Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 1 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 1 of 28 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, et al. Case No. 1:12-cv RMC-DST-RLW Defendant, DEFENDANT-INTERVENORS REPLY IN FURTHER SUPPORT OF THEIR CROSS- MOTION FOR SUMMARY JUDGMENT AND OPPOSITION TO TEXAS S MOTION FOR SUMMARY JUDGMENT

2 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 2 of 28 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. THIS COURT IS BOUND BY THE D.C. CIRCUIT S RULING IN SHELBY COUNTY THAT CONGRESS 2006 REAUTHORIZATION OF SECTION 5 IS CONSTITUTIONAL II. THE SECTION 5 EFFECT STANDARD, AND THE SUPREME COURT S NON-RETROGRESSION CONSTRUCTION OF THAT STANDARD, ARE CONSTITUTIONAL A. The Section 5 Effect Standard Is Constitutional On Its Face Texas is making a facial challenge to the effect standard The Section 5 effect standard is constitutional a. Texas s claim that the effect standard was separately reenacted in 2006 is wrong b. A congruence and proportionality review of the 2006 reauthorization of Section 5 does not pose any issue as to the constitutionality of the effect standard in particular B. The Supreme Court s Retrogression Construction Of The Section 5 Effect Standard Is Fully Consistent With, And Does Not Violate, The Fifth Amendment Guarantee Of Equal Protection, Which Texas Lacks Standing To Assert in any Event Texas s Equal Protection Claims contradict Supreme Court precedent The non-retrogression requirement does not trigger strict scrutiny review C. The Non-Retrogression Requirement Is Not Unconstitutionally Vague D. This Court s Application Of the Retrogression Standard Does Not Prompt Any Constitutional Concerns III. CONCLUSION i-

3 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 3 of 28 CASES TABLE OF AUTHORITIES Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)...14, 17 Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)...9, 10 Beer v. United States, 425 U.S. 130 (1976)... passim Castro County v. Crespin, 101 F.3d 121 (D.C. Cir. 1996)...2 City of Boerne v. Flores, 521 U.S. 507 (1997)... passim City of Rome v. United States, 446 U.S. 156 (1980)... passim Clark v. Roemer, 500 U.S. 646 (1991)...6 Coleman v. Court of Appeals, 132 S. Ct (2012)...10 Easley v. Cromartie, 532 U.S. 234 (2001)...15, 16 Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627 (1999)...10 Florida v. United States, 2012 U.S. Dist. LEXIS (Aug. 16, 2012)...16 Georgia v. Ashcroft, 539 U.S. 461 (2003)...12, 17 Gratz v. Bollinger, 539 U.S. 244 (2003)...17 Jehovah s Witnesses in Washington v. King C ty Hospital, 278 F. Supp. 488 (W.D. Wash. 1967)...2 Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) ii-

4 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 4 of 28 Lopez v. Monterey County, 525 U.S. 266 (1999)...7, 9 Metroil v. ExxonMobil Oil Corp., 672 F.3d 1108 (D.C. Cir. 2012)...2 Shaw v. Reno, 509 U.S. 630 (1993)....15, 16, 17 Miller v. Johnson, 515 U.S. 900 (1995)...15, 17 Morris v. Gressette, 432 U.S 491 (1977)...8 Nevada Dep t of Human Res. v. Hibbs, 538 U.S. 721 (2003)...10 Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193 (2009)...6, 8, 10, 13 Oregon v. Mitchell, 400 U.S. 112 (1970)...6 Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) , 15, 17 Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (1997)...5 Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000)...12 Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion)...17 Riley v. Kennedy, 553 U.S. 406 (2008)...12 Russell v. Hathway, 423 F. Supp. 833 (N.D. Tex. 1976)...2 Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012)... passim South Carolina v. Katzenbach, 383 U.S. 301 (1966)... passim -iii-

5 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 5 of 28 South Carolina v. United States, 2012 U.S. Dist. LEXIS (Oct. 12, 2012) Tennessee v. Lane, 541 U.S. 509 (2004)...10 United States v. Alaw, 327 F.3d 1217 (D.C. Cir. 2003)...2 United States v. Hays, 515 U.S. 737 (1995)...15 United States v. Morrison, 529 U.S. 598 (2000)...10 United States v. Ramsey, 353 F.2d 650 (5th Cir. 1965)...1 STATUTES 42 U.S.C. 1973c(b) & (d) of the Voting Rights Act, 42 U.S.C (a)(8) of the Voting Rights Act, 42 U.S.C. 1973b(a)(8) of the Voting Rights Act, 42 U.S.C. 1973c, and (2)... passim OTHER AUTHORITIES 76 Fed. Reg. 7470, 7472 (Feb. 9, 2011)...17 FIFTEENTH AMENDMENT... passim FIFTH AMENDMENT...11 FOURTEENTH AMENDMENT iv-

