bars

voting changes adopted with a retrogressive purpose (and does not bar voting changes adopted

with a discriminatory but non-retrogressive purpose). Bossier II, 528 U.S. at 329.15

Given the

centrality of Beer to its holding, the Court concluded that appellants‘ opposition to a

―retrogressive purpose‖ reading of the statute ―[a]t bottom . . . rests . . . upon their opposition to

our holding in Beer,‖ and that ―[a]lthough they do not explicitly contend that Beer should be

overruled, they all but do so . . . .‖ Id. at 333. In response, the Court reaffirmed that Section 5

―effect‖ means retrogression. Id. at 333-36.16

Thus, the Supreme Court, just 12 years ago, fully

and unambiguously endorsed the continuing validity of the retrogression standard.

Even more recently, in 2003, in Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme

Court again examined the retrogression standard, this time to address the manner in which the

standard is to be applied to redistricting plans enacted by covered jurisdictions. The Court began

its analysis by once again stating, without qualification, that the Section 5 ―effect‖ standard bars

voting changes that would have a retrogressive effect. Id. at 477. The Court then went on to

discuss the factors that should be considered in determining whether a redistricting plan is

15 Congress overrode this new statutory interpretation of Section 5 ―purpose‖ in an amendment to

Section 5 that was adopted with the 2006 reauthorization. This amendment specifies that Section

5 ―purpose‖ includes ―any discriminatory purpose.‖ 42 U.S.C. § 1973c(c). Texas does not

challenge the validity of this amendment here. Indeed, Texas is precluded from mounting such a

challenge in this case by the D.C. Circuit‘s ruling in Shelby County, 679 F.3d at 883-84, since the

facts of this case do not implicate the issue of whether Section 5 properly may bar voting

changes that have a non-retrogressive discriminatory purpose.

16 In contrast, the four dissenters in Bossier II concluded that ―Beer was wrongly decided,‖ 528

U.S. at 363, although for reasons of stare decisis the dissenters did not contend that Beer should

be overruled. Id. at 362-63.


- 27 -

retrogressive (id. at 479-84), conclusively indicating again the continuing vitality of the

retrogression standard.17

2. The retrogression standard complies with the Fourteenth

Amendment’s Equal Protection Clause.

Contrary to what Texas argues, the retrogression standard established by the Supreme

Court is fully in accord with the Equal Protection Clause. The State complains, first, that the

standard ―confers asymmetric protections on voters of different races,‖ Brief at 24, noting that it

prohibits voting changes that would make the electoral position of minority voters worse than

before, but does not offer the same protection to white voters. This alleged ―asymmetry,‖

however, reflects the historical and constitutional underpinnings for the Voting Rights Act and

Section 5, and does not work any unfairness to white voters.

As the court of appeals recently explained in Shelby County, Section 5 applies to

jurisdictions that have a history of pervasive discrimination against minority voters, and where

there are patterns of ongoing intentional discrimination. Indeed, Texas is a paradigmatic

example. See supra Part II. The retrogression standard protects minority voters against

―backsliding,‖ Bossier II, 528 U.S. at 335, i.e., from suffering additional and deeper voting

discrimination burdens, and ensures that when ―gains … [are] achieved in minority political

participation . . . [they are] not . . . destroyed through new discriminatory procedures and

techniques." Beer, 425 U.S. at 141 (internal quotation marks and brackets omitted). This is far

from granting any special advantage or privilege to minority voters, but instead provides a

17 Congress also adopted amendments to Section 5 with the 2006 reauthorization that overrode

the Supreme Court‘s new interpretation in Ashcroft of how the retrogression standard applies to

redistricting plans. 42 U.S.C. § 1973c(b) & (d). Texas also does not challenge the validity of

this amendment to the Section 5 substantive standards and, again, Texas is precluded from doing

so here by the D.C. Circuit‘s ruling in Shelby County, 679 F.3d at 883-84, since the facts of this

case do not implicate these amendments.


