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No. 08-322

 

In the Supreme Court of the United States

 

NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE, APPELLANT

v.

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

BRIEF FOR THE FEDERAL APPELLEE

EDWIN S. KNEEDLER
Acting Solicitor General
Counsel of Record
LORETTA KING
Acting Assistant Attorney
General
NEAL KUMAR KATYAL
Deputy Solicitor General
DOUGLAS HALLWARD-DRIEMEIER
Assistant to the Solicitor
General
STEVEN H. ROSENBAUM
DIANA K. FLYNN
SARAH E. HARRINGTON
T. CHRISTIAN HERREN, JR.
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether appellant, a municipal utility district, is statutorily eligible under 42 U.S.C. 1973b(a) to termi nate its coverage under Section 5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973c.

2. Whether Congress acted within its authority to enforce the constitutional prohibition against discrimi nation in voting when it reauthorized Section 5 of the VRA in 2006, on the basis of an extensive record demon strating that, despite considerable progress under Sec tion 5's remedial framework, discrimination against mi nority voters continues to be a problem in covered juris dictions and that Section 5 remains a valuable tool in preventing, remedying, and deterring such discrimina tion.

In the Supreme Court of the United States

No. 08-322

NORTHWEST AUSTIN MUNICIPAL UTILITY DISTRICT NUMBER ONE, APPELLANT

v.

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

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BRIEF FOR THE FEDERAL APPELLEE

OPINION BELOW

The opinion of the three-judge district court (J.S. App. 1-183) is reported at 573 F. Supp. 2d 221.

JURISDICTION

The judgment of the district court was entered on May 30, 2008 (J.S. App. 184-185). A notice of appeal was filed on July 8, 2008 (J.S. App. 186-192), and the juris dictional statement was filed on September 8, 2008. This Court noted probable jurisdiction on January 9, 2009. The jurisdiction of this Court rests on 42 U.S.C. 1973b(a)(5) and 28 U.S.C. 1253.

STATEMENT

1. The Voting Rights Act of 1965 (VRA), 42 U.S.C. 1973 et seq., has stood as part of our law for over 40 years. Its "direct result" has been "[s]ignificant progress * * * in eliminating first generation barriers ex perienced by minority voters, including increased num bers of registered minority voters, minority voter turn out, and minority representation in Congress, State leg islatures, and local elected offices." Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (2006 Reauthorization), Pub. L. No. 109-246, § 2(b)(1), 120 Stat. 577. Yet "vestiges of discrimination in voting con tinue to exist[,] as demonstrated by second generation barriers constructed to prevent minority voters from fully participating in the electoral process"; the "contin ued evidence of racially polarized voting in each of the jurisdictions covered * * * demonstrates that racial and language minorities remain politically vulnerable, warranting the continued protection of the" VRA. § 2(b)(2) and (3), 120 Stat. 577. These findings were made by a unanimous Senate, a nearly unanimous House of Representatives (390-33), and signed into law by President Bush. J.S. App. 18.

The 2006 reauthorization continued this Nation's sacred commitment to eradicating the effects of its dark est days. In 1965, one hundred years after Appomattox, Congress enacted the VRA after thorough assessment of the intervening history. Congress intended "to banish the blight of racial discrimination in voting, which ha[d] infected the electoral process in parts of our country for nearly a century." South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). While much progress has been made over the last four decades, Congress in 2006 ac knowledged the still painful reality that this blight has not yet been eradicated. Indeed, "[t]he record compiled by Congress demonstrates that, without the continua tion of the [VRA's] protections, racial and language mi nority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by mi norities in the last 40 years." 2006 Reauthorization § 2(b)(9), 120 Stat. 578.

This case concerns Section 5 of the VRA, which pro vides that "[w]henever" a covered jurisdiction "enact[s] or seek[s] to administer any * * * standard, practice, or procedure with respect to voting different from that in force or effect" on its coverage date, it must first ob tain preclearance. 42 U.S.C. 1973c(a). A covered juris diction may seek preclearance for a voting change from the Attorney General or the United States District Court for the District of Columbia. Ibid. Preclearance may be granted only if the jurisdiction demonstrates that the proposed change "neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color" or membership in a language minority group. Ibid.

Section 5 is limited geographically and temporally. It applies only to "areas where voting discrimination has been most flagrant." South Carolina, 383 U.S. at 315. As originally enacted, Section 5 applied to most south ern States. 28 C.F.R. Pt. 51 App. When Congress reau thorized Section 5 in 1975, it amended the coverage for mula to include jurisdictions with a demonstrated his tory of discrimination against language minority voters, including the State of Texas. See Act of Aug. 6, 1975 (1975 Amendments), Pub. L. No. 94-73, Title II, 89 Stat. 400; 40 Fed. Reg. 43,746 (1975).

Since its enactment, the VRA's "bailout" mechanism has permitted jurisdictions to bring a declaratory judg ment action in the District Court for the District of Co lumbia to terminate their coverage. VRA § 4(a), 79 Stat. 438. Prior to 2006, Congress had reviewed and amended the bailout provisions on various occasions. See Voting Rights Act Amendments of 1970, Pub. L. No. 91-285, § 3, 84 Stat. 315; 1975 Amendments § 101, 89 Stat. 400; Vot ing Rights Act Amendments of 1982 (1982 Amend ments), Pub. L. No. 97-205, § 2, 96 Stat. 131.

2. Appellant is a municipal utility district in Travis County, Texas, with an elected board of directors. J.S. App. 18. Because the State of Texas is a covered juris diction, appellant is subject to Section 5. See 28 C.F.R. Pt. 51 App.; 28 C.F.R. 51.6. Since 2004, appellant's elec tions have been conducted jointly with other political entities by Travis County, pursuant to a joint election agreement. J.A. 398-399, 410. Whereas appellant's an nual cost of preclearance compliance averaged $223 be fore 2004, it approaches zero since the 2004 agreement. J.A. 270, 279.

3. Eight days after Congress reauthorized Section 5 in 2006, appellant brought this action in the District Court for the District of Columbia, seeking a bailout or a declaration that Section 5 is unconstitutional. J.S. App. 19. As required by 42 U.S.C. 1973b(a)(5), a three- judge district court was convened. Several individuals and entities intervened as defendants.

The district court granted summary judgment to appellees. J.S. App. 1-183. The court first rejected ap pellant's claim that it was statutorily eligible to bail out of Section 5 coverage. Id. at 20-30. The court noted that the VRA permits only States and their "political subdivi sions" to seek bailout, and that the term "political subdivision" includes only counties or other local gov ernmental entities that conduct voter registration when counties do not. Id. at 21; see 42 U.S.C. 1973c(a).

The district court then considered appellant's argu ment that Congress exceeded its constitutional authority when it reauthorized Section 5. J.S. App. 30-153. The court found at the outset that appellant's challenge was essentially facial in nature. Id. at 31-32, 144. The court then observed that this Court "has articulated two dis tinct standards for evaluating the constitutionality of laws enforcing the Civil War Amendments." Id. at 32. In City of Boerne v. Flores, 521 U.S. 507 (1997), the Court held that when Congress exercises its authority to enforce the Fourteenth Amendment, it has no power to "make a substantive change" in the constitutional stan dard, and that the Court will therefore look for "a con gruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 519-520. But the district court also noted that South Carolina applied a more deferential standard for evaluating Congress's exercise of its Fifteenth Amendment authority. J.S. App. 35.

The district court concluded that South Carolina provided the appropriate standard for evaluating the continuing validity of VRA Section 5, but applied both standards out of an abundance of caution. J.S. App. 45- 50, 118-119. After engaging in a thorough review of the "massive amount of evidence Congress collected," the court found "no doubt that despite the 'undeniable' polit ical progress made by minorities, 'Congress could ratio nally have concluded' that it was necessary to extend section 5." Id. at 118 (quoting City of Rome v. United States, 446 U.S. 156, 177, 181 (1980)). The court also held that, under Boerne's congruence-and-proportional ity standard, Congress had acted well within its consti tutional authority. Id. at 118-144.

SUMMARY OF ARGUMENT

This case concerns the intersection of two central aspects of the Constitution: the right to vote and the Reconstruction Amendments' prohibitions against racial discrimination. This Court has described voting as the right "preservative" of all others. Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). For more than four decades, the VRA has embodied the Nation's solemn commitment to protect this right, which is the cornerstone of our de mocracy. Accordingly, this Court has upheld the very provision at issue here, Section 5 of the VRA, on four separate occasions. Lopez v. Monterey County, 525 U.S. 266, 282-285 (1999); City of Rome v. United States, 446 U.S. 156, 177-178 (1980); Georgia v. United States, 411 U.S. 526, 534-535 (1973); South Carolina v. Katzenbach, 383 U.S. 301, 337 (1966).

In upholding Section 5 of the VRA, the Court has observed that "Congress may use any rational means to effectuate the constitutional prohibition of racial dis crimination in voting," and has specifically held that "Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States" in enacting Section 5. South Carolina, 383 U.S. at 324. The Court has repeatedly highlighted the lengthy congressional deliberations and factfinding that preceded the VRA's enactment and has singled out the geographic and temporal limitations of the Act to em phasize its remedial nature. The 2006 reauthorization was likewise the product of extensive legislative consid eration, and it retains the limiting features that ensure the statute is targeted where it is most necessary.

I. One of the features of Section 5 of the VRA that this Court has emphasized as embodying the provision's carefully tailored remedial framework is its "bailout" mechanism. Notably, Congress has expanded that fea ture since the VRA's enactment to increase the number of jurisdictions eligible for bailouts. Nevertheless, ap pellant here seeks a further expansion that the statutory text will not bear. The district court correctly held that only a "political subdivision" as defined in the statute may bail out of coverage. Appellant concedes that it does not satisfy that statutory definition, and its request to bail out was properly denied.

II. a. Appellant's attack on the constitutionality of VRA Section 5's reauthorization also fails. Appellant asserts that there is a conflict between the VRA and this Court's recent pronouncements regarding Congress's Fourteenth Amendment enforcement powers in a line of cases beginning with City of Boerne v. Flores, 521 U.S. 507 (1997). But nothing in Boerne retreats from what this Court repeatedly has said about Section 5 of the VRA. To the contrary, Boerne specifically reaffirmed the constitutionality of this provision, singling it out as a paradigmatic example of Congress's appropriate exer cise of its enforcement authority. Id. at 532-533. As this Court has recognized, the VRA, unlike the statute at issue in Boerne, was not an attempt to redefine constitu tional rights or to encroach upon the Court's power to say what the law is, but rather represents Congress's response to a century of rampant discrimination that denied the voting rights of racial minorities in direct violation of the explicit mandate of the Fifteenth Amendment.