6 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 6 of 28 Defendant-Intervenors 1 respectfully submit this reply brief in support of their crossmotion for summary judgment and in opposition to the motion for summary judgment filed by the State of Texas. For the reasons set forth below and in Intervenors opening brief, this Court should uphold (1) Congress 2006 reauthorization of Section 5 of the Voting Rights Act, 42 U.S.C. 1973c, and (2) the Section 5 effect standard and the non-retrogression construction of that standard. I. THIS COURT IS BOUND BY THE D.C. CIRCUIT S RULING IN SHELBY COUNTY THAT CONGRESS 2006 REAUTHORIZATION OF SECTION 5 IS CONSTITUTIONAL. The overwhelming weight of authority is that three-judge district courts, including threejudge Section 5 courts, are bound by circuit precedent. Intervenors Brief at 8-9 (Doc ). Texas, nevertheless, again advances its wholly unsupported and meritless argument that Shelby County v. Holder, 679 F.3d 848 (D.C. Cir. 2012), cert. granted (Nov. 9, 2012), is not binding on this Court. Texas has not and indeed cannot identify a single case where a three-judge district court rejected its circuit s precedent or a circuit court specified that its decisions do not bind three-judge district courts located within that circuit. 2 1 This Reply is submitted on behalf of all Defendant-Intervenors, specifically, the Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of the Texas House of Representatives; the Texas League of Young Voters Education Fund, Imani Clark, KiEssence Culbreath, Demariano Hill, and Dominique Monday; the Kennie Intervenors (Eric Kennie, Anna Burns, Michael Montez, Penny Pope, Marc Veasey, Jane Hamilton, David De La Fuente, Lorraine Birabil, Daniel Clayton, and Sergio Deleon); the Texas Legislative Black Caucus, the League of Women Voters of Texas, the Justice Seekers, Peter Johnson, Ronald Wright, and Donald Wright; Southwest Workers Union, La Union Del Pueblo Entero; Victoria Rodriguez, Nicole Rodriguez, Southwest Voter Registration Education Project, Mi Familia Vota Education Fund. 2 Texas repeats its claim that the Fifth Circuit, in United States v. Ramsey, 353 F.2d 650 (5th Cir. 1965), unmistakably held that three-judge district courts in that circuit are not bound by circuit precedent. Texas Reply Brief at 3 n.2. However, as Texas concedes (see id.) that issue was not presented in Ramsey (see Intervenvors Brief at 9 n.3), and thus the Fifth Circuit could not have 1

7 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 7 of 28 That appeals from rulings by three-judge Section 5 courts are heard by the Supreme Court and, accordingly, circuit precedent may not be enforce[d] by the D.C. Circuit through the mechanism of an appeal to that court, does not, as Texas argues, create any contradiction that undercuts the precedential significance of circuit court decisions. Texas Reply Brief at 7 (Doc. 351). 3 The true contradiction would be if judges in this District, and D.C. Circuit judges, could freely ignore circuit precedent when they sit on a Section 5 panel, but are otherwise obliged to apply the very same precedent when, respectively, they sit singly in the district court, or with two other circuit judges on a circuit court panel. Stare decisis within federal circuits exists to ensure uniformity and predictability of decision-making within each circuit, and is not, as Texas would have it, simply a product of one court having power over another. 4 In addition, Texas contends that it is advancing several arguments that were not presented in Shelby County and were not rejected by the D.C. Circuit in that case. Texas Reply ruled on it. Indeed, a three-judge district court in the Fifth Circuit subsequently held that threejudge district courts in the Fifth Circuit are bound by circuit precedent. Russell v. Hathway, 423 F. Supp. 833, 835 (N.D. Tex. 1976). In its opening brief (at page 39), Texas identified just one three-judge district court that putatively held that circuit precedent may be disregarded; but this issue also was not presented in that 45-year old case and that court did not decline to follow circuit precedent, although the court did make an observation that it was governed only by Supreme Court decisions. Jehovah s Witnesses in Washington v. King C ty Hospital, 278 F. Supp. 488, (W.D. Wash. 1967). 3 Subsection (a) of Section 5 provides that any appeal [from a Section 5 three-judge district court decision] shall lie to the Supreme Court. But see Castro County v. Crespin, 101 F.3d 121, 124 (D.C. Cir. 1996) (an appeal from an attorneys fee ruling by a three-judge Section 5 court is heard by the circuit court). 4 For example, it is the standard rule in all federal circuit courts, including the D.C. Circuit, that one three-judge circuit panel is bound by a prior decision on point by another panel, notwithstanding the fact that the earlier panel cannot enforce its decision against the subsequent panel. See United States v. Alaw, 327 F.3d 1217, 1220 (D.C. Cir. 2003) (law of the circuit). Similarly, when a federal court is called upon to construe state law, it is bound by rulings on that issue by that state s highest court, although the state court lacks the capability to enforce compliance by the federal court. E.g., Metroil v. ExxonMobil Oil Corp., 672 F.3d 1108, 1113 (D.C. Cir. 2012) (applying decisions of the D.C. Court of Appeals). 2