- 28 -

necessary remedy for persistent and adaptive discrimination that took special hold in parts of our

country. Moreover, as discussed above, the constitutional basis for the ―effect‖ standard is that

―electoral changes by jurisdictions with a demonstrable history of racial discrimination in voting

create the risk of purposeful discrimination.‖ City of Rome, 446 U.S. at 177. This history of

discrimination, plainly, was directed at minority voters and thus the retrogression remedy was

designed to meet a specific demonstrated harm. Congress found during the 2006 reauthorization

that a gap remains in minority access to equal voting rights. Effectively disallowing the use of

the retrogression standard to address this gap, by applying it ―symmetrically,‖ would perpetuate

the present effects of past discrimination. Cf. LULAC v. Perry, 548 U.S. 399, 518 (Scalia, J.,

concurring in the judgment in part and dissenting in part) (―Moreover, the compelling nature of

the State's interest in § 5 compliance is supported by our recognition in previous cases that race

may be used where necessary to remedy identified past discrimination.‖).

The appropriate and constitutional role that the retrogression standard plays, in guarding

against the perpetuation of past discrimination, was well illustrated by the application of the

standard to the voting change at issue in Beer. Beer involved a Section 5 review of a

redistricting plan enacted by the New Orleans city council. At the time, 45 percent of New

Orleans‘ population was African American, and African Americans constituted 35 percent of the

city‘s registered voters. 425 U.S. at 134. Yet, under the existing redistricting plan, none of the

city‘s five districts had a African-American registration majority and no African Americans had

been elected to the city council under that plan. The new plan rectified this discrimination, at

least to some degree, by providing for one district in which African Americans constituted a


- 29 -

majority of the registered voters. Id. at 141-42. Thus, the ―effect‖ analysis was

―straightforward,‖ 425 U.S. at 141: the new plan was not retrogressive.18

The State‘s other complaint about the retrogression standard is that it putatively requires

―legislators in covered states to engage in race-conscious decisionmaking.‖ Brief at 25. By this,

Texas apparently means that Section 5 requires jurisdictions to consider how proposed changes

may affect minority voters so as to ensure that enacted changes do not discriminate against them

on account of race. However, insofar as this accurately may be characterized as ―race-conscious

decisionmaking,‖ that is precisely what is permitted by the Fifteenth Amendment. Again, as the

Supreme Court explained in Rome, the retrogression standard applies to ―jurisdictions with a

demonstrable history of intentional racial discrimination in voting‖ and serves to minimize ―the

risk of purposeful discrimination.‖ City of Rome, 446 U.S. at 177.19

For these reasons, the Supreme Court did not violate the Equal Protection Clause by

establishing the retrogression standard, and by relying upon that standard thereafter.

3. The retrogression standard provides a clear standard for judging the

effect of covered jurisdictions’ voting changes.

Texas engages in an extended and hyperbolic denunciation of the retrogression standard

claiming that it is unconstitutionally vague. Brief at 26-36. The State‘s discussion in this regard

18 It should be noted that many voting changes either are ameliorative or neutral for all voters.

For example, polling place and precinct changes may make voting more convenient for all

voters. Historically, approximately one-third of all voting changes submitted for preclearance

have involved precinct and polling place changes. See http://www.justice.gov/crt/about/vot/

sec_5/changes.php.

19 It also should that be noted that ―preventing retrogression does not require jurisdictions to

violate Shaw v. Reno[, 509 U.S. 630 (1993),] and related cases,‖ as to race-conscious

decisionmaking in redistricting plans. Justice Department advised in its Guidance Concerning

Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, 7472 (Feb. 9, 2011).


- 30 -

is full of conclusory statements, exaggerations, straw arguments, parades of horribles, and

indignant questions. But little or no reasoned analysis is offered.

At the outset, Texas‘s claim that covered jurisdictions do not know how to demonstrate

that their changes are not retrogressive is belied by the fact that the vast majority of voting

changes are precleared. See Shelby County, 679 F.3d at 867. In actuality, covered jurisdictions

have a very high batting average in designing their voting changes so as to not run afoul of the

retrogression standard.

Furthermore, the retrogression standard has a specific, well-recognized meaning, and

there are substantial resources available to jurisdictions to enable them to understand the factors

relevant to the retrogression determination. As to what retrogression means, the Supreme Court

repeatedly has emphasized that the retrogression inquiry is limited to a comparison of the new

voting practice with its predecessor, e.g., Georgia v. Ashcroft, 539 U.S. at 478; Bossier I, 520

U.S. at 478, and that a voting change is retrogressive only when it reduces minority electoral

opportunity (and not when it is neither retrogressive nor ameliorative). City of Lockhart, 460

U.S. 125, 132 (1983); accord 28 C.F.R. 51.54(b) (in order to be retrogressive, a voting change

must make minority voters ―worse off than they had been before the change‖). The Court also

has been careful to distinguish the retrogression standard from the results test set forth in Section

2 of the Voting Rights Act. Georgia v. Ashcroft, 539 U.S. at 478-79, Bossier Parish I, 520 U.S.

at 478-80.