Appellant, at bottom, attempts to set up a strict dichotomy between the deferential review this Court applied in South Carolina and its progeny and the more searching congruence-and-proportionality review in Boerne. But that dichotomy is false. In both lines of cases, the Court is answering the same question: Is Congress enforcing constitutional protections through appropriate means? In Boerne, the Court articulated the congruence-and-proportionality analysis to discern whether Congress was enforcing an established right- as it is empowered to do under the Constitution-or whether it was attempting to redefine the Fourteenth Amendment's meaning-a power vested in the judicial Branch. 521 U.S. at 529-536. But both lines of cases agree that where, as here, Congress seeks to enforce a right that is at the core of the protection afforded by the Reconstruction Amendments, this Court's review of the appropriateness of Congress's chosen method of protec tion is highly deferential.

B. The 2006 reauthorization did not transmute VRA Section 5 from a remedy to a redefinition of constitu tional rights. Appellant does not even challenge the few substantive changes Congress made. Most importantly, Congress maintained all of the features of Section 5 that this Court has singled out as demonstrating its remedial nature, including its limited application to those jurisdic tions with the worst histories of racial discrimination in voting, a sunset date for the provision as a whole, and a mechanism by which States or political subdivisions that have fully complied with Congress's remedy can termi nate the provision's coverage.

Of course, the question Congress faced in 2006 was not whether to impose the remedial framework of Sec tion 5 preclearance as an initial matter, but whether to retain the remedy already in place. The immense record amassed by Congress provides ample evidence that Sec tion 5 has played, and continues to play, a critical role in preventing and deterring discriminatory electoral changes. It has, moreover, helped to preserve the hard- won progress minority voters have achieved over recent decades in having their electoral voices heard.

ARGUMENT

I. ONLY THE STATE OF TEXAS OR TRAVIS COUNTY MAY APPLY TO TERMINATE APPELLANT'S COVERAGE UN DER SECTION 5

Appellant contends (Br. 2, 14-26) that, because it has not engaged in any voter discrimination, it is entitled to terminate its Section 5 coverage. That argument is fore closed both by the VRA's text and by decisions of this Court.

A. The Text Of Section 4(a) Forecloses Appellant's Argu ment That It Is Entitled To Seek Termination of Cover age

As originally enacted in 1965, Section 4(a) permitted only two categories of jurisdictions to seek bailout: (1) designated States, and (2) "political subdivision[s]" separately designated for coverage where the State had not been. VRA § 4(a), 79 Stat. 438 (42 U.S.C. 1973b(a)(1) (Supp. I 1965)). Section 14(c)(2) of the Act has always defined a "political subdivision" to be "any county or parish, except that where registration for vot ing is not conducted under the supervision of a county or parish, the term shall include any other subdivision of a State which conducts registration for voting." 42 U.S.C. 1973l(c)(2). Appellant acknowledges (Br. 21) that it does not qualify under either of the two original bailout cate gories. See J.A. 419-420, 437.

Instead, appellant (Br. 15-19) looks to the 1982 Amendments for support. In 1982, Congress added a third type of jurisdiction eligible for bailout: "any politi cal subdivision of [a covered] State * * * though such [coverage] determinations were not made with respect to such subdivision as a separate unit." § 2(b)(2), 96 Stat. 131 (42 U.S.C. 1973b(a)(1)). That expansion per mitted a "political subdivision" within a designated State to apply for termination. Appellant, however, does not qualify under this new category.

As noted above, Section 14(c)(2) of the VRA defines the term "political subdivision" as "any county or par ish" or certain other entities that "conduct[] registration for voting" when the county does not. 42 U.S.C. 1973l(c)(2). Because appellant is not a "political subdivi sion" as so defined, the district court correctly held that appellant is ineligible to seek bailout. J.S. App. 20-30. See Burgess v. United States, 128 S. Ct. 1572, 1577 (2008).

That conclusion is confirmed by the statutory struc ture. The 1982 Amendments added the new category of "political subdivision[s]" eligible to bail out as a clause within the first sentence of Section 4(a), situated be tween the clauses that identify the two categories that were originally eligible-a designated State and a desig nated "political subdivision." See 42 U.S.C. 1973b(a)(1). As discussed above, it is undisputed that the latter ref erence to designated "political subdivision[s]" reaches only subdivisions as defined in Section 14(c)(2). Con gress is presumed to have intended "political subdivi sion" to have the same meaning in the new clause. Brown v. Garner, 513 U.S. 115, 118 (1994). Indeed, Con gress modified the new reference to "political subdivi sion" with the phrase "though such [coverage] determi nations were not made with respect to such subdivision as a separate unit," 42 U.S.C. 1973b(a)(1), thereby con firming that it refers only to a "political subdivision" of a type as to which a coverage determination could have been made under Section 4(b), 42 U.S.C. 1973b(b).

Moreover, the 1982 Amendments provide that the "State or political subdivision" seeking bailout must demonstrate that both it and "all governmental units within its territory" have complied with Section 5. 42 U.S.C. 1973b(a)(1)(D), (E), (F), and (a)(3). This lan guage establishes that smaller "governmental units" are covered under Section 5 because they are part of a cov ered State or "political subdivision." See United States v. Board of Comm'rs, 435 U.S. 110, 127 (1978) (Sheffield) ("The reference to 'State' in § 5 includes political units within it."); id. at 129 ("[A]ll political units within" desig nated political subdivisions are covered). It further indi cates that those smaller "governmental units" are not themselves eligible to bail out.

The legislative history of the 1982 Amendments con firms that only a "political subdivision" that satisfies Section 14(c)(2)'s definition qualifies under the new cate gory. H.R. Rep. No. 227, 97th Cong., 1st Sess. 2 (1981) (1981 House Report) ("The standard for bail-out is broadened to permit political subdivisions, as defined in Section 14(c)(2), in covered states to seek bail out al though the state itself may remain covered."); S. Rep. No. 417, 97th Cong., 2d Sess. 2 (1982) (1982 Senate Re port). That history reflects Congress's determination that "[t]owns and cities within counties may not bailout separately" because, "[a]s a practical matter * * * we could not expect that the Justice Department or private groups could remotely hope to monitor and to defend the bailout suits." Id. at 57 n.192, 69; 1981 House Report 41.

Longstanding regulations implementing the VRA, 52 Fed. Reg. 486 (1987), which are entitled to "substantial deference," Lopez, 525 U.S. at 281, similarly provide that, aside from designated States and separately cov ered "political subdivision[s]," only "political subdivi sion[s]"-as defined in Section 14(c)(2) of the Act- within fully covered States may apply for bailout. 28 C.F.R. 51.2, 51.5. Because Congress made no change when it reauthorized the VRA in 2006, it is presumed to have endorsed that interpretation. See Lorillard v. Pons, 434 U.S. 575, 580 (1978).

B. This Court's Decisions Confirm That Appellant's Sec tion 5 Coverage Status Depends On That Of The State Or County In Which It Is Located

Brushing aside all relevant interpretive sources to the contrary, appellant argues (Br. 17-20) that under this Court's decisions in Sheffield and Dougherty County Board of Education v. White, 439 U.S. 32 (1978), the definition of "political subdivision" in Section 14(c)(2) applies only to coverage determinations under Section 4(b). Those decisions hold that Section 5's pre clearance requirements apply not only to the designated "State" or "political subdivision," but to any governmen tal unit within such a designated entity. See Sheffield, 435 U.S. at 127; Dougherty County, 439 U.S. at 44 (ap plying Sheffield to school board). According to appellant (Br. 20), Sheffield and Dougherty County necessarily rested on the conclusion that a smaller governmental unit like appellant is a "political subdivision" of a desig nated State as that phrase is used in Section 5, 42 U.S.C. 1973c(a), and that, by parity of reasoning, appellant is also a "political subdivision" eligible to apply for termi nation under Section 4(a)(1), 42 U.S.C. 1973b(a)(1).

The Court rejected appellant's reading of Sheffield in City of Rome. It explained that Sheffield "did not hold that cities such as Rome are 'political subdivisions' under §§ 4 and 5." City of Rome, 446 U.S. at 168 (em phasis added). To the contrary, Sheffield held that, in light of the statutory structure and purposes, "§ 5's pre clearance requirement for electoral changes by a cov ered 'State' reached all such changes made by political units in that State." Ibid.; see Sheffield, 435 U.S. at 127 ("[T]he reference to 'State' in § 5 includes political units within it.").

Appellant places considerable weight on a footnote in Sheffield commenting that "Congress's exclusive objec tive in § 14(c)(2) was to limit the jurisdictions which may be separately designated for coverage under § 4(b)." 435 U.S. at 130 n.18. On that basis, appellant argues (Br. 18-21) that Sheffield held that the statutory defini tion of "political subdivision" in Section 14(c)(2) does not apply beyond Section 4(b) and that Congress would therefore have understood the definition not to control when it used that term in the 1982 expansion of Section 4(a)'s bailout provision. But appellant misreads Shef field. Footnote 18 merely reiterated the Court's conclu sion that the definition of "political subdivision" in Sec tion 14(c)(2) does not "limit[] the scope of § 5." 435 U.S. at 126 (emphasis added). In other words, even though governmental units such as appellant are not "political subdivision[s]" as defined in the Act, the Act reaches them because the "reference to 'State' in § 5 includes political units within it." Id. at 127.

Even if Sheffield's footnote 18 were ambiguous, City of Rome made clear that Sheffield "did not hold that cities * * * are 'political subdivisions' under §§ 4 and 5," or that the phrase "political subdivision" as used in those sections has any meaning other than that given by Section 14(c)(2). 446 U.S. at 168; id. at 168 n.5 (quoting statutory definition of "political subdivision"). Most sig nificantly, whereas Sheffield "did not even discuss the bailout process," City of Rome specifically held that a "city is not a 'political subdivision' for purposes of § 4(a) 'bailout.'" Id. at 168. Thus, when Congress enacted the 1982 Amendments, it necessarily understood that the statutory definition of "political subdivision" would ap ply to that phrase in the amended Section 4(a).

Appellant insists (Br. 23-26) that the Court must nonetheless interpret Section 4(a) to permit jurisdic tions smaller than counties to apply for bailout or risk imperiling the constitutionality of Section 5. The canon of constitutional avoidance "has no application in the absence of statutory ambiguity," United States v. Oak land Cannabis Buyers' Coop., 532 U.S. 483, 494 (2001), and, as explained above, Section 4(a) is not ambiguous.