8 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 8 of 28 Brief at 9. However, Texas made precisely the opposite representation in its opening brief, Texas SJ Brief at 38 (Doc. 347), where it stated that its facial challenge to the 2006 reauthorization does not present any issue not resolved in Shelby County. Texas should not be allowed to switch its position in its reply. In any event, Texas s only example of a supposedly new argument is its claim that litigation under Section 2 of the Voting Rights Act, 42 U.S.C. 1973, is now an adequate remedy for voting discrimination occurring in the covered areas, Texas Reply Brief at 9-10, an issue fully addressed in Shelby County. 679 F.3d at 872 (holding that Congress appropriately concluded, based on the evidence it received, that Section 2 case-bycase litigation... would be ineffective to protect the rights of minority voters in the covered areas) (quoting H.R. Rep. No , at 57). 5 Finally, Texas contends that Intervenors and the United States do not cite any examples of constitutional violations committed in section 5 jurisdictions that could not be effectively remedied in section 2 litigation, and objects to supposed conclusory statements from the legislative record that section 2 litigation is [inadequate]. Texas Reply Brief at 8-9. Yet, the D.C. Circuit in Shelby County specifically discussed the extensive evidence Congress relied upon in concluding that Section 2 litigation would be ineffective to protect the rights of minority voters, which included evidence regarding the numerous problems Section 2 litigation poses and the magnitude and persistence of discrimination in covered jurisdictions. Shelby County, 679 F.3d at Texas asserts that the reason Congress enacted, and then extended, Section 5 is that federal judges in the South could not be trusted to faithfully enforce the Fifteenth Amendment and federal voting-rights laws. Texas Reply Brief at 10. But this claim has no support in the Supreme Court s decisions upholding Section 5 s enactment and reauthorization, which are premised on Congress authority to remedy intentional voting discrimination in the covered states and localities. City of Rome v. United States, 446 U.S. 156, (1980); South Carolina v. Katzenbach, 383 U.S. 301, (1966). 3

9 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 9 of 28 As to constitutional violations in Section 5 jurisdictions, the circuit court in Shelby County discussed at great length the evidence on which Congress based its conclusion that serious and widespread intentional discrimination [has] persisted in covered jurisdictions. Id. Intervenors, in their opening brief, also summarized the evidence that demonstrates that voting discrimination in Texas, in particular, has persisted since the State became covered in 1975, and since Congress 1982 reauthorization of Section 5. Intervenors Brief at 2-7. Texas fails entirely in either its opening brief or its reply to address the legislative record that supported the 2006 reauthorization, which was over 15,000 pages in length, and includ[ed] statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination. Shelby County, 679 F.3d at 856 (internal quotation marks omitted). Texas attempts to summarily dismiss its record of ongoing discrimination by labeling Intervenors summary an ad hominem attack on the State of Texas. Texas Reply Brief at 8. However, that record relates directly to Congress rationale for reauthorizing Section 5, and thus is fully relevant to the constitutionality of the 2006 reauthorization. II. THE SECTION 5 EFFECT STANDARD, AND THE SUPREME COURT S NON-RETROGRESSION CONSTRUCTION OF THAT STANDARD, ARE CONSTITUTIONAL. A. The Section 5 Effect Standard Is Constitutional On Its Face. 1. Texas is making a facial challenge to the effect standard. Texas asserts in its reply brief that it is only challenging the constitutionality of the Supreme Court s non-retrogression construction of the Section 5 effect standard, not the facial validity of the effect standard itself, and that Intervenors and the United States (in their opening briefs) falsely characterize[d] Texas as making such a facial challenge. Texas Reply Brief at 12. That, however, is not an accurate characterization of what the State is arguing. 4

10 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 10 of 28 In both its opening and reply briefs, Texas asserts that Section 5 is constitutional only to the extent that it prohibits discrimination barred by the Fifteenth Amendment. This claim, if true, would bar Congress from having enacted any effect standard (however defined) since, as Texas recognizes (Texas Reply Brief at 2), the Fifteenth Amendment only prohibits voting practices that have a discriminatory purpose. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997) (Bossier I). In particular, Texas argues that any proscription that addresses more than discriminatory purpose would not be congruent and proportional, under the Supreme Court s rulings in City of Boerne v. Flores, 521 U.S. 507 (1997), and subsequent cases: By blocking every new voting-related measure in covered jurisdictions, and placing the burden of proof on the State to demonstrate the absence of purposeful racial discrimination, section 5 already ensures that covered jurisdictions will be unable to enact or enforce new laws that violate the Fifteenth Amendment. There is therefore no constitutional basis on which to impose additional prophylactic requirements (such as proof of nonretrogression ) on States seeking preclearance. Texas SJ Brief at 3-4 (emphasis omitted). 6 Texas says that the effects prong does not become surplusage under its theory because Section 5 still could prohibit laws that have the purpose or effect of violating the Fifteenth Amendment. Texas Reply Brief at 12. However, Texas s reference to effect is simply word-play since the Fifteenth Amendment only forbids purposeful discrimination. Texas also says that, under its approach, Congress constitutionally could prohibit any voting practice enacted with the purpose of [violating the Fifteenth Amendment] or... implemented in a 6 Likewise, in its reply brief, Texas emphasizes that [t]he touchstone [for what Section 5 may prohibit] is whether the state law violates or will violate the Fifteenth Amendment, Texas Reply Brief at 12, and that Congress may [not] require covered jurisdictions to prove nonretrogression in addition to proving compliance with the Fifteenth Amendment. Id. at 18 (emphasis in original). 5