As to how these principles apply to specific types of voting changes, there are (in

addition to the decision in this case) numerous decisions of the Supreme Court and the District of

Columbia District Court that address the application of the retrogression standard to particular

types of voting changes. E.g., South Carolina v. United States, 2012 U.S. Dist. LEXIS 146187


- 31 -

(D.D.C. Oct. 10, 2012) (photo ID requirement); Texas v. United States, 2012 U.S. Dist. LEXIS

121685 (D.D.C. Aug. 28, 2012) (redistrictings); Florida v. United States, 2012 U.S. Dist. LEXIS

115647 (D.D.C. Aug. 16, 2012) (early voting, and voter registrants who change residence

address); New York v. United States, 874 F. Supp. 394 (D.D.C. 1994) (establishment of

additional judgeships); County Council of Sumter County v. United States, 597 F. Supp. 35

(D.D.C. 1984) (method of election); City of Lockhart v. United States, 460 U.S. 125 (1983)

(method of election); City of Port Arthur v. United States, 517 F. Supp. 987 (D.D.C. 1981), aff’d,

459 U.S. 159 (1982) (annexations and method of election). Furthermore, the Attorney General

has set forth the types of factors he considers in conducting retrogression reviews. 28 C.F.R. Pt.

51 subpt. F; Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76

Fed. Reg. 7470 (Feb. 9, 2011).

Texas, however, rejects all of this guidance because, apparently, it objects to any ―effect‖

or retrogression standard where the outcome ―turns on the particular circumstances of each

case.‖ Brief at 34 (internal quotation marks omitted). Instead, Texas believes that the ―effect‖

standard should operate in such a manner that covered jurisdictions would not need to guess, to

any degree whatsoever, whether a particular voting change is or is not retrogressive. Id. Texas

does not explain what type of preclearance system would disregard all facts and have completely

predictable outcomes, but the State‘s argument suggests that it favors some sort of list of per se

preclearance rules that essentially could be administered by a computer instead of human beings

(be they federal judges or the United States Attorney General and his legal staff). But see Brief

at 21 (disputing Congress‘ authority to enact per se rules regarding types of voting practices).

These rules apparently also would need to govern the application of the Section 5 ―purpose‖


- 32 -

standard, since many (if not all) of the State‘s vagueness complaints could apply equally well to

the ―purpose‖ standard.

Texas‘s position is difficult to fathom, to the say the least. It hardly is a novel

proposition in American jurisprudence for the legal validity of actions undertaken by

governmental (and private) actors to be governed by general rules, whose application to the facts

of specific cases is guided by a variety of principles and considerations, and by past applications

of the rules. If the retrogression standard did not follow this model, covered jurisdictions would

have a substantial basis for asserting that Section 5 denies them due process.

Texas vehemently complains that ―[i]t is always possible [for the District of Columbia

District Court or the Attorney General] to say that a covered jurisdiction has ‗failed to carry its

burden‘ of proving nonretrogression . . . .‖ Brief at 26 (emphasis in original). In this regard,

Texas asserts that this Court used the retrogression standard to impose an impossible evidentiary

burden on the State in this case (Brief at 27-29), conjures up a laundry list of putatively

impossible things it ―could have been required to prove‖ in this case if its photo ID requirement

had been different (id. at 30), and ―imagine[s]‖ the types of putatively impossible proofs the

District of Columbia District Court or the Attorney General might require a covered jurisdiction

to provide in order to demonstrate that a variety of different types of voting changes are non-

retrogressive. Id. at 31. But Texas‘s claim of impossibility of proof in this case simply boils

down to Texas‘s belief that, contrary to what this Court found, its evidence was sufficient to

prove the absence of a retrogressive effect.20

And its various other scenarios of putative

20 For example, the State avers that it ―hired a distinguished survey expert to determine the racial

composition of registered voters without photo identification, [and] even the most renowned

survey expert cannot force individuals to participate in a survey, nor can he control that many of

the individuals on DOJ‘s no-match list were unreachable.‖ Brief at 29. Without listing all of the

difficulties with this assertion, the evidence at trial, for example, demonstrated that properly


- 33 -

impossibility are entirely speculative, and are unsupported by any citation to precedent or any

reasoned analysis. As explained above, retrogression is not some open-ended ―I know when I see

it‖ (or, as Texas would have it, ―I know it whenever I feel like it‖) standard, but is a decisional

standard that is well defined and is constrained in a variety of significant ways.21

A further apparent complaint by Texas is that somehow it did not receive fair notice of

how this Court would rule, and that the range of rationales available to this Court to rely upon in

its decision should have been limited by the Attorney General‘s prior administrative objection to

the photo ID requirement and the arguments the Justice Department presented in this litigation.