In any event, reading the statute according to its terms does not raise a serious constitutional question. See pp. 15-55, infra. This Court has never suggested that the constitutionality of Section 5 was dependent upon every jurisdiction subject to preclearance being provided an avenue to bail out. Indeed this Court has upheld Section 5 when the bailout standard was far stricter than it is now, and even in the face of a constitu tional challenge in City of Rome by an entity subject to Section 5 that could not seek bailout. City of Rome, 446 U.S. at 167; id. at 193 (Stevens, J., concurring). The text of both the Fourteenth and Fifteenth Amendments refer to "any State," and Congress therefore may properly choose to exercise its enforcement power at that level, or at a level that encompasses "political subdivision[s]" as defined in the VRA, but not still smaller governmental units.

II. AS THIS COURT HAS REPEATEDLY HELD, SECTION 5 OF THE VRA IS "APPROPRIATE LEGISLATION" TO ENFORCE THE CONSTITUTION'S EXPRESS PROHIBI TION AGAINST RACIAL DISCRIMINATION IN VOTING

Beginning in South Carolina, this Court has upheld the constitutionality of Section 5 of the VRA on four sep arate occasions. See p. 6, supra. Appellant insists that this Court's decision in Boerne alters the Court's conclu sions. But Boerne itself took great care to single out Section 5 of the VRA as the paradigmatic example of Congress's appropriate use of the enforcement power. 521 U.S. at 518, 525-526 (noting Court's continuous rec ognition of necessity for VRA's "strong remedial and preventive measures to respond to the widespread and persisting deprivation of constitutional rights resulting from this country's history of racial discrimination").

As the district court emphasized, Section 5 of the VRA is justified under the strictest reading of Boerne, and therefore a fortiori under the more deferential terms in which this Court has characterized its review of that Section in the past. J.S. App. 118-119. Indeed, even when applying Boerne's congruence-and-propor tionality test, the Court has compared other statutes to VRA Section 5's example. See, e.g., Tennessee v. Lane, 541 U.S. 509, 519 n.4 (2004); Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 737-738 (2003); Board of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 373 (2001) (characterizing Section 5 as a "detailed but lim ited remedial scheme designed to guarantee meaningful enforcement of the Fifteenth Amendment in those areas of the Nation where abundant evidence of States' sys tematic denial of those rights was identified"). Indeed, the Court in Lopez specifically quoted Boerne in the course of upholding Section 5 of the VRA. 525 U.S. at 282-283 (quoting Boerne, 521 U.S. at 518). What was permissible in Lopez is permissible today, particularly in the wake of the updated, and near-unanimous, judg ment by both political Branches in 2006 that Section 5 remains necessary to prevent violations of the Four teenth and Fifteenth Amendments.

A. The Court Applies A Deferential Standard Of Review When Congress Is Enforcing, Not Reinterpreting, Con stitutional Guarantees At The Heart Of The Reconstruc tion Amendments

1. Congress's authority to enforce the Reconstruction Amendments' voting guarantees is as broad as that under the Necessary and Proper Clause

The text of the Fourteenth and Fifteenth Amend ments vests Congress with the "power to enforce" their substantive protections "by appropriate legislation." U.S. Const. Amend. XIV, § 5; id. Amend. XV, § 2. See also id. Amend. XIII, § 2. Those words were the delib erate product of the Reconstruction Amendments' Fram ers' recognition that the Fifteenth Amendment's prohi bition on States denying "[t]he right of citizens * * * to vote * * * on account of race," id. Amend. XV, § 1, and the Fourteenth Amendment's protections against racial discrimination would require broad new legisla tive powers.

The Amendments' enforcement provisions constitute "'a positive grant of legislative power' to Congress" that this Court has consistently described in "broad terms." Boerne, 521 U.S. at 517 (quoting Katzenbach v. Morgan, 384 U.S. 641, 651 (1966)). Boerne itself quoted this Court's early pronouncement:

Whatever legislation is appropriate, that is, adapted to carry out the objects the [Reconstruction] amend ments have in view, whatever tends to enforce sub mission to the prohibitions they contain, and to se cure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

Id. at 517-518 (quoting Ex parte Virginia, 100 U.S. 339, 345-346 (1879)).

The use of the word "appropriate" in the Amend ments' enforcement clauses is significant. As Ex parte Virginia suggested, and South Carolina made explicit, 383 U.S. at 326-327, that phrasing echoed Chief Justice Marshall's classic statement in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), of Congress's broad au thority under the Necessary and Proper Clause, U.S. Const. Art. I, § 8, Cl. 18:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropri ate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

McCulloch, 17 U.S. (4 Wheat.) at 421. Accordingly, "the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution." Ibid.

Those who adopted the Reconstruction Amendments were deeply familiar with McCulloch and relied on it in invoking Congress's new powers. See Steven A. Engel, Note, The McCulloch Theory of the Fourteenth Amend ment: City of Boerne v. Flores and the Original Under standing of Section 5, 109 Yale L.J. 115 (1999). Most notably, Congress relied on McCulloch in enacting Sec tion 1 of the Civil Rights Act of 1866, pursuant to the Thirteenth Amendment's enforcement clause. Ch. 31, 14 Stat. 27 (42 U.S.C. 1982). As this Court pointed out, the legislation's floor manager, Representative Wilson, "re called the celebrated words of Chief Justice Marshall in McCulloch" in "urging that Congress had ample author ity to pass the pending bill." Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443 (1968). Wilson quoted McCulloch, 17 U.S. (4 Wheat.) at 423:

Where the law is not prohibited, and is really cal culated to effect any of the objects intrusted to the Government, to undertake here to inquire into the degree of its necessity, would be to pass the line which circumscribes the judicial department and to tread on legislative ground.

Cong. Globe, 39th Cong., 1st Sess. 1118 (1866). See id. at 1836 (Rep. Lawrence) ("[T]he degree of necessity is a question of legislative discretion, not of judicial cogni zance.") (citation omitted).

This Court, consistent with McCulloch's broad stan dard, has repeatedly reaffirmed that Congress is "enti tled to much deference" in "determin[ing] whether and what legislation is needed to secure the guarantees" of the Reconstruction Amendments. Boerne, 521 U.S. at 536 (quoting Morgan, 384 U.S. at 651). The Constitution commits to Congress the task of "assess[ing] and weigh [ing] the various conflicting considerations-the risk or pervasiveness of the discrimination in governmental services, the effectiveness of eliminating the state re striction on the right to vote as a means of dealing with the evil, the adequacy or availability of alternative reme dies, and the nature and significance of the state inter ests that would be affected by" the federal legislation. Morgan, 384 U.S. at 653. As this Court's precedents explain, deference to Congress is highest when it enforc es the core protections of the Reconstruction Amend ments. "It is not for [the Court] to review the congres sional resolution of these factors. It is enough that [the Court] be able to perceive a basis upon which the Con gress might resolve the conflict as it did." Ibid.; see Civil Rights Cases, 109 U.S. 3, 14 (1883).

So, for example, this Court's decisions have consis tently applied McCulloch in examining the scope of Con gress's powers under the enforcement clauses in the Reconstruction Amendments to address racial discrimi nation. "Congress' authority under § 2 of the Fifteenth Amendment" is "no less broad than its authority under the Necessary and Proper Clause." City of Rome, 446 U.S. at 175; Jones, 392 U.S. at 439 (Thirteenth Amend ment "clothed 'Congress with power to pass all laws necessary and proper for abolishing all badges and in cidents of slavery in the United States.'") (quoting Civil Rights Cases, 109 U.S. at 20); South Carolina, 383 U.S. at 326 (McCulloch provides the "basic test to be applied in a case involving § 2 of the Fifteenth Amendment"); see also Lane, 541 U.S. at 561 (Scalia, J., dissenting) (noting the "expansive" construction given the enforce ment clauses with respect to measures directed against "racial discrimination"). Accordingly, with respect to Section 5 of the VRA, the Court has specifically upheld Congress's power to reach "voting practices that have only a discriminatory effect." Lopez, 525 U.S. at 266 (quoting City of Rome, 446 U.S. at 175); see South Caro lina, 383 U.S. at 334.

Even outside the context of racial discrimination, Congress "is not confined to * * * merely parrot[ing] the precise wording of the" constitutional prohibition itself. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 81 (2000). Rather, it may "prohibit[] a somewhat broader swath of conduct, including that which is not itself for bidden by the Amendment's text." Ibid. For example, Congress may "enact prophylactic legislation proscrib ing practices that are discriminatory in effect, if not in intent." Lane, 541 U.S. at 520.

2. Boerne recognizes that substantial deference is owed to legislation that enforces, and does not reinterpret, core constitutional guarantees

a. Appellant dismisses (Br. 39) McCulloch as "dic tum," contending that Boerne requires legislation to be struck down if not "carefully tailored to the temporal, geographic, and other contours of predicate violations of substantive rights" protected by those Amendments. Id. at 37. But Boerne and succeeding cases held only that Congress lacks the authority, under the guise of enforc ing the Fourteenth Amendment, to "substantively rede fine the States' legal obligations." Kimel, 528 U.S. at 88- 89; see Boerne, 521 U.S. at 532. Those cases did not in volve legislation, such as the VRA, aimed at remedying and deterring violations of the core constitutional right, explicitly set forth in the Fifteenth Amendment itself, that the right to vote not be "denied or abridged * * * on account of race, color, or previous condition of servi tude." U.S. Const. Amend. XV, § 1.1

It is one thing when Congress acts to overrule a con stitutional decision of this Court. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (It is the judiciary's power "to say what the law is."). It is quite another when Congress accepts this Court's decisions as defining the parameters of a constitutional right and then acts to prevent violations of that right. In the latter situation, Congress is enforcing a substantive guarantee as de fined by this Court, and the only question is whether Congress's means are "appropriate." When Congress acts in that sphere, McCulloch affords broad deference to its judgments about what remedies are appropriate.2 See City of Rome, 446 U.S. at 175; Morgan, 384 U.S. at 651 (Congress is entitled "to exercise its discretion in determining whether" legislation is needed); South Carolina, 383 U.S. at 326; see also Lane, 541 U.S. at 561 (Scalia, J., dissenting). Boerne recognized, for example, that when Congress adheres to stare decisis (as it did in reauthorizing the VRA), it is not redefining a right. See Boerne, 521 U.S. at 536.

b. Boerne addressed a concern that arises in the context of the Fourteenth Amendment's broad protec tions of, inter alia, "equal protection" and "life, liberty, or property." U.S. Const. Amend. XIV, § 1. Because such protections are phrased at a high level of general ity, encompassing or incorporating a broad array of con stitutional rights (some protected by strict scrutiny and others by rational basis review), legislation purporting to enforce them can raise the question whether Con gress has attempted to "decree the substance of the Fourteenth Amendment's restrictions" rather than "en force" them. Boerne, 521 U.S. at 519. The congruence- and-proportionality test arose out of such circum stances, providing a method to determine whether Con gress has crossed "the line between measures that rem edy or prevent unconstitutional actions and measures that make a substantive change in the governing law." Id. at 519-520; see Lane, 541 U.S. at 539 (Rehnquist, C.J., dissenting).