11 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 11 of 28 racially biased manner. Id. But, again, by racially biased implementation, Texas can only be referring to implementation that is purposefully discriminatory. 7 For these reasons, Texas is indeed asserting a facial challenge to the Section 5 effect standard, and Intervenors and the United States appropriately have responded to Texas s briefing by urging this Court to uphold the facial validity of that standard. 2. The Section 5 effect standard is constitutional. The lynchpin of Texas s challenge to the effect standard is its claim that the standard was reenacted in 2006, and that the standard s constitutionality, therefore, purportedly must be reexamined pursuant to the Supreme Court s congruence and proportionality jurisprudence and the analytic framework discussed by the Supreme Court in Nw. Austin Mun. Utility Dist. No. One v. Holder, 557 U.S. 193 (2009). 8 At bottom, Texas s challenge to the effect standard is nothing more than a re-packaged attack on the 2006 reauthorization of Section 5 and, accordingly, is precluded by the D.C. 7 Moreover, the State s contention that Section 5 may bar discriminatory implementation of voting practices makes no sense since preclearance reviews occur pre-implementation. Clark v. Roemer, 500 U.S. 646, 652 (1991) ( A voting change in a covered jurisdiction will not be effective as law until and unless [it is] cleared [by the District of Columbia District Court or the Attorney General]. ) (internal quotation marks omitted.)). 8 Texas does make one other claim, that the Supreme Court s decision in Oregon v. Mitchell, 400 U.S. 112 (1970), stands for the proposition that [t]he only circumstance in which Congress may abridge the States constitutionally protected authority to set voter qualifications for state and local elections is when a state voting qualification violates the Fifteenth, Nineteenth, and Twenty-Sixth Amendments. Texas Reply Brief at 34. But Texas s argument in this regard is predicated on citing one part of the Oregon v. Mitchell decision where the Court held that Congress had exceeded its authority when it sought to lower the voting age in state and local elections and completely ignoring the other where the Court unanimously upheld Congress Fifteenth Amendment authority to prohibit voter qualifications that may be discriminatory only in effect and thus might not violate the Fifteenth Amendment. City of Rome, 446 U.S. at The State s theory also is obviously incompatible with South Carolina v. Katzenbach, where the Court made clear that Congress may... prohibit state action... not violative of 1 [of the Fifteenth Amendment]. Id. at

12 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 12 of 28 Circuit s ruling in Shelby County. As Intervenors have demonstrated, and as is discussed again below, Texas s reenactment theory is a chimera. Intervenors Brief at Because the Supreme Court has definitively upheld the constitutionality of the effect standard first in City of Rome v. United States, 446 U.S. at , and then by reaffirming Rome in City of Boerne v. Flores, 521 U.S. at 532, and Lopez v. Monterey County, 525 U.S. 266, (1999) the standard remains in force, subject only to a final determination of whether Congress acted within its constitutional authority when it reauthorized Section 5, in its entirety, in In addition (as is also discussed below), even if one were to assume, as the United States has done (DOJ Brief at (Doc )), that the 2006 reauthorization might prompt a reexamination of the effect standard s constitutionality, the only issue in that regard would be whether Congress legislated in 2006 based on a record of intentional discrimination specially located in the covered jurisdictions, an issue which Shelby County has resolved for purposes of this Court s decision. 9 a. Texas s claim that the effect standard was separately reenacted in 2006 is wrong. Texas s reenactment theory has no support in fact or in Section 5 jurisprudence. Factually, the theory does not reflect the reality of how Congress legislated in Congress amended Section 4(a)(8) of the Voting Rights Act, 42 U.S.C. 1973b(a)(8), to replace Section 5 s 2007 sunset date with a new date of 2031, thereby carrying forward, as a group, all components of the preclearance mechanism. These included: the purpose and the effect standards; the placement of the burden of proof on covered jurisdictions; the provision that preclearance applies to all voting practices but is triggered only when voting practices are 9 For the same reasons, even if Texas were correct that its challenge relates only to the nonretrogression requirement, and not to the facial validity of the effect standard, its claim ultimately is foreclosed by Shelby County. 7

13 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 13 of 28 changed; the requirement that preclearance litigation be filed in the District of Columbia District Court and be heard by a three-judge panel; and the provisions relating to administrative preclearance reviews by the Attorney General. The reauthorization did not include any provision specifically aimed at continuing the effect standard in force. 10 The Section 5 case law also does not support Texas s theory. None of the judicial analyses addressing the validity of a Section 5 reauthorization has separately considered the validity of components of the preclearance mechanism that were not altered by reauthorization. Nw. Austin, 557 U.S. at ; City of Rome, 446 U.S. at ; Shelby County, supra. Likewise, none of the decisions regarding the validity of the preclearance components has been based on, or involved any analysis of, the time-limited nature of the preclearance remedy or reauthorization. City of Rome, 446 U.S. at ( effect standard); Katzenbach, 383 U.S. at (application of Section 5 to new voting provisions; allocation of burden of proof; jurisdictional limitation to the District of Columbia Court). See also Morris v. Gressette, 432 U.S 491, (1977) (upholding the Attorney General s administrative review process against a challenge asserting that preclearance decisions should be judicially reviewable). Accordingly, the 2006 reauthorization does not prompt any renewed examination of Congress authority to prohibit the preclearance of voting changes that have a discriminatory effect Congress did amend Section 5 to clarify the scope of the retrogression standard, 42 U.S.C. 1973c(b) & (d), but that did not relate to the continuing use of the effect standard generally. Instead, the amendments dealt only with the manner in which the retrogression standard is to be applied to certain types of voting changes. Shelby County, 679 F.3d at Texas asserts that Intervenors make no effort to reconcile the [ effect standard] with City of Boerne. Texas Reply Brief at 16. This is not correct. Rather, Intervenors have explained that the Supreme Court already has recognized, first in City of Boerne, 521 U.S. at 532, and then in 8