Brief at 26-28. However, a preclearance lawsuit is considered de novo by the District of

Columbia District Court. See Morris v. Gressette, 432 U.S. 491, 507 n.24 (1977); Shelby County

v. Holder, 811 F. Supp. 2d 424, 431 (D.D.C. 2011); Sumter County v. United States, 555 F.

Supp. 694, 706-07 (D.D.C. 1983). Therefore, this Court is not limited to considering the

Attorney General‘s rationale for denying administrative preclearance. Furthermore, this Court,

like any other court, was free to fashion its decisional theory in accordance with the law and the

facts, and was not bound by decisional theories offered by the parties. And, of course, this Court

designed and executed surveys regularly obtain adequate response rates from the individuals

being surveyed. Moreover, it is irrelevant whose ―fault‖ it was that the surveys conducted by the

State‘s expert had unacceptably low response rates; locating ―fault‖ at one place or another does

not rescue the surveys from the objective fact that their response rates fell ―far short of anything

deemed acceptable in the polling industry.‖ Holder, 2012 U.S. Dist. Lexis 127119 at *69.

21 To the extent that Texas‘s complaint, in part, is that the District of Columbia District Court or

the Attorney General could ignore these constraints, there is an established system in place to

guard against this, which allows for direct appeals from district court determinations to the

Supreme Court, and allows covered jurisdictions to file de novo actions in the district court to

seek preclearance either before seeking Attorney General review or after that review does not

result in preclearance.


- 34 -

was not obligated to tell Texas how it might rule before trial so that Texas could then prepare its

case accordingly.

Finally, it should have come as little surprise to Texas that SB 14 was found to be

retrogressive. Throughout the legislative proceedings leading up to the enactment of SB 14,

Texas was repeatedly put on notice that it was considering a statute that would have a

discriminatory effect on minorities. Texas has never disputed, and this Court found, that ―there

exists a subgroup of registered voters, including minorities, who lack SB 14-approved photo ID.‖

2012 U.S. Dist. Lexis 127119 at *79. Furthermore, Texas was well aware, as this Court found as

a matter of ―undisputed record evidence,‖ that ―racial minorities in Texas are disproportionally

likely to live in poverty‖ and that the burdens associated with obtaining the required photo ID

(including the costs of obtaining the necessary secondary documents and the direct and indirect

costs of going to a Department of Public Safety office to apply for an Election Identification

Certificate) would fall more heavily on the poor and thus on minority voters. Id. at *43.

For these reasons, this Court should reject Texas‘s claim that the retrogression standard is

unconstitutionally vague.22

22

At the conclusion of its vagueness argument, the State offers up an additional complaint

regarding this Court‘s prior ruling allowing various organizations and individuals to intervene,

notwithstanding that this complaint has no relationship to the State‘s vagueness assertions. The

State avers that too many intervenors were allowed to participate. Brief at 36. However, it is

well established that ―[p]rivate parties may intervene in § 5 actions assuming they meet the

requirements of Rule 24 [of the Federal Rules of Civil Procedure],‖ Georgia v. Ashcroft, 539

U.S. at 477, and this Court carefully regulated Intervenors‘ participation to minimize the burden

on the State while still allowing Intervenors to fully participate in this case. Intervenors kept any

duplicative efforts between themselves and the Department of Justice to a minimum. Moreover,

as is evident from this Court‘s opinion, Intervenors‘ witnesses and evidence were carefully

considered by the Court. The question whether, because of this, Texas ultimately may have to

pay some amount of attorneys‘ fees to Intervenors‘ counsel, see Donnell v. United States, 682

F.2d 240 (D.C. Cir. 1982), is for another day. See Local Civil Rule 54.2.


- 35 -

C. The Retrogression Standard, As Applied by This Court to Deny

Preclearance to Texas’s Photo ID Requirement, is Constitutional.