Where those concerns are not present, there is no occasion for heightened review to identify instances of congressional redefinition of substantive constitutional provisions. In contrast to the full present-day sweep of the Fourteenth Amendment, for example, the Fifteenth Amendment's text tightly focuses on race and voting. That focus by its nature constrains Congress's enforce ment to the intersection of those subjects, thereby ren dering the concerns addressed in Boerne inapposite. The Thirteenth Amendment likewise has a closely cir cumscribed substantive prohibition. And the Court has recognized that Congress possesses broad discretion in enforcing the Thirteenth Amendment, and upheld, one hundred years after the Civil War, 42 U.S.C. 1982's broad prohibitions against racial discrimination in pri vate property transactions because Congress had identi fied "badges and incidents" of slavery and "it is for Con gress to adopt such appropriate legislation as it may think proper." Jones, 392 U.S. at 440, 441 (quoting Cong. Globe, 39th Cong., 1st Sess. at 322 (remarks of Sen. Trumbull)).3

Accordingly, from South Carolina forward, this Court has not invalidated legislation for straying beyond Congress's enforcement power when such legislation concerned ensuring the rights of racial minorities that the Thirteenth and Fifteenth Amendments specify and this Court has recognized. See Jones, 392 U.S. at 437- 444 (Thirteenth Amendment, private property discrimi nation); Georgia, 411 U.S. at 538 & n.9 (Fifteenth Amendment, voting); City of Rome, 446 U.S. at 173-178 (same); Lopez, 525 U.S. at 282-287 (same). Similarly, when Congress has acted to prohibit racial discrimina tion respecting fundamental rights under the Four teenth Amendment, where this Court subjects State action to the strictest of scrutiny, Congress's enforce ment legislation has been upheld. See Morgan, 384 U.S. at 652-658 (Fourteenth Amendment, voting); Oregon v. Mitchell, 400 U.S. 112, 118 (1970) (opinion of Black, J.) (Fourteenth and Fifteenth Amendments, voting).

On the other hand, where the Court has struck down legislation as beyond Congress's Fourteenth Amend ment enforcement power, the Court was not only exam ining legislation that was outside of the heartland of the Reconstruction Amendments, but also was facing a situ ation in which the Court found that Congress was at tempting to "make a substantive change in the govern ing law." Boerne, 521 U.S. at 519. In Boerne, for exam ple, the Court concluded that the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq., was enacted "in direct response to" this Court's decision in Employ ment Division of Human Resources v. Smith, 494 U.S. 872 (1990), and attempted a "substantive alteration" of Smith's First Amendment holding. Boerne, 521 U.S. at 512, 534.

The Court has similarly invalidated attempts to sub ject States to private damages claims under a national regulatory scheme, where the Court had already held that the Constitution permitted States to engage in the targeted conduct. In Kimel, for example, the Court no ted that Congress attempted to "elevate[] the standard for analyzing age discrimination to heightened scrutiny" and thereby "substantively redefine the States' legal obligations with respect to age discrimination." 528 U.S. at 88-89. Similarly, in Garrett, the Court noted with respect to Title I of the Americans with Disabilities Act (ADA), 42 U.S.C. 12111 et seq., that Congress had at tempted "to rewrite the Fourteenth Amendment law laid down by this Court in [City of] Cleburne [v. Cle burne Living Center, Inc., 473 U.S. 432 (1985)]." Gar rett, 531 U.S. at 374; see also Florida Prepaid Postsec ondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 640-643 (1999).

c. Even when applying the congruence-and-propor tionality standard, the Court has never invalidated a statute securing rights that this Court's decisions recog nize as entitled to heightened protection. For example, the Court has upheld Acts of Congress remedying gen der discrimination and the denial of judicial access, which receive heightened Fourteenth Amendment pro tection. In Hibbs, the Court upheld the family leave provisions of the Family and Medical Leave Act of 1993 (FMLA), 29 U.S.C. 2601 et seq., as appropriate means of enforcing the Fourteenth Amendment's prohibition against "gender-based discrimination." Hibbs, 538 U.S. at 728. The Court explained that, because Congress was enforcing a right subject to heightened constitutional review, it was "easier" for Congress to demonstrate the need for legislation enforcing that right. Id. at 736. Similarly in Lane, the Court upheld Title II of the ADA, 42 U.S.C. 12131 et seq., as applied to the right of citizens with disabilities to have access to courts, a right subject to heightened constitutional protection. Lane, 541 U.S. at 528-529.4

Thus, the Court does not subject every statute that enforces the Reconstruction Amendments to a form of heightened review. As this Court explained in Hibbs, 538 U.S. at 736, where Congress targets state action that is presumptively invalid-e.g. state action that in fringes on rights subject to heightened constitutional protection-the Court applies a deferential standard of review. In such cases, the Court examines whether Con gress reasonably determined there was a need for such legislation, but does not reexamine the historical evi dence on which Congress relied to make an independent determination of that need. Compare South Carolina, 383 U.S. 308-315, Morgan, 384 U.S. at 651-656, City of Rome, 446 U.S. at 181-182, Hibbs, 538 U.S. at 729-736, and Lane, 541 U.S. at 524-529, with Boerne, 521 U.S. at 530-531, Kimel, 528 U.S. at 89-91, and Garrett, 531 U.S. at 368-372.5

Nor does the Court need to engage in heightened review respecting each feature of a remedial scheme once the Court has recognized in a prior decision con cerning the statute that Congress has not attempted, as a substantive matter, to redefine the constitutional stan dard. For example, this Court did not invoke "congru ence and proportionality" in upholding Section 5 of the VRA when its constitutionality was last before this Court, even though its decision post-dated Boerne by two years. See Lopez, 525 U.S. at 282-285.

3. Section 5 of the VRA does not redefine substantive constitutional standards, but rather remedies and deters violations of core constitutional rights

a. This Court has recognized in South Carolina, City of Rome, and Lopez that Section 5 of the VRA does not redefine constitutional rights. Nothing in the 2006 reauthorization calls those previous decisions into ques tion. Boerne itself termed Section 5 of the VRA "reme dial," and also recognized that Congress "must have wide latitude in determining" whether it is enforcing a constitutional right. 521 U.S. at 520, 526.

The Fifteenth Amendment contains but one prohibi tion: governments may not discriminate on the basis of race with respect to voting. Racial discrimination with respect to the "fundamental" right to vote is also among the core interests of the Fourteenth Amendment, receiv ing the strictest scrutiny. See Harper v. Virginia Bd. of Elections, 383 U.S. 663, 667 (1966) (citation omitted). "Above all else, the framers of the Civil War Amend ments intended to deny States the power to discriminate against persons on account of their race." Mitchell, 400 U.S. at 126 (opinion of Black, J.); see South Carolina, 383 U.S. at 309, 329 (noting the "insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution"); City of Rome, 446 U.S. at 182 (1975 VRA extension responds to "the perpetuation of 95 years of pervasive voting discrimination").

Thus, Section 5 of the VRA operates at the intersec tion of a citizen's most fundamental right in our democ racy and the most constitutionally invidious form of gov ernmental discrimination. It is, moreover, limited in geographic scope "to those regions of the country where voting discrimination had been most flagrant," affects only the "discrete" issue of voting, and allows covered jurisdictions to terminate coverage if they can demon strate compliance with the remedial scheme. Boerne, 521 U.S. at 532-533; 42 U.S.C. 1973b(a); see pp. 32-40, infra. Those limitations plainly demonstrate that the Act is designed to remedy and prevent violations of the constitutional right, not to substantively redefine the meaning of the Constitution itself. If Congress sought to redefine a constitutional right, it would hardly do so through a statute that applies to only 9 covered States and 66 individual political subdivisions, is temporally limited, and provides for termination of coverage.

b. Appellant does not seriously contend that Section 5 redefines a substantive constitutional rule. Indeed, although appellant challenges the reauthorization of VRA Section 5 on the ground that the procedural pre clearance requirement is overly intrusive on States and local governments, appellant does not challenge the sub stantive standard by which election changes are re viewed under Section 5. See Br. 38; pp. 55-57, infra.

To the contrary, appellant characterizes Section 2 of the VRA as "mirror[ing] § 1 of the Fifteenth Amend ment, and the Act's other permanent substantive provi sions aim directly at the heart of the actual discrimina tion the Constitution forbids." Br. 38. Section 2 prohib its the application of any "voting qualification or prereq uisite to voting or standard, practice, or procedure * * * in a manner which results in a denial or abridge ment of the right of any citizen of the United States to vote on account of race or color." 42 U.S.C. 1973(a). Section 5, in turn, requires covered jurisdictions to show that any change to an existing voting "qualification, pre requisite, standard, practice, or procedure neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color" when compared to standards and procedures previously in place. 42 U.S.C. 1973c(a).

Although "[t]he inquiries under §§ 2 and 5 are differ ent," Bartlett v. Strickland, No. 07-689 (Mar. 9, 2009), slip op. 20 (plurality opinion), appellant does not contend that any such differences between them render Section 5 an impermissible "attempt to substantively redefine the States' legal obligations," Kimel, 528 U.S. at 88-89. Both Section 2 and Section 5 are "prophylactic" enforce ment measures. See Lane, 541 U.S. at 520. Each, for example, reaches voting laws that have a discriminatory "result[]" or "effect," 42 U.S.C. 1973(a), 1973c(a), whereas the Constitution has been construed to prohibit only state action with a discriminatory intent, see, e.g., City of Mobile v. Bolden, 446 U.S. 55, 65 (1980) (plural ity opinion). Because of the difficulties inherent in prov ing intentional discrimination, however, a law that pro hibited only intentional discrimination would of neces sity underenforce the constitutional right, i.e., leave some instances of intentional discrimination unremedied because intent could not be proved. Thus, on the same day City of Mobile was decided, the Court made clear that, "under the Fifteenth Amendment, Congress may prohibit voting practices that have only a discriminatory effect." City of Rome, 446 U.S. at 175; see Bush v. Vera, 517 U.S. 952, 990-991 (1996) (O'Connor, J., concurring). At least with respect to racial discrimination, then, there has never been any question that such prophylactic leg islation is permissible to enforce the guarantees of the Reconstruction Amendments. See Lane, 541 U.S. at 560-563 (Scalia, J., dissenting).