14 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 14 of 28 b. A congruence and proportionality review of the 2006 reauthorization of Section 5 does not pose any issue as to the constitutionality of the effect standard in particular. As discussed by the United States in its opening brief, DOJ Brief at 26-38, if the 2006 reauthorization were to trigger a new congruence and proportionality review of the effect standard, the standard clearly passes muster under the Supreme Court s three-step congruence and proportionality analysis. See Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 365, 368, 372 (2001) (discussing the three analytic steps). Texas ignores the specified three-step review entirely, and merely proffers the unsupported and conclusory assertion that the effect standard is not congruent and proportional. Texas Reply Brief at 12-21; Texas SJ Brief at Lopez, 525 U.S. at , that the standard is fully consistent with, and valid under, a congruence and proportionality review. In this regard, Texas acknowledges (as it must) that the Supreme Court, in Boerne, referred with approval to the Court s holding in Rome sustaining the effect standard, but attempts to discredit this by claiming that the Court s statement of approval was quite hedged. Texas Reply Brief at 19. According to Texas, when the Boerne Court cited approvingly to Rome what the Court actually was saying was that the holding in Rome was being re-examined and reconstrued. However, the Court did nothing more in Boerne than cite to Rome as support for its discussion of its holding in Boerne, and said nothing about any putative re-examination of Rome. Texas also asserts that Lopez and Rome are not relevant to Texas s constitutional claim because the decisions addressed the constitutionality of the effect standard and not the constitutionality of the non-retrogression construction of that standard. However, as explained above, Texas is in fact challenging the facial validity of the effect standard, notwithstanding its protestation to the contrary. 12 As noted, Texas contends that the effect standard is not congruent and proportional merely because it prohibits conduct not barred by the Fifteenth Amendment. But the fundamental principle underlying congruence and proportionality is that, in appropriate circumstances, Congress may establish remedies that do extend beyond those provided by the Constitution itself. Lopez, 525 U.S. at ( legislation which deters or remedies constitutional violations can fall within the sweep of Congress enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States ) (quoting Boerne, 521 U.S. at 518). 9

15 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 15 of 28 As the United States has noted, steps two and three must not be conflated. DOJ Brief at 29. Step two involves a determination of whether Congress, in 2006, legislated based on a pattern of intentional discrimination in voting. Garrett, 531 U.S. at 368. In Shelby County, the D.C. Circuit held that Congress did so. Step three involves an examination of whether the particular remedy selected by Congress is congruent and proportional to the pattern of discrimination. Id. at 372. As to this issue, the Supreme Court already has determined that the preclearance procedure including the effect standard is an appropriate remedy for an ongoing pattern of voting discrimination that is located, in particular, in the Section 5 jurisdictions. Thus, as explained by the Supreme Court in Nw. Austin, the reauthorization in 2006 only prompts a re-examination of whether voting discrimination is ongoing and still is centered in the covered areas; it does not occasion any question as to whether the un-amended features of the Section 5 remedy otherwise are appropriate. 557 U.S. at ; see also Shelby County, 679 F.3d at 858 (identifying the two principal inquiries set forth by Nw. Austin). 13 Courts determine whether a particular enactment falls on the constitutional or unconstitutional side of the line by applying congruence and proportionality s three-step analysis (or the South Carolina v. Katzenbach rational means analysis, if that is the test). Texas has failed to do this. 13 Step three of the congruence and proportionality test generally plays a lesser role in the application of that test. As the D.C. Circuit observed in Shelby County, [o]nce satisfied that Congress has identified a pattern of constitutional violations,... the [Supreme] Court has deferred to Congress s judgment F.3d at 859; id. at 860 (discussing Nevada Dep t of Human Res. v. Hibbs, 538 U.S. 721 (2003), and Tennessee v. Lane, 541 U.S. 509 (2004)). The cases in which the Court has struck down federal statutes have involved a legislative record [marked by] a virtually complete absence of evidence of unconstitutional state conduct. Id. at 860 (internal quotation marks omitted). See Coleman v. Court of Appeals, 132 S. Ct. 1327, (2012); Garrett, 531 U.S. at 370; Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89 (2000); Fla. Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 640 (1999); City of Boerne v. Flores, 521 U.S. at 530. The only time the Court has relied on step three to overturn a congressional enactment supported by a record of constitutional violations was where Congress imposed a remedy on private actors based on the Fourteenth Amendment, notwithstanding that the Amendment only applies to state action. United States v. Morrison, 529 U.S. 598 (2000). 10

16 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 16 of 28 For these reasons, the D.C. Circuit in Shelby County applied the congruence and proportionality test to the 2006 reauthorization by addressing step two of that test, and, having concluded that the reauthorization passes muster there, did not then proceed to evaluate the particular features of the preclearance remedy under step three. Thus, even if one were to now undertake a re-evaluation of the effect standard under congruence and proportionality, that would simply lead back to the question whether the 2006 reauthorization, as a whole, is constitutional. B. The Supreme Court s Retrogression Construction Of The Section 5 Effect Standard Is Fully Consistent With, And Does Not Violate, The Fifth Amendment Guarantee Of Equal Protection, Which Texas Lacks Standing To Assert In Any Event. As a threshold matter, the State of Texas does not have standing to assert that Congress violated the Fifth Amendment s implied guarantee of equal protection. It is well established that States are not a person within the meaning of the Fifth Amendment. Katzenbach, 383 U.S. at ( The word person in the context of the Due Process Clause of the Fifth Amendment cannot, by any reasonable mode of interpretation, be expanded to encompass the States of the Union, and to our knowledge this has never been done by any court. ). It also should be noted that Texas s First Amended Complaint (Doc. 63-1) does not include any allegation that Section 5 violates equal protection. 1. Texas s Equal Protection Claims contradict Supreme Court precedent. As explained in Intervenors initial memorandum, Intervenors Brief at 25-27, Texas s claim that the retrogression standard violates equal protection is flatly contradicted by 36 years of Supreme Court precedent, which has construed the Section 5 effect standard to prohibit voting changes that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Beer v. United States, 425 U.S. 11