Finally, the State asserts that the manner in which this Court applied the non-

retrogression requirement to the facts of this case was constitutionally impermissible because the

ruling allegedly was not ―congruent and proportional‖ to the prohibition on racial discrimination

in voting contained in the Fifteenth Amendment. Brief at 18-21. The State agrees, as it must,

that under Boerne and the Supreme Court‘s subsequent ―congruence and proportionality‖

decisions, Congress may enact prophylactic remedies for conduct that the Constitution itself does

not prohibit. The State claims, however, that ―[i]t cannot be denied‖ that the Court‘s application

of the retrogression standard falls on the wrong side of the line between permissible and

impermissible prophylactic remedies. Id. at 19. The State‘s certitude, however, is not based on

any of the legal analysis required by Boerne and its progeny. See Lane, 541 U.S. at 521

(―congruence and proportionality‖ test requires analysis of the ―relevant history and pattern of

constitutional violations.‖); Hibbs, 538 U.S. at 728-732, 735. Instead, the State reaches its

conclusion based merely on yet another speculative parade of horribles which, according to the

State, portray where this Court‘s decisional rationale allegedly might lead in the future.

Texas grossly mischaracterizes the nature and scope of this Court‘s preclearance holding.

As another Section 5 panel of this District Court just observed in ruling on South Carolina‘s

photo ID requirement, there is broad agreement on the retrogression standard to be applied to

voting changes that affect access to the ballot. Specifically, the South Carolina court concluded

that the three-judge panel in that case, the three-judge court in the instant case, and the three-

judge panel in the recent Florida Section 5 case – i.e., all panels that have issued Section 5

rulings on voter access provisions in the past two months – found the standard to be the

following: ―A state voting law has a discriminatory retrogressive effect if the law


- 36 -

disproportionately and materially burdens minority voters when measured against the pre-

existing law.‖ South Carolina v. United States, 2012 U.S. Dist. LEXIS at *28 (citing the Court‘s

opinion in this case and the opinion in Florida v. United States, supra).

In applying this standard to Texas‘s photo ID law, this Court properly recognized that

there are at least two ways in which minority voters could be disproportionately affected by

Texas‘s photo ID requirement: minority voters might be disproportionately less likely to possess

the required forms of photo identification; or, even if the ID possession rates among minority and

white voters are the same, it might be more difficult for minority voters without the requisite ID

to obtain the ID than it would be for white voters who lack ID. As the Court is well aware, it

determined that, as to the first of these possible avenues for disproportionality, the evidence was

equivocal as to whether minority voters lack the requisite ID at a higher rate than white voters.

However, as to the second, the Court determined that minority voters lack ID at least at the same

rate as white voters and that, for a variety of reasons, it would be more difficult for minority

voters than white voters without ID to obtain it and thus be able to cast a ballot at the polls that

will be counted.

The State apparently has two problems with the Court‘s decisional theory. At the outset,

it appears that the State is upset because, in its view, the Justice Department and the State

litigated the case based on the ―disproportionate possession‖ approach and not on the

―disproportionate access‖ approach. Whether this is true or not is neither here nor there – the

parties‘ theory or theories of the case do not control the Court‘s theory of decision, and the

Court‘s theory of decision (as described above) is eminently reasonable. Secondly, the State

disagrees that the evidence demonstrates disproportionate access. The State, of course, is

entitled to appeal this Court‘s evaluation of the evidence, but the State cannot convert its


- 37 -

evidentiary disagreements regarding a particular application of an accepted standard into a

dispute of constitutional magnitude regarding the validity of that standard.

Perhaps in recognition of this, the State seeks to portray the dispute as presenting a

constitutional issue by taking the types of evidence the Court relied upon and then hypothesizing

how similar evidence might apply to other voting changes (i.e., this is the State‘s parade of

horribles). But, as this Court emphasized, its ruling was a narrow one: ―we have decided nothing

more than that, in this particular litigation and on this particular record, Texas has failed to

demonstrate that its particular voter ID law lacks retrogressive effect.‖ 2012 U.S. Dist. Lexis

127119 at *95. Thus, this Court specifically disclaimed any effort to specify how similar

evidence might apply to a different voting change enacted by Texas or another covered

jurisdiction, and its holding does not control how any such voting changes may be evaluated in

the future.