This Court has not once applied the kind of height ened scrutiny appellant seeks when reviewing the par ticularities of remedial legislation adopted by Congress to prevent further unconstitutional racial discrimination. Although appellant challenges preclearance as a "severe intrusion on state sovereignty," Br. 42, Section 5 is a permissible means to enforce the fundamental guaran tees of the Fourteenth and Fifteenth Amendments, which themselves necessarily reordered the federal- state balance. In Lopez, for example, the Court ac knowledged that the Act exacts federalism costs by "authoriz[ing] federal intrusion into sensitive areas of state and local policymaking," but held that the "Act was passed pursuant to Congress' authority under the Fif teenth Amendment, and [the Court has] likewise ac knowledged that the Reconstruction Amendments by their nature contemplate some intrusion into areas tra ditionally reserved to the States." Lopez, 525 U.S. at 282. As the Court in Lopez noted, moreover, this Court had repeatedly "upheld the constitutionality of § 5 of the Act against a challenge that this provision usurps pow ers reserved to the States." Id. at 283.

B. Section 5's Preclearance Requirement Is An Appropriate Means Of Enforcing The Constitutional Prohibition Against Racial Discrimination In Voting

Whether the Court applies the test articulated in Boerne, or deems it unnecessary to do so because the Court has already and repeatedly upheld the VRA as appropriate legislation to enforce the narrow but critical protections of the Fifteenth Amendment, the 2006 reauthorization of Section 5 qualifies as appropriate en forcement legislation designed to redress a problem that infects the root of our democracy.

Under Boerne's congruence-and-proportionality test, the Court first identifies "the constitutional right at is sue" that Congress is enforcing. Garrett, 531 U.S. at 365. Here, that is the right set forth in the very text of the Fifteenth Amendment-that the right to vote not be abridged on the basis of race or color. The Court then "examine[s] whether Congress identified a history and pattern of unconstitutional" violations of that right, and, if so, whether Congress's remedy is "congruent and pro portional to the targeted violation." Id. at 368, 374. The district court correctly concluded that the 2006 reautho rization is appropriate enforcement legislation, even if reviewed under the Boerne standard. J.S. App. 118-144.

With respect to the VRA, the relevant "historical experience" of unconstitutional discrimination in voting, South Carolina, 383 U.S. at 308, is both that which Con gress considered during the VRA's enactment and previ ous extensions and the additional evidence it gathered for the 2006 reauthorization. Although appellant asks this Court to disregard as irrelevant the century-long denial pre-VRA of minorities' most fundamental right to vote in some parts of the Nation, Congress properly de clined to do so. Congress began with the set of jurisdic tions with the worst histories of unconstitutional racial discrimination in voting. Section 5 of the VRA has al ways been uniquely limited to the worst offenders, see id. at 317-318, and Congress appropriately maintained that focus (while using a bailout process to ensure a proper fit between the remedial scheme and underlying violations).

Congress then assessed the current evidence to de termine whether Section 5 had fully accomplished its remedial purposes. Congress reasonably concluded that the evidence before it did not establish that Section 5's protections were no longer needed. The record reflects many recent instances of election changes undertaken with a discriminatory intent. Many others, where intent may have been hard to discern, nonetheless violated the remedial scheme's prohibition against adopting election changes with discriminatory effects. There was, more over, evidence that Section 5 had prevented or deterred many other discriminatory election changes.

Naturally, the record supporting Section 5's reautho rization in 2006 reflected the considerable progress that has been made since 1965-progress due in large part to Section 5 itself. Nonetheless, "[m]uch remains to be done to ensure that citizens of all races have equal op portunity to share and participate in our democratic processes and traditions." Bartlett, slip op. 21 (plurality opinion).

1. Section 5's remedial nature is demonstrated by its uniquely limited scope

In South Carolina, the Court stressed two features that demonstrated Section 5's remedial nature: (1) it covers only those jurisdictions with the worst records of unconstitutionally disenfranchising minority citizens; and (2) to remedy any "overbreadth," jurisdictions could terminate coverage if they could demonstrate an ab sence of substantial discrimination that predated the statute's enactment. 383 U.S. at 329-331. Indeed, the Court has stressed that "limitations of this kind," while not required, demonstrate Section 5's remedial nature. Boerne, 521 U.S. at 533. Congress maintained those lim itations in 2006, including a "bailout" provision substan tially expanded since South Carolina.

a. Section 5 is geographically limited to those areas with the worst histories of unconstitutional voter discrimination

Congress specifically limited Section 5's coverage to target only those jurisdictions with the worst records of unconstitutionally disenfranchising minority citizens. As the Court detailed in South Carolina, Congress found evidence of "an insidious and pervasive evil which had perpetuated itself in certain parts of our country through unremitting and ingenious defiance of the Con stitution." 383 U.S. at 309. Although appellant urges the Court to disregard that history and maintains that Congress was required to redetermine the geographic reach of Section 5 based solely on new evidence, Con gress properly focused its attention on those jurisdic tions with the most egregious histories of constitutional violations and on whether the evidence demonstrated that Section 5's remedial protections were no longer necessary.

i. Each of the States originally covered by Section 5 had "enacted tests [that were] still in use which were specifically designed to prevent Negroes from voting." South Carolina, 383 U.S. at 310. Literacy tests were supplemented by "grandfather clauses, property qualifi cations, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter," all of which were administered in a discriminatory man ner. Id. at 311-312. Blacks with college degrees were precluded from registering to vote, while white illiter ates were permitted to do so. Id. at 312 nn.12-13. Cov ered jurisdictions also had histories of white primaries, improper challenges, and racial gerrymandering. Id. at 311. Congress started with this reliable "evidence of actual voting discrimination" in certain jurisdictions. Id. at 330; S. Rep. No. 162, 89th Cong., 1st Sess. Pt. 3, at 13-14 (1965) (1965 Senate Report). Congress then "evolved" a formula to identify the worst offenders, based on whether the jurisdiction had employed "tests and devices for voter registration" and had a particu larly low voting rate. South Carolina, 383 U.S. at 329- 330.

This Court has recognized that the coverage formula was essentially reverse-engineered to capture those ju risdictions "where voting discrimination had been most flagrant." Boerne, 521 U.S. at 533. To correct for any under- or over-inclusiveness, Congress provided that additional jurisdictions could be subjected to a preclear ance requirement upon a sufficient showing of unconsti tutional voting discrimination, 42 U.S.C. 1973a(c), and, as discussed above, Congress provided that designated jurisdictions could terminate coverage under the bailout mechanism, 42 U.S.C. 1973b(a).

When Congress extended Section 5 to protect lan guage minority voters, Congress took particular note of the history of discrimination against such citizens in Texas. The Senate Report documented Texas's "long history of discriminating" against black and Mexican- American citizens "in ways similar to the myriad forms of discrimination practiced against blacks in the South." S. Rep. No. 295, 94th Cong., 1st Sess. 25 (1975) (1975 Senate Report). The report chronicled Texas's discrimi natory history, including restrictive registration devices, white primaries, poll taxes, intimidation schemes, and vote dilution techniques. Id. at 25-26. Such conduct included "acts of physical, economic, and political intimi dation when [minority] citizens [did] attempt to exercise the franchise." Id. at 26. Texas was designated for cov erage under Section 4(b) of the VRA on September 23, 1975, and it and all of the political entities within it be came subject to Section 5 as a result. 40 Fed. Reg. at 43,746; Sheffield, 435 U.S. at 127; see Briscoe v. Bell, 432 U.S. 404, 405-406 (1977) (declining to review Texas's designation for coverage, but noting Congress had be fore it "'overwhelming evidence' showing 'the ingenuity and prevalence of discriminatory practices that have been used to dilute the voting strength and otherwise affect the voting rights of language minorities'") (quot ing 1975 Senate Report 30, 35); City of Rome, 446 U.S. at 193 (Stevens, J., concurring) (finding it "clear that remedies for discriminatory practices that were wide spread within a State may be applied to every govern mental unit within the State even though some of those local units may have never engaged in purposeful dis crimination themselves").

ii. When Congress extended the sunset date for Sec tion 5 in 2006, it retained the covered-jurisdiction limita tion. Appellant assails Congress's decision not to amend the coverage formula, claiming it is "based on proxies from 1972 or earlier." Br. 58. But, as described above, a jurisdiction's coverage is not simply the result of me chanical application of "proxies." To the contrary, Con gress identified appropriate jurisdictions based on their extensive records of discrimination against minority voters.6 Appellant's more fundamental contention is that Congress in 2006 should have examined all 50 States-and their subdivisions-anew. But neither logic nor the law requires Congress or this Court to turn a blind eye to the grave history of constitutional violations in covered jurisdictions to which the VRA responds.

There is nothing in this Court's precedents to sug gest that Congress must continually justify the remedial legislation it adopts under the Reconstruction Amend ments' enforcement clauses with fresh evidence of con tinued unconstitutional conduct on the part of the States. Neither the FMLA nor ADA Title II, upheld in Hibbs and Lane, has an expiration date, nor is one re quired. Boerne, 521 U.S. at 533. Indeed, it would be odd to require proof of ongoing constitutional violations in order to demonstrate that it is "appropriate" to keep en forcement legislation in place, as such evidence would tend to show that existing legislation was ineffective.

Where a State has been found to have engaged in systematic constitutional violations, it is the province of Congress under the enforcement clauses to determine when the evidence is sufficient to demonstrate that the remedial scheme is no longer warranted. Congress has authority not only to remedy past constitutional viola tions, but to "prevent and deter" further ones. Hibbs, 538 U.S. at 728; see Boerne, 521 U.S. at 518-519. Once Congress has established a remedial framework for ju risdictions with demonstrated records of constitutional violations, it may reasonably rely, for its decision to maintain that framework, on evidence of likely future unconstitutional conduct far less compelling than existed when it first imposed the remedial and preventive mea sures.

By way of analogy, in the judicial context, the Court has held that once a constitutional violation is found, the presumption shifts and the burden is on the violator to "demonstrate[] its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution." Freeman v. Pitts, 503 U.S. 467, 490 (1992). Such a showing requires not only compliance with the Constitution's direct requirements, but also "full and satisfactory compliance with the [court's reme dial] decree." Id. at 491, 499.

Congress is, of course, not constrained by the institu tional limitations that this Court has recognized con strain judicial supervision of school districts, but the analogy is nonetheless instructive. Indeed, what is per missible for the judiciary is a fortiorari within the power of Congress when it exercises its textually committed enforcement power under the Reconstruction Amend ments. Congress found that the covered jurisdictions were the worst constitutional violators, a determination this Court sustained. Congress could permissibly there fore shift the presumption in favor of retaining the re medial scheme it adopted until the evidence demon strates it is no longer necessary. An especially heavy burden must be imposed on a party seeking to have de clared unconstitutional the continuation of a congressio nally imposed remedy that this Court has specifically upheld four times as a permissible prophylactic measure against constitutional violations that undermine the very foundations of democracy.