17 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 17 of , 141 (1976). See also, e.g., Riley v. Kennedy, 553 U.S. 406, 412 (2008) (citing the retrogression standard with approval); Georgia v. Ashcroft, 539 U.S. 461 (2003) (applying the non-retrogression requirement to a redistricting plan enacted by the State of Georgia); Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 333 (2000) (Bossier II) (reaffirming the standard in response to an argument that did not explicitly contend that Beer should be overruled, [but]... all but [did] so ). Texas s complaint that the retrogression standard is asymmetric and that it allegedly requires covered jurisdictions to engage in improper race-conscious decision-making simply cannot be squared with the requirement that covered jurisdictions formulate their voting changes so as to not retrogress the [electoral] position of racial minorities. 2. The non-retrogression requirement does not trigger strict scrutiny review. Texas claims for the first time, in its reply brief, that the Supreme Court s nonretrogression requirement establishes a racial classification by extending legal protections only to members of racial and language minorities and withholding those protections from nonminority voters. Texas Reply Brief at 21. The United States, in its opening brief, somewhat differently observed that the non-retrogression principle... has a race-conscious, but limited[,] substantive goal. DOJ Brief at 38 (internal quotation marks omitted; brackets in original). The United States then explained why the standard would satisfy a strict scrutiny review, but did not address the threshold issue whether such a review is triggered in the first place. Id. at For the following reasons, the retrogression standard established by the Supreme Court in Beer does not trigger strict scrutiny. 14 First, the Supreme Court s unambiguous and unconditional reliance upon the nonretrogression principle is devoid of any suggestion that the principle must satisfy strict scrutiny. 14 Intervenors agree with the United States that, if the strict scrutiny were applicable, it would be satisfied here. 12

18 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 18 of 28 This weighs strongly, if not conclusively, against the application of strict scrutiny. The Supreme Court, of course, was well aware of the strict scrutiny jurisprudence when it decided Beer, as well as when it decided subsequent cases that relied upon Beer. Second, strict scrutiny is not the test used to judge the facial validity of Section 5 s prohibitions, or other remedies enacted by Congress to address racial discrimination in voting. Rather, the well-established test is whether the remedy appropriately responds to the nature and scope of voting discrimination in this country. Katzenbach, 383 U.S. at 308 ( The constitutional propriety of the Voting Rights Act of 1965 must be judged with reference to the historical experience which it reflects. ). See also Nw. Austin, 557 U.S. at 203 (holding that the constitutionality of the 2006 reauthorization depends on whether the reauthorization was based on current needs in the covered areas, and whether Section 5 s geographic coverage is sufficiently related to the problem that [Section 5] targets ); City of Boerne, 521 U.S. at 525 (emphasizing that the determination of whether civil rights statutes, including the Voting Rights Act, are appropriately remedial hinges on the inquiry identified in Katzenbach); City of Rome, 446 U.S at 177 (the Section 5 effect standard is justified by the concern that changes by jurisdictions with a demonstrable history of intentional racial discrimination in voting create the risk of purposeful discrimination ). In examining the Voting Rights Act based on historical experience, courts are required to give substantial deference to Congress determinations, regardless of whether the historical record ultimately is viewed through the lens of the Boerne congruence and proportionality analysis or the Katzenbach rational means review. 15 Shelby County, 679 F.3d at 861 ( when 15 That an assessment of the historical experience is the key, regardless of whether congruence and proportionality or rational means governs, is clear from the Supreme Court s decision in Nw. Austin. 521 U.S. at 204 (declining to resolve which test applies),

19 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 19 of 28 Congress acts pursuant to its enforcement authority under the Reconstruction Amendments, its judgments about what legislation is needed... are entitled to much deference in applying congruence and proportionality to that legislation) (quoting City of Boerne, 521 U.S. at 536); Katzenbach, 383 U.S. at 326 (Congress may use any rational means to enforce the Fifteenth Amendment since Congress is chiefly responsible for implementing the rights created in [the Amendment], and has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting. ). See also Shelby County, 679 F.3d at 860 ( When Congress seeks to combat racial discrimination in voting... it acts at the apex of its power. ). Strict scrutiny, in contrast, does not involve substantial deference to congressional enactments. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, (1995). Thus, applying strict scrutiny to the non-retrogression requirement (or to the effect standard on its face) is fundamentally at odds with the Supreme Court s jurisprudence regarding the constitutionality of Section 5. Third, that the non-retrogression requirement prompts jurisdictions to have an awareness of the position of racial minorities with respect to their effective exercise of the electoral franchise, Beer, 425 U.S. 141, does not make it a racial classification. This is not a raceconscious provision since it does nothing more than bar voting discrimination in a manner keyed to the historical experience that led to the enactment of the Voting Rights Act and which, most recently, prompted Congress to reauthorize Section 5 for an additional period of years. In any event, race-conscious decision-making, in enacting voting provisions or otherwise, does not, in and of itself, render a governmental action constitutionally suspect. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 789 (2007) (Kennedy, J., (describing the questions posed by the 2006 reauthorization regarding the nature and scope of modern voting discrimination without reference to one test or the other). 14