In sum, this Court‘s theory of retrogression is unremarkable and the manner in which this

Court applied that standard to the record evidence in this case raises no constitutional issue.23

23 In addition to presenting its concerns regarding this Court‘s analysis of disproportionate access

to the photo ID required by SB 14, the State very briefly expresses several other concerns about

the Court‘s retrogression holding, which appear in the full paragraph located on page 20 of its

brief. First, the State asserts that the Court held that retrogression occurs whenever a voting

change would preclude even just one minority voter from voting. But, as the Court made clear,

its ruling was predicated on its finding that ―a substantial subgroup of Texas voters, many of

whom are African American or Hispanic, lack photo ID.‖ 2012 U.S. Dist. Lexis 127119 at *78.

Second, the State claims that the Court ―has read ‗on account of race or color‘ completely out of

the Fifteenth Amendment.‖ Brief at 20. The State does not explain what this means, but this

Court already has properly rejected the State‘s argument regarding the use of that phrase in

Section 5. 2012 U.S. Dist. Lexis 127119 at **91-93. Finally, the State asserts that the Court‘s

application of the retrogression standard is contrary to Boerne because Boerne allegedly forbids

use of an ―effect‖ analysis for determining the validity of a law. But that, plainly, is not what

Boerne held and, as previously noted, Boerne actually cited with approval to the Supreme

Court‘s decision in Rome upholding the Section 5 ―effect‖ standard. City of Boerne, 521 U.S at

529.


- 38 -

V. CONCLUSION

For the reasons set forth above, Defendant-Intervenors respectfully urge this Court to

grant their cross-motion for summary judgment and to deny the motion for summary judgment

filed by Texas.





Dechert LLP



(609) 955 3222 (phone)





Robert A. Kengle

Lawyers‘ Committee for Civil Rights Under Law



(202) 662-8389 (phone)








New York, NY 10013-1205




Gary Bledsoe










- 39 -


Austin, TX 78701

(512) 322-992 (phone)


Victor L. Goode


4805 Mt. Hope Dr.


(410) 580-5120 (phone)




1507 Nueces St.

Austin, TX 78701

(512) 474 7563 (phone)


Jose Garza


7414 Robin Rest Dr.


(210) 392-2856 (phone)














New York, NY 10013






- 40 -

(212) 965-2200/Fax: (212) 226-7592







One New York Plaza

New York, NY 10004-1980

(212) 859-8000





Attorney at Law



Telephone: 703-628-4673




Brazil & Dunn LLP



Telephone: (281) 580-6310

Facsimile: (281) 580-6362






(202) 503-7696






- 41 -



WI0023)



Atlanta, GA 30303

(404) 523-2721/Fax: (404) 653-0331





Texas

1500 McGowan Street


(713) 942-8146




448256)


Advancement Project



(202) 728-9557







Pueblo Entero




Fund, Inc.



(210) 224-5476/Fax: 210-224-5382



- 42 -









STATE OF TEXAS,

Plaintiff,

v.




Defendants.

Case No. 1:12-cv-00128

DST-RMC-RLW

DEFENDANT-INTERVENORS’ STATEMENT OF MATERIAL FACTS

IN SUPPORT OF CROSS-MOTION FOR SUMMARY JUDGMENT

Pursuant to Fed. R. Civ. P. 56 and Local Civil Rule 7(h), Defendant-Intervenors,

collectively, respectfully submit the following Statement of Material Facts in Support of Cross-

Motion for Summary Judgment.

1. Defendant-Intervenors’ cross-motion for summary judgment is not based upon

any material facts. Specifically, Defendant-Intervenors’ cross-motion does not require review of

the legislative record Congress gathered in 2005 and 2006 in support of its 2006 reauthorization

of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, the legislative record from the

enactment of Section 5 in 1965 or the prior reauthorizations of Section 5 (in 1970, 1975, and


1982), or any additional non-record information. As set forth in Defendant-Intervenors’

Memorandum in Support of Cross-Motion for Summary Judgment, this Court is precluded from

engaging in a de novo review of the constitutionality of the 2006 reauthorization, and is bound

by the decision of the D.C. Circuit in Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012),

upholding the reauthorization. In addition, in resolving the other constitutional arguments made

by Texas, this Court is bound by Supreme Court precedent, including the Court’s decisions in

City of Rome v. United States, 446 U.S. 156 (1980), Lopez v. Monterey County, 525 U.S. 266

(1999), and Beer v. United States, 425 U.S. 125 (1976).