As discussed more fully below, see pp. 41-51, infra, Congress determined in 2006, based on an extensive record, that, while VRA Section 5 had been responsible for "[s]ignificant progress" in covered jurisdictions, the remedial scheme had not yet fulfilled its mission. 2006 Reauthorization § 2, 120 Stat. 577. Congress deter mined that there is sufficient ongoing discrimination to warrant continued Section 5 coverage. Significantly, the evidence before Congress established that there is still more voting discrimination in covered jurisdictions than in non-covered jurisdictions, even excluding evidence arising out of the Section 5 preclearance process itself.

Contrary to appellant's assertion (Br. 59-60), Con gress did engage in a "meaningful comparison between previously covered jurisdictions and noncovered ones." Congress examined a study of reported Section 2 suits filed throughout the country between 1982 and 2005, conducted by the University of Michigan Voting Rights Initiative. Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitu tion of the House Judiciary Comm., 109th Cong., 2d Sess. 125-126, 202-204 (2006) (Continued Need), The study revealed that 57% of the 117 cases with outcomes favorable to minority voters were filed in jurisdictions covered by Section 5, although those jurisdictions com prised less than one-quarter of the Nation's population in 2000. Id. at 125-126, 202-203. Thus, covered jurisdic tions were subject to more than twice their proportional share of successful Section 2 suits, notwithstanding de cades of close monitoring by the Attorney General through Section 5. Testimony also revealed that racial bloc voting is more pervasive in covered jurisdictions than in non-covered jurisdictions. The Continuing Need for Section 5 Pre-clearance: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 48 (2006).7

b. Section 5 is temporally limited, and the bailout provision allows jurisdictions demonstrating compliance to terminate coverage

While Congress recognized the continuing need for Section 5 in covered jurisdictions, it also provided for that process ultimately to come to an end. The 2006 reauthorization, like the original VRA and each exten sion, includes both a sunset date for Section 5 itself and a process by which individual States and political subdi visions may terminate coverage.

The 2006 reauthorization provided that Section 5 would terminate in 25 years and that Congress would reconsider Section 5 after 15 years. 42 U.S.C. 1973b(a)(7) and (8). Those provisions ensure that Con gress will take a fresh look at the remedial scheme as a whole to determine whether evidence of compliance with the Constitution and the statutory remedy are sufficient to demonstrate that Section 5's preclearance require ment is no longer appropriate. See Eldred v. Ashcroft, 537 U.S. 186, 208 (2003) (regarding lengthy copyright extension, courts are "not at liberty to second-guess con gressional determinations and policy judgments of this order"). And, of course, Congress is free to remove or modify Section 5 at any earlier date.

Moreover, the 2006 VRA reauthorization retained the bailout mechanism-a feature that this Court has repeatedly highlighted as indicative of Section 5's reme dial nature and tailored reach. See South Carolina, 383 U.S. at 331; Briscoe, 432 U.S. at 411; Boerne, 521 U.S. at 533. Notably, the bailout provisions are considerably broader now than when the VRA was first upheld in South Carolina.

From the VRA's enactment in 1965 until 1984, only jurisdictions that had been specifically designated under Section 4(b)'s coverage formula were eligible to seek bailout. 42 U.S.C. 1973b(a) and (b) (Supp. I 1965). In 1982 (effective in 1984), Congress expanded bailout eligi bility to "political subdivision[s]" of designated States that were not separately designated. 1982 Amendments § 2(b)(2), 96 Stat. 131 (42 U.S.C. 1973b(a)(1)).

In addition, the bailout standard was amended in 1982 to make it substantially more permissive. Until 1984, when the expanded provisions took effect, a bailout required a jurisdiction to demonstrate that it had not engaged in discrimination since before the VRA's enact ment in 1965. See, e.g., 42 U.S.C. 1973b(a) (1982) (re quiring no discrimination for 19 years). The 1982 Amendments now permit bailout if the jurisdiction can demonstrate that it has complied with the remedial scheme in the previous ten years, 42 U.S.C. 1973b(a)(1), thereby creating "an incentive" for covered jurisdictions to comply. 1982 Senate Report 46, 59. By looking at the previous ten years, the bailout provision focuses on any recent discriminatory actions, thereby helping ensure the targeted application of Section 5's preclearance re quirement.

Appellant claims (Br. 60) that the current bailout standard is now "of no practical use." As the district court observed, however, every political subdivision to apply for a bailout in the past quarter-century has re ceived one. J.S. App. 12. Appellant's assertion that the bailout is unavailable to any county outside Virginia (Br. 24-26) is disproved by the facts of its own State. As the district court found, one of the Virginia jurisdictions that successfully bailed out has almost as many govern mental subunits as the median number of subunits for Texas's political subdivisions. J.S. App. 140. Appellant's assertions are particularly unconvincing since Travis County conducts elections on behalf of the various politi cal units within the County, including appellant, J.A. 398, and would therefore be in a position to gather the requisite information if it believed bailout was war ranted. In any event, neither Texas nor Travis County has complained that Section 5 is too burdensome or that bailout is too restrictive. In fact, Travis County has in tervened to defend Section 5's constitutionality.

2. Congress amassed an extensive record demonstrating ongoing discrimination against minority voters in covered jurisdictions

Before reauthorizing Section 5 in 2006, Congress conducted an extensive investigation into the operation and effect of the VRA over the previous 40 years. Con gress held 21 separate hearings, heard from 86 wit nesses, and gathered over 15,000 pages of evidence to discern the extent to which discrimination against mi nority voters continues in jurisdictions covered by Sec tion 5. See H.R. Rep. No. 478, 109th Cong., 2d Sess. 5, 11 (2006) (2006 House Report); S. Rep. No. 295, 109th Cong., 2d Sess. 2-4, 10 (2006).

Cognizant that Section 5 had been in operation since 1965, Congress examined not only the degree to which discrimination against minority voters persists in cov ered jurisdictions, but also the extent to which Section 5 has already been effective at remedying, preventing, and deterring such discrimination. Although Congress found that "[s]ignificant progress has been made in elim inating first generation barriers experienced by minor ity voters" since 1965, Congress also determined that "40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the" Fifteenth Amendment, as evidenced by "second generation barriers constructed to prevent minority voters from fully participating in the electoral process." 2006 Reauthorization § 2(b)(1), (2) and (7), 120 Stat. 577-578; see 2006 House Report 6. Those findings are entitled to substantial deference. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195-196 (1997).

In deciding whether to reauthorize Section 5 in 2006, Congress was not writing on a blank slate. Since Sec tion 5's enactment in 1965, Congress has repeatedly re-examined whether Section 5 is an effective and appro priate remedy, and this Court has upheld both its enact ment and subsequent reauthorizations. In investigating whether minority voters in covered jurisdictions contin ued to face discrimination in 2006, Congress relied pri marily on the same evidentiary sources on which Con gress previously relied, and which this Court approved in South Carolina and City of Rome.

Because the VRA has been in operation for some time, there is no logic in appellant's insistence that reau thorization is proper only if the extent and types of vot ing discrimination that exist today exactly mirror the extent and types of voting discrimination that led to its enactment in 1965. In 2006, Congress was not deciding whether to enact Section 5 in the first instance, but whe ther to retain it. As the district court detailed, Congress found had before it evidence that Section 5 continues to be necessary and appropriate.

a. Section 5 enforcement

The strongest evidence of the continued need for Section 5 arises from the operation of the provision it self. In upholding Section 5 in City of Rome, this Court credited Congress's conclusion that "[t]he recent objec tions entered by the Attorney General * * * clearly bespeak the continuing need for this preclearance mech anism." 446 U.S. at 181 (quoting H.R. Rep. No. 196, 94th Cong. 1st Sess. 10 (1975) (1975 House Report)).

The 2006 record demonstrates that Section 5 contin ues to play an active role in preventing and deterring constitutional violations and maintaining the progress achieved over the past 40 years. The number of objec tions interposed by the Attorney General to prevent discriminatory voting changes in covered jurisdictions has not dwindled, as one might expect had Section 5 out lived its usefulness. Since Section 5 was reauthorized in 1982, the Attorney General had interposed more than 750 objections, 2006 House Report 21-22; id. at 36, and his objections prevented implementation of more than 2400 discriminatory voting changes. See Voting Rights Act: Section 5 of the Act-History, Scope, and Purpose: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 104- 2595 (2005) (History, Scope, & Purpose) (reproducing objections).8 Although the annual rate of objections from 1968-1982 was slightly higher than the rate from 1982 to the present, Continued Need 172, the rate in several southern States actually increased in the post- 1982 time period, id. at 60 (Louisiana); id. at 37 (2/3 of objections in Mississippi interposed after 1982). The record demonstrates that Section 5 continues to serve a critical role in achieving the still-elusive goal of eliminat ing racial discrimination in voting.

First, Section 5 prevents constitutional violations. Significantly, Congress learned that a sizeable portion of the Attorney General's objections were interposed because a jurisdiction had acted with a discriminatory purpose. Intentional discrimination against minority voters is exactly the type of action the Fourteenth and Fifteenth Amendments empowered Congress to pre vent. Examples of intentional discrimination blocked by the Section 5 preclearance process run the gamut of vot ing changes and types of jurisdictions.

One example illustrates the point. In 2001, the At torney General interposed an objection regarding Kilmi chael, Mississippi, after the all-white incumbent town governance tried to cancel an election shortly after black citizens had become a majority. History, Scope, & Pur pose 1616-1619. When the citizens of Kilmichael finally voted, they elected the town's first African-American mayor and three African-American aldermen. 2006 House Report 37. Other examples are legion. See, e.g., History, Scope & Purpose 830-833 (2000 objection to redistricting plan for Webster County, Georgia, school board undertaken to "intentionally decreas[e] the oppor tunity of minority voters to participate in the electoral process" after majority black board was elected); id. at 1606-1612 (1998 objection to redistricting plan for Gre nada, Mississippi, adopted with "purpose to maintain and strengthen white control of a City on the verge of becoming majority black").

Sometimes, Section 5 objections worked in tandem with other remedial provisions of the VRA to prevent constitutional violations. One example involved Missis sippi's dual registration system, under which citizens were required to register separately for different elec tions. The dual system was a relic of the State's 1890 constitutional convention and was adopted "for the pur pose of disfranchising blacks." Continued Need 176. In 1987, a federal court found that the system violated Sec tion 2 of the VRA because it was "adopted for a discrimi natory purpose and had a discriminatory effect, account ing, in part, for the 25 percentage-point difference in the registration rates of blacks and whites." Ibid. But, af ter passage of the federal National Voter Registration Act of 1993, 42 U.S.C. 1973gg et seq., Mississippi reinsti tuted a dual registration system. The Department of Justice objected in 1997, "finding that the state's new dual system was racially discriminatory both in purpose and effect." Continued Need 368.