20 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 20 of 28 concurring in part and concurring in the judgment) (awareness of race in site selection of new schools, drawing of attendance zones, allocation of resources for special programs, and recruitment of students and faculty are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible ); id. citing Bush v. Vera, 517 U.S. 952, 958 (1996) (plurality opinion) ( Strict scrutiny does not apply merely because redistricting is performed with consciousness of race ); Shaw, 509 U.S. 630, 642 (1993) ( This Court never has held that race-conscious state decision-making is impermissible in all circumstances. What appellants object to is redistricting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles. ) (emphasis in original). Instead, race-conscious decision-making absent an explicit racial classification only triggers strict scrutiny in the limited and extreme circumstance where it constitutes the functional equivalent of an explicit racial classification. Thus, in Shaw v. Reno, and subsequent cases, the Supreme Court held that a redistricting plan will be considered a racial classification of individuals if, based on the bizarre shape of an election district or other evidence going to racial purpose, it is established that that race was the predominant factor underlying the line drawing and the decisionmaker subordinated traditional race-neutral districting principles... to racial considerations. Miller v. Johnson, 515 U.S. 900, 916 (1995). Even so, an individual s standing to challenge a redistricting plan as an unconstitutional racial classification rests upon a citizen [being] able to demonstrate that he or she, personally, has been injured by that kind of racial classification. United States v. Hays, 515 U.S. 737, 744 (1995). See also Easley v. Cromartie, 532 U.S. 234, (2001) (proof required to establish that a race-conscious [facially neutral] 15

21 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 21 of 28 voting enactment constituted a racial classification is... demanding ; the challenger must show that a facially neutral law is unexplainable on grounds other than race. ) (internal quotation marks omitted). 16 The non-retrogression requirement does not induce and certainly does not mandate a focus on race that could be equated with an explicit racial classification. As demonstrated by this Court s application of the retrogression standard to Texas s photo ID requirement, and also by this District Court s application of the standard to the ballot access provisions at issue in South Carolina v. United States, 2012 U.S. Dist. LEXIS (Oct. 12, 2012), and Florida v. United States, 2012 U.S. Dist. LEXIS (Aug. 16, 2012), the non-retrogression requirement allows covered jurisdictions wide latitude in designing their voting laws, and does not require them to subordinate valid interests regarding the administration of elections to considerations of race. As this Court explained in its opinion denying preclearance to the photo ID requirement: Specifically, we have decided nothing more than that, in this particular litigation and on this particular record, Texas has failed to demonstrate that its particular voter ID law lacks retrogressive effect. Nothing in this opinion remotely suggests that section 5 bars all covered jurisdictions from implementing photo ID laws. To the contrary, under our reasoning today, such laws might well be precleared if they ensure (1) that all prospective voters can easily obtain free photo ID, and (2) that any underlying documents required to obtain that ID are truly free of charge U.S. Dist. LEXIS , at * Indeed, the Supreme Court has specifically recognized that the retrogression standard is different than, and may not be equated with, the type of predominantly race-driven decision- 16 In general, redistrictings do not classify voters on the basis of race and are facially neutral. See Shaw, 509 U.S. at 646 ( A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. ). 16

22 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 22 of 28 making the Court addressed in Shaw and Miller. Shaw v. Reno, 509 U.S. at 655 (jurisdictions may address race so as to enact non-retrogressive redistricting plans so long as they do not go beyond what was reasonably necessary to avoid retrogression. ); see also Department of Justice Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7470, 7472 (Feb. 9, 2011) (the non-retrogression principle does not require jurisdictions to enact voting changes that would be contrary to Shaw and Miller). 17 Unlike the retrogression standard, the enactments that have triggered strict scrutiny in recent years involved the government distribut[ing] burdens or benefits on the basis of individual racial classifications. Parents Involved in Cmty. Sch., 551 U.S. at For these reasons, strict scrutiny simply has no application here. C. The Non-Retrogression Requirement Is Not Unconstitutionally Vague. The non-retrogression requirement provides a clear standard for judging whether voting changes enacted by covered jurisdictions would have a discriminatory effect. Intervenors Brief 17 In Georgia v. Ashcroft, 539 U.S. at 491, Justice Kennedy, in his concurring opinion, expressed concern about the non-retrogression requirement, but only because he concluded that the State of Georgia may have violated the Supreme Court s caution in Shaw regarding the limits of the non-retrogression principle by relying upon race [as] a predominant factor in drawing the lines of its state senate redistricting plan. 18 See, e.g., Parents Involved in Cmty. Sch., 551 U.S. at ( The school districts in these cases voluntarily adopted student assignment plans that rely upon race to determine which public schools certain children may attend ), 720 (applying strict scrutiny to the student assignment plans); Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (applying strict scrutiny where the university s admissions policy automatically awarded a certain number of points to every single underrepresented minority applicant solely because of race ); Adarand Constructors, Inc., 515 U.S. at 227 (applying strict scrutiny to a law providing for additional compensation to contractors who hire subcontractors who are socially and economically disadvantaged individuals, where such individuals are presumed by statute to include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities ); Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) (applying strict scrutiny to a city s plan requiring contractors to whom the city awarded construction contracts to subcontract at least 30% of the dollar amount of the contract to minority owned businesses). 17