2. Were this Court to disagree with the three-judge panel of this District Court in

Florida v. United States, no. 11-1428, Order at 3 (June 5, 2012) (Doc. 106), and conclude that it

is not bound by Shelby County, the following facts would be material to Defendant-Intervenors’

cross-motion for summary judgment:

a) the legislative record Congress gathered in 2005 and 2006 in support of its

reauthorization of Section 5;

b) an analysis of unpublished cases brought under Section 2 of the Voting Rights

Act, 42 U.S.C. § 1973, that were resolved favorably for plaintiffs since 1982, Shelby County, 679

F.3d at 875, 878 (D.C. Cir. 2012) (discussing that analysis and noting that, while the analysis is

not in the legislative record, a substantial portion of the data on which it relied is in the

legislative record);

c) the number of jurisdictions that have bailed out from Section 5 coverage

following the 2006 reauthorization, id. at 881 (discussing the number of jurisdictions that bailed

out as of May 9, 2012); and


d) court decisions since the 2006 reauthorization addressing discrimination in voting,

including the August 30, 2012 decision of this Court denying preclearance to Texas’ photo ID

requirement, and other recent decisions of this District Court in lawsuits filed by covered

jurisdictions requesting Section 5 preclearance for certain voting changes.

Since Defendant-Intervenors believe there is clear authority for the proposition that

Shelby County is binding precedent, Defendant-Intervenors are not filing, at this juncture, a

detailed summary of the 2005-06 legislative record. See Shelby County v. Holder, no. 1:10-cv-

651 (D.D.C.), doc. 57 (Joint Statement of Material Facts As To Which There Is No Genuine

Issue, filed by defendant-intervenors in that case, providing a 145 page summary of the 2005-06

legislative record). So as not to burden the Court with the unnecessary lodging of an enormous

record, Defendant-Intervenors also are not lodging with the Court the legislative record

documents for the 2006 reauthorization or prior reauthorizations. See Shelby County v. Holder,

no. 1:10-cv-651 (D.D.C.), doc. 61 (Notice of Lodging of Legislative History Documents by

defendant-intervenors in that case). Similarly, Defendant-Intervenors are not filing any

documents in support of non-record information that would be material to a de novo review of

the constitutionality of the 2006 reauthorization of Section 5. Defendant-Intervenors hereby

proffer the legislative record to the Court.





Dechert LLP




(609) 955 3222 (phone)





Robert A. Kengle

Lawyers’ Committee for Civil Rights Under Law



(202) 662-8389 (phone)








New York, NY 10013-1205




Gary Bledsoe



Austin, TX 78701

(512) 322-992 (phone)


Victor L. Goode


4805 Mt. Hope Dr.


(410) 580-5120 (phone)














1507 Nueces St.

Austin, TX 78701

(512) 474 7563 (phone)


Jose Garza


7414 Robin Rest Dr.


(210) 392-2856 (phone)














New York, NY 10013

(212) 965-2200/Fax: (212) 226-7592







One New York Plaza

New York, NY 10004-1980




(212) 859-8000





Attorney at Law



Telephone: 703-628-4673




Brazil & Dunn LLP



Telephone: (281) 580-6310

Facsimile: (281) 580-6362






(202) 503-7696




WI0023)



Atlanta, GA 30303

(404) 523-2721/Fax: (404) 653-0331









Texas

1500 McGowan Street


(713) 942-8146




448256)


Advancement Project



(202) 728-9557







Pueblo Entero




Fund, Inc.



(210) 224-5476/Fax: 210-224-5382










STATE OF TEXAS,

Plaintiff,

v.




Defendants.

Case No. 1:12-cv-00128

DST- RMC-RLW

PROPOSED ORDER

Having reviewed the briefing submitted by all parties on Plaintiff’s Motion and

Defendant’s and Defendant-Intervenors’ Cross-Motions for Summary Judgment on Claim Two

of Texas’s First Amended Expedited Complaint for Declaratory Judgment, and for good cause

having been shown, it is hereby ORDERED that Texas’s Motion for Summary Judgment is

DENIED and Defendant’s and Defendant-Intervenors’ Cross-Motions for Summary Judgment

are GRANTED.

Dated: ______________________________

DAVID S. TATEL

United States Circuit Judge

______________________________

ROSEMARY M. COLLYER

United States District Judge

______________________________

ROBERT L. WILKINS

United States District Judge