Section 5 suits by private individuals can also play a critical role in preventing constitutional violations. County officials in Waller County, Texas, had for de cades worked to prevent students at the historically black Prairie View A&M University from voting. When two students decided to run for local office in 2004, the white district attorney threatened the predominantly black student body with felony prosecution if they voted -even though a federal court had upheld the students' right to vote in local elections. Continued Need 185; United States v. Texas, 445 F. Supp. 1245 (S.D. Tex. 1978), aff'd, 439 U.S. 1105 (1979). The district attorney relented after the NAACP brought suit. Yet, only a month before the election, county officials drastically reduced early voting near campus-knowing that many students would be on spring break on election day and therefore needed to vote early. The county did not sub mit the change for preclearance, but the scheme was nonetheless derailed when the NAACP filed a Section 5 enforcement action. Continued Need 185-186.

Second, Section 5 effectively deters unconstitutional discrimination. 2006 House Report 24 ("As important as the number of objections that have been interposed to protect minority voters against discriminatory changes, is the number of voting changes that have never gone forward as a result of Section 5."). Congress heard re peatedly that "Section 5 has a strong deterrent effect" that has prevented jurisdictions from implementing or enacting discriminatory voting changes. Continued Need 34.

One tangible way in which Congress found that Sec tion 5's deterrent effect can be observed is in the "ad ministrative mechanism, known as a 'more information request'" (MIR). 2006 House Report 40. In some in stances, an MIR causes the jurisdiction to alter its pro posed change after concluding "that the change would be objected to as violating the Act if it were not with drawn." Continued Need 124; History, Scope, & Pur pose 93-94. Since 1982, more than 205 voting changes have been withdrawn in response to such information requests. 2006 House Report 41. A recent study of the efficacy of MIRs at deterring discriminatory voting practices concluded that MIRs were particularly effec tive during the period 1999-2005, deterring many times more changes than formal objections did. Continuing Need for Section 203's Provisions for Limited English Proficient Voters: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 221 (2006). The study found that the "largest impact of MIRs was in Texas." Id. at 220.

Third, Section 5 safeguards the progress minority voters have achieved since 1965. Even where the Attor ney General made no explicit finding of discriminatory purpose, Section 5's preclearance process has prevented hundreds of voting changes that would have eroded that progress. In Texas, for example, Latinos reached one- third of the State's total population by 2001. The state legislative redistricting board proposed a redistricting plan for the State House of Representatives that would have minimized Latino voting strength by eliminating four existing majority-Latino districts, while adding only one such district. The Attorney General interposed an objection to the proposed plan, and Latino voters in Texas accordingly maintained four majority districts and the opportunity to elect representatives of their choice. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong., 1st Sess. 19 (2005) (Impact & Effectiveness); His tory, Scope, & Purpose 2518-2523.

Finally, Section 5's protection is comprehensive. The preclearance process prevents the implementation of discriminatory voting changes in every form and at every level of government. The Justice Department has interposed objections to a range of voting changes, in cluding annexations, education requirements, election dates, polling locations, majority-vote requirements, statewide and local redistricting, staggered terms, and numbered posts. History, Scope, & Purpose 1696-2595 (objection letters, 1978 through mid-2003); Continued Need 335, 402-404. Those objections have prevented discriminatory changes affecting voting at all levels of government and touching every aspect of voters' partici pation in the democratic process. See, e.g., id. at 62-66, 335.

When a Section 5 objection prevents implementation of a discriminatory voting change at the statewide level, it protects hundreds of thousands of minority voters. Since 1982, the Attorney General has interposed an ob jection to a statewide redistricting plan in every ful ly covered State, thereby preventing discrimination against millions of minority voters. J.S. App. 69. In Louisiana, for example, "since 1965, not one single Loui siana State House of Representatives redistricting plan[,] as initially submitted to the Justice Department for review, has been precleared." Impact & Effective ness 16.

b. Additional evidence of voter discrimination

In 2006, Congress also relied on evidence of ongoing discrimination derived from outside the Section 5 pre clearance process, including efforts to enforce other pro visions of the VRA, statistical data, and testimony about particular abuses. See South Carolina, 383 U.S. at 330 ("Congress obviously may avail itself of information from any probative source."). These are the same sourc es previous Congresses relied on enacting and reauthor izing Section 5. 1981 House Report 7-8, 17-18, 20-21; 1975 House Report 7, 12, 16-24; 1975 Senate Report 13- 15, 20-21, 25-31; 1965 Senate Report 3-12. Section 5 can not prevent every discriminatory voting practice in cov ered jurisdictions, because it applies only to electoral changes and often cannot reach the discretionary actions of officials such as individual poll workers. But such discrimination is nonetheless relevant to Congress's de termination that there is an ongoing need for Section 5.

i. Section 8 of the VRA, 42 U.S.C. 1973f, permits the Attorney General to deploy federal observers to monitor elections in a particular "locale because racial tensions are high and efforts to discriminate may occur." Contin ued Need 124. The Attorney General certifies the need for such observers "only when there is a reasonable be lief that minority citizens are at risk of being disenfran chised" by tactics such as "harassment and intimidation inside polling locations." 2006 House Report 44. In each year between 1984 and 2000, the Justice Department sent out between 300 and 600 individual observers. Con tinued Need 13. In 2004, the Department dispatched nearly 2000 monitors to over 100 jurisdictions. See Modern Enforcement of the Voting Rights Act: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 9 (2006). In many covered States, the rate of ob server coverage since 1982 has met or exceeded the rate of observer coverage between 1965 and 1982. Continued Need 79-80. Congress learned of many forms of racial discrimination reported by observers, including discrim inatory statements made by poll workers. Id. at 184.

Congress also found that "[e]vidence of continued discrimination includes * * * the continued filing of section 2 cases that originated in covered jurisdictions." 2006 Reauthorization § 2(b)(4)(C), 120 Stat. 577-578. Analysis of reported Section 2 cases reveals widespread judicial findings of serious voting discrimination against minority voters in covered jurisdictions. See, e.g., Con tinued Need 14 (North Carolina), 340 (South Dakota); id. at 251, 283-287 (maps and table showing number of county-level voting practices altered as a result of Sec tion 2 litigation in, e.g., Alabama (275), Texas (274), Georgia (76), Mississippi (74), and North Carolina (56)); History, Scope, & Purpose 78 (Texas, North Carolina, Alabama).

One prominent example was the subject of this Court's decision only three Terms ago in League of Uni ted Latin Am. Citizens v. Perry, 548 U.S. 399 (2006), which found that Texas adopted a congressional district ing plan in 2003 bearing "the mark of intentional dis crimination that could give rise to an equal protection violation" by purposefully diminishing the voting strength of a cohesive language minority community. Id. at 440. The Court found that the State's intentional splitting of that cohesive minority population "under mined the progress of a racial group that has been sub ject to significant voting-related discrimination and that was becoming increasingly politically active and cohe sive," and that "the State took away the Latinos' oppor tunity" to elect their candidate of choice precisely "be cause Latinos were about to exercise it." Id. at 439-440.

Congress also continued to rely in 2006 on disparities in registration rates between minority and nonminority voters. When this Court upheld the 1975 reauthoriza tion of Section 5 in City of Rome, it noted that, "largely as a result of" the VRA, registration of black voters "had improved dramatically since 1965." 446 U.S. at 180. Nevertheless, the Court credited Congress's con clusion that a significant disparity remained in at least some covered jurisdictions, including disparities of be tween 16 and 24 percentage points in Alabama, Louisi ana, and North Carolina. 1975 House Report 6; 1975 Senate Report 13. Comparable disparities persisted in 2006, when Congress found gaps of between 11 and 31 points in registration and turn-out rates in Virginia, Texas, and Florida. 2006 House Report 25, 29. In fact, as the district court found, when the statistics are ad justed to distinguish between "White Hispanic" and "White non-Hispanic" residents, the gaps are even more striking, showing that black registration rates continue to lag behind those of non-Hispanic whites in all but one covered State. J.S. App. 61.

Beyond the quantitative and statistical evidence, Congress also gathered thousands of pages of testimony and documents from citizens, advocates, and officials chronicling ongoing problems of vote suppression, voter intimidation, and vote dilution throughout covered juris dictions. Further examples of vote suppression, far be yond what can be summarized here, included minority voters being threatened with arrest or prosecution for voting, Continued Need 3619-3620, 3979, poll workers telling language minority voters that they should not be voting if they do not speak English, id. at 350, 3980, large-scale efforts to challenge minority voters' registra tion, id. at 93, and misinformation campaigns designed to prevent minority voters from getting to the polls, id. at 3548. Examples of vote dilution included techniques such as dilutive redistricting plans, discriminatory an nexations, anti-single-shot rules, majority vote/run-off requirements, and at-large election systems. Id. at 20, 123.

The abundant evidence Congress collected demon strated that discrimination remains a serious problem. 2006 House Report 6. Congress also found that the progress made in combating that discrimination "is the direct result of the Voting Rights Act." 2006 Reauth orization § 2(b)(1), 120 Stat. 577. That progress was not, however, enough. Congress enacted Section 5 as part of an effort "to rid the country of racial discrimination in voting," South Carolina, 383 U.S. at 315, not "simply to reduce racial discrimination in voting to what some view as a tolerable level," 152 Cong. Rec. S7976 (daily ed. July 20, 2006) (Sen. Feingold). Congress determined that further enforcement of Section 5 is necessary be cause without its "protections, racial and language mi nority citizens will be deprived of the right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years." 2006 Reauthorization § 2(b)(9), 120 Stat. 578. After extreme ly careful review, a near-unanimous majority of the peo ple's elected representatives-including those repre senting jurisdictions covered by Section 5-voted to re authorize the law. That determination is entitled to "much deference" by this Court. Boerne, 521 U.S. at 536.

3. Appellant's efforts to minimize the legislative record are unavailing

a. The central theme of appellant's attack is a claim that only evidence of "gamesmanship"-i.e., jurisdic tions evading judicial enforcement by changing discrimi natory tactics-could justify Section 5. Br. 39-40. But "gamesmanship" was not the sole focus of Congress in originally enacting Section 5, and it was certainly not the focus of this Court in upholding it. The Court recog nized in South Carolina that it was the cumbersome nature of case-by-case adjudication that prompted Con gress to adopt the preclearance requirement. 383 U.S. at 314, 327-328.

Of course, Section 5's preclearance mechanism re moves the opportunity for covered jurisdictions to en gage in gamesmanship. Jurisdictions must now demon strate that new voting practices are not discriminatory before implementing them. Although Congress did find evidence of some covered jurisdictions' attempts to evade the nondiscrimination mandate of Section 5, J.S. App. 131, the lack of additional evidence of that kind simply demonstrates that Section 5 is doing its job.