23 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 23 of 28 at In its reply, Texas repeats its complaint that the Beer standard is allegedly unbounded and unfair, Texas Reply Brief at 26-34, but does not offer any new arguments in that regard. Accordingly, Intervenors respectfully refer the Court to their discussion of this issue in their opening brief. 19 D. This Court s Application Of The Retrogression Standard Does Not Prompt Any Constitutional Concerns. Finally, Texas repeats its claim that this Court applied the non-retrogression requirement in an unconstitutional manner. Texas Reply Brief at Intervenors also respectfully refer the Court to their discussion of this issue in their opening brief (at 35-37). III. CONCLUSION For the reasons set forth above and in their prior brief, Defendant-Intervenors respectfully urge this Court to grant their cross-motion for summary judgment and to deny the motion for summary judgment filed by the State of Texas. Dated: November 13, 2012 /s/ Ezra D. Rosenberg Ezra D. Rosenberg (D.C. Bar No ) Michelle Hart Yeary (Pro Hac Vice) Dechert LLP 902 Carnegie Center, Suite 500 Princeton, NJ (609) (phone) Ezra.rosenberg@dechert.com Michelle.yeary@dechert.com Jon Greenbaum (D.C. Bar No ) Mark A. Posner (D.C. Bar No ) 19 One point that should be noted, however, is that Texas repeatedly, and incorrectly, asserts in its reply brief that the non-retrogression requirement is merely a disparate impact standard. However, as this District Court explained most recently in South Carolina v. United States, 2012 U.S. Dist. LEXIS at *28, in order for a jurisdiction s new ballot access provision to be retrogressive, it must both disproportionately and materially burden[] minority voters, and that burden must exist when measured against the pre-existing law. 18

24 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 24 of 28 Robert A. Kengle Lawyers Committee for Civil Rights Under Law 1401 New York Ave., NW, Suite 400 Washington, D.C (202) (phone) Wendy Weiser (Pro Hac Vice) Myrna Pérez (Pro Hac Vice) Ian Vandewalker (Pro Hac Vice) The Brennan Center for Justice at NYU Law School 161 Avenue of the Americas, Floor 12 New York, NY Gary Bledsoe Law Office of Gary L. Bledsoe & Associates 316 West 12th St., Suite 307 Austin, TX (512) (phone) Victor L. Goode NAACP National Headquarters 4805 Mt. Hope Dr. Baltimore, MD (410) (phone) Robert S. Notzon (D.C. Bar No. TX0020) The Law Office of Robert Notzon 1507 Nueces St. Austin, TX (512) (phone) Jose Garza Law Office of Jose Garza 7414 Robin Rest Dr. San Antonio, TX (210) (phone) 19

25 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 25 of 28 Counsel for Defendant-Intervenors Texas State Conference of NAACP Branches and the Mexican American Legislative Caucus of Texas House Representatives Debo P. Adegbile (DC Bar No. NY0143) Elise C. Boddie (Pro Hac Vice) Ryan Haygood (DC Bar No. NY0141) Dale E. Ho (DC Bar No. NY0142) Leah C. Aden (Pro Hac Vice) Natasha M. Korgaonkar (Pro Hac Vice) NAACP Legal Defense and Educational Fund, Inc. 99 Hudson Street, Suite 1600 New York, NY (212) /Fax: (212) FRIED, FRANK, HARRIS SHRIVER & JACOBSON LLP Douglas H. Flaum (Pro Hac Vice) Michael B. de Leeuw (Pro Hac Vice) Adam Harris (Pro Hac Vice) One New York Plaza New York, NY (212) Counsel for Texas League of Young Voters Education Fund, Imani Clark, Kiessence Culbreath, Demariano Hill, and Dominique Monday J. Gerald Hebert (D.C. Bar No ) Attorney at Law 191 Somerville Street, #405 Alexandria, VA Telephone: Chad W. Dunn (D.C. Bar No ) Texas Bar No Brazil & Dunn LLP 4201 Cypress Creek Pkwy., Suite

26 Case 1:12-cv RMC-DST-RLW Document 352 Filed 11/13/12 Page 26 of 28 Houston, Texas Telephone: (281) Facsimile: (281) Counsel for Kennie Defendant-Intervenors John Kent Tanner (D.C. Bar No ) 3743 Military Road, N.W. Washington, DC (202) Nancy Abudu (Pro Hac Vice) Moffatt Laughlin McDonald (D.C. Bar No. WI0023) American Civil Liberties Union Foundation Inc. 230 Peachtree Street NW, Suite 1440 Atlanta, GA (404) /Fax: (404) Rebecca Robertson (Pro Hac Vice) American Civil Liberties Union Foundation of Texas 1500 McGowan Street Houston, Texas (713) Donita Judge (D.C. Bar No ) Katherine Culliton-Gonzalez (D.C. Bar No ) Penda Hair (D.C. Bar No ) Advancement Project 1220 L Street, NW, Suite 850 Washington, DC (202) djudge@advancementproject.org kcullitongonzalez@advancementproject.org Counsel for Justice Seekers, League of Women Voters of Texas, Texas Legislature Black Caucus, Donald Wright, Peter Johnson, Ronald Wright, 21