In a similar vein, appellant argues (Br. 54) that, while case-by-case adjudication was inadequate when the VRA was first enacted, litigation under Section 2 is now faster and more effective than Section 5 preclear ance. Those are determinations for Congress to make. The extensive record in 2006 documented why Section 5 is an appropriate measure to remedy and prevent voting discrimination in covered jurisdictions. The same prob lems with case-by-case adjudication that justified Sec tion 5 in 1965, South Carolina, 383 U.S. at 314; City of Rome, 446 U.S. at 174, exist today. Congress is not lim ited to sitting back while discrimination occurs and then relegating its victims to the costly and burdensome liti gation remedies available under Section 2.

Specifically, the record before Congress documented three shortcomings of Section 2 litigation. First, Section 2 is purely an after-the-fact remedy, available only to challenge voting practices and procedures already in place. Section 2 actions can take years to litigate, dur ing which time the challenged practice remains in place no matter how discriminatory it is. If a candidate is elected under what turns out to be an illegal voting scheme, that individual will nonetheless enjoy significant advantages of incumbency. Impact & Effectiveness 13- 14; Continued Need 97. In some cases, an illegal voting practice must remain in effect for several election cycles before the plaintiff can gather enough evidence to dem onstrate a discriminatory effect. History, Scope, & Pur pose 92. By contrast, under Section 5, discriminatory voting practices are prevented through a system that takes at most several months. See id. at 101. Moreover, it can be very difficult for all involved-the jurisdiction, candidates, and voters-when courts undo elections ex post. The far better solution is to ensure elections pro tect voting rights before they take place.

Second, Section 2 places the burden of proof on mi nority plaintiffs to demonstrate discrimination, while Section 5 places the burden on jurisdictions to demon strate that a proposed change will not have a discrimina tory effect and was not animated by a discriminatory purpose. History, Scope, & Purpose 83; Continued Need 97. Jurisdictions are in a much better position than individual citizens to amass information about po tential discrimination in voting procedures, without in curring undue expense.

Finally, Section 2 places a heavy financial burden on minority voters who challenge illegal election practices and schemes. See History, Scope, & Purpose 92, 97. Section 5, on the other hand, takes the financial burden off minority voters while placing the comparatively small financial burden associated with preclearance onto covered jurisdictions. See id. at 79.

The evidence presented to Congress demonstrated that compliance with Section 5 is not unduly burden some. Congress was informed that preclearance through the Attorney General is "swift" and "stream lined." Understanding the Benefits and Costs of Section 5 Pre-clearance: Hearing Before the Senate Judiciary Comm., 109th Cong., 2d Sess. 10, 182 (2006). This case bears that out. Appellant's average annual expenditure on Section 5 compliance, which was only $223, now ap proaches zero since it entered joint election agreements with Travis County. J.A. 270, 279.

b. Appellant offers two specific challenges to the evidence relied upon by Congress, deriding the rate of Section 5 objections as "vanishingly small," Br. 52, and questioning Congress's concern with the prevalence of racially polarized voting, id. at 48-49. Neither point un dermines Congress's determination.

As the district court found, the rate of objections interposed by the Attorney General has always been low, and the overall trend throughout the life of Section 5 has been declining, as would be expected. J.S. App. 64-67. As noted earlier, however, the rate in several southern States actually increased in the post-1982 time period. See p. 43, supra. Moreover, statistics demon strate a "consistent increase over time of objections based on the purpose prong of Section 5." Peyton Mc Crary et al., The End of Preclearance As We Know It: How the Supreme Court Transformed Section 5 of the Voting Rights Act, 11 Mich. J. Race & Law 275, 297 (2006).9 Most importantly, the rate of objections alone does not reflect the degree to which such objections pre vent and deter discrimination against minority voters. See pp. 41-51, supra.

Appellant also dismisses (Br. 49-51) Congress's find ing that persistent racially polarized voting throughout covered jurisdictions leaves minority voters "politically vulnerable," 2006 Reauthorization § 2(b)(3), 120 Stat. 577, arguing that racial polarization is not state ac tion, and therefore not relevant to the Fifteenth Amend ment. Section 5 prohibits covered governmental entities from implementing voting changes that discriminate against minority voters, including discriminatory voting schemes that inhibit minority voters' opportunity to elect their candidates of choice. As the district court found, racially polarized voting is a necessary precondi tion for vote dilution techniques to have their intended discriminatory effect. J.S. App. 106. Thus, Congress's finding that racial bloc voting continues throughout cov ered jurisdictions bolsters Congress's determination that covered jurisdictions have ready means of discrimi nating against minority voters.

C. Amici's Challenges To The 2006 Substantive Amend ments To Section 5 Are Not Properly Before The Court

Appellant does not challenge, but notes in passing (Br. 63), that Congress amended Section 5's substantive standard to provide that election changes motivated by a racially discriminatory purpose will preclude preclear ance, even when the changes are not retrogressive. See 42 U.S.C. 1973c(a) and (c). That change overruled this Court's statutory holding in Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (Bossier II), that changes motivated by discrimination, even though un constitutional, were not a basis for denying preclear ance. Id. at 341.10

Certain of appellant's amici take, as the focus of their attacks on the 2006 reauthorization, that substantive change and another, by which Congress provided that preclearance should be denied if an electoral change diminishes, on account of race, citizens' ability "to elect their preferred candidates of choice," 42 U.S.C. 1973c(b). See, e.g., Thernstrom Br. 2-4; Scarf-Norton Br. 7. Amici's arguments, which rest on the premise that the substantive amendments will lead Section 5 to be applied in an unconstitutional manner, are not prop erly before the Court. They were neither pressed before nor passed upon by the district court, nor were they raised in appellant's jurisdictional statement.

Any challenge to the substantive amendments is, in any event, premature. Such a challenge must await a case involving the Department's application of the new provisions. To be clear, however, amici are incorrect that the amended Section 5 authorizes-let alone com pels-either the Justice Department to require, or cov ered jurisdictions to engage in, unconstitutional redis tricting.11 No act of Congress could "overrule" this Court's determinations of what the Constitution re quires in the redistricting context, and the Department's guidance makes that clear.12

CONCLUSION

The judgment of the district court should be af firmed.

Respectfully submitted.

EDWIN S. KNEEDLER
Acting Solicitor General
LORETTA KING
Acting Assistant Attorney
General
NEAL KUMAR KATYAL
Deputy Solicitor General
DOUGLAS HALLWARD-DRIEMEIER
Assistant to the Solicitor
General
STEVEN H. ROSENBAUM
DIANA K. FLYNN
SARAH E. HARRINGTON
T. CHRISTIAN HERREN, JR.
Attorneys

MARCH 2009

1 The district court correctly concluded that VRA Section 5 is Fif teenth Amendment legislation. J.S. App. 51-56. The "language minor ities" protected by the 1975 Amendments include specified groups recognized as having race or color characteristics: "American Indian, Asian American, Alaskan Natives or of Spanish heritage." 42 U.S.C. 1973l(c)(3). This Court has described such groups as "racial." See Par ents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2747 n.2 (2007) (describing "racial breakdown" among "Asian-Ameri can," "African-American," "Latino," and "Native-American" groups); League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 439 (char acterizing Latinos as "a racial group"). To the extent VRA Section 5 sweeps more broadly than the Fifteenth Amendment, it lies within the core of the Fourteenth Amendment, which likewise prohibits state- sponsored discrimination on bases such as national origin and language, especially with respect to such fundamental rights as voting. See, e.g., Morgan, 384 U.S. at 646-647 (upholding protection under Section 5 of the Fourteenth Amendment of voting rights of Spanish-speaking citi zens educated in Puerto Rico).

2 As explained, pp. 52-54, infra, Congress made the prophylactic choice of requiring preclearance in covered jurisdictions after receiving evidence that individual lawsuits could not adequately address or deter constitutional violations, and because Congress believed it would be too difficult for courts in individual cases, acting ex post, to distinguish be tween discriminatory intent and discriminatory effect. Congress was not thereby redefining a right; it was simply acting to protect against the constitutional wrongs that this Court has already identified.

3 Appellant recognizes (Br. 28, 32) that Thirteenth Amendment cases, and Jones in particular, should guide the Court in this case.

4 While Hibbs and Lane provoked vigorous dissents, it is notable that the dissenters emphasized other aspects of the legislation that, in the dissenters' view, indicated that the statutes were not genuine responses to constitutional violations but rather attempts to rewrite the constitu tional protections themselves. See Hibbs, 538 U.S. at 756 (Kennedy, J., dissenting) (citing as "proof * * * that this is an entitlement program, not a remedial statute," the fact that the FMLA did not prohibit facially discriminatory leave policies, as long as those policies satisfied the federal floor applicable to private employers); Lane, 541 U.S. at 549-551 (Rehnquist, C.J., dissenting) (stressing ADA Title II's breadth as evidence it was an "attempt to legislatively 'redefine the States' legal obligations' under the Fourteenth Amendment") (quoting Kimel, 528 U.S. at 88).

5 In United States v. Georgia, 546 U.S. 151 (2006), the Court upheld Title II of the ADA as applied to actual constitutional violations without even inquiring whether Congress was responding to a pattern of consti tutional violations, because the Court recognized that Congress's au thority to provide "remedies against the States for actual violations of" the Constitution was clear. Id. at 158.

6 Congress never intended the original coverage formula to serve as an ongoing "measure of an adequate level of political enfranchisement" of minority voters, such that when the criteria no longer applied, it would establish that "the discriminatory efforts had been sufficiently eradicated to warrant removing the safeguards which made the im provement possible." Joint View of 10 Members of the Judiciary Committee Relating to Extension of the Voting Rights Act of 1965, 115 Cong. Rec. 5521 (1970).

7 A study of the 2008 election further indicates that racially polarized voting persists in covered jurisdictions. See Persily Br. 5.

8 The Department of Justice tracks the number of individual changes objected to in each objection letter. See 2006 House Report 21-22; id. at 36; J.S. App. 82. A list of objections can be found at Civil Rights Div., U.S. Dep't of Justice, About Section 5 of the Voting Rights Act (last modified Jan. 2, 2008) <http://www.usdoj.gov/crt/voting/sec_5/ obj_ activ.htm>.

9 The number of objections based on intent decreased following Reno v. Bossier Parish School Board, 528 U.S. 320, 341 (2000). In 2006, Congress amended Section 5 to provide for denial of preclearance for intentionally discriminatory measures.

10 The statutory change with respect to Bossier II makes Section 5 hew even more closely to the constitutional prohibition it enforces. Un der Bossier II, an unconstitutional discriminatory motive was not a bas is to refuse to preclear an election change. Section 5 now stands as pro tection against that type of constitutional violation as well.

11 Appellant does not, in any event, engage in redistricting.

12 Guidance Concerning Redistricting and Retrogression Under Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, 66 Fed. Reg. 5413 (2001).