IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 1 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, et al. Case No. 1:12-cv (DST, RMC, RLW) Defendants. PLAINTIFF S MOTION FOR SUMMARY JUDGMENT The State of Texas respectfully moves for summary judgment on Claim Two of the First Amended Expedited Complaint for Declaratory Judgment. Specifically, the State seeks summary judgment on the ground that section 5 of the Voting Rights Act of 1965, as amended and reauthorized by the Voting Rights Act Reauthorization and Amendments Act of 2006 ( Section 5 ), is unconstitutional, both on its face and as interpreted by this Court. There are no genuine issues of material fact, and the State is entitled to judgment as a matter of law. Consistent with Local Civil Rule 7, the State is filing a statement of material facts, a proposed order, and a memorandum of points and authorities supporting this Motion. The State does not request oral argument on this Motion. The State of Texas respectfully asks this Court to enter an order granting the State s Motion for Summary Judgment. 1

2 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 2 of 58 Dated: October 1, 2012 Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General P.O. Box Austin, Texas (512) ADAM K. MORTARA JOHN M. HUGHES Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL Tel: (312) Fax: (312) Counsel for the State of Texas 2

3 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 3 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, et al. Case No. 1:12-cv (DST, RMC, RLW) Defendants. STATEMENT OF MATERIAL FACTS IN SUPPORT OF PLAINTIFFS MOTION FOR SUMMARY JUDGMENT Consistent with Federal Rule of Civil Procedure 56 and Local Civil Rule 7(h), the State of Texas respectfully submits the following statement of material facts for which Texas contends there is no genuine issue. 1. In 2006, Congress amended the Voting Rights Act and reauthorized the statute for another twenty-five years. Fannie Lou Hamer, Rosa Parks and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, Pub. L. No , 120 Stat All facts material to the resolution of Texas s Motion for Summary Judgment are contained in the text of the statute and in the congressional record. The contents of the congressional record is a matter of public record, subject to judicial notice, and not subject to dispute. 1

4 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 4 of 58 Dated: October 1, 2012 Respectfully submitted. GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General /s/ Jonathan F. Mitchell JONATHAN F. MITCHELL Solicitor General P.O. Box Austin, Texas (512) ADAM K. MORTARA JOHN M. HUGHES Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL Tel: (312) Fax: (312) Counsel for the State of Texas 2

5 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 5 of 58 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF TEXAS, Plaintiff, v. ERIC H. HOLDER, JR., in his official capacity as Attorney General of the United States, et al. Case No. 1:12-cv (DST, RMC, RLW) Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGMENT GREG ABBOTT Attorney General of Texas DANIEL T. HODGE First Assistant Attorney General OFFICE OF THE ATTORNEY GENERAL P.O. Box (MC 059) Austin, Texas Tel.: (512) Fax: (512) JONATHAN F. MITCHELL Solicitor General Counsel of Record ADAM K. MORTARA JOHN M. HUGHES Bartlit Beck Herman Palenchar & Scott LLP 54 W. Hubbard Street, Suite 300 Chicago, IL Tel: (312) Fax: (312) COUNSEL FOR THE STATE OF TEXAS

6 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 6 of 58 TABLE OF CONTENTS Table of Authorities... iii Summary of Argument... 2 I. Section 5, as Interpreted by this Court, Exceeds Congress s Power to Enforce the Fifteenth Amendment A. Section 5 s Nonretrogression Doctrine Must Satisfy the Congruence and Proportionality Test of City of Boerne v. Flores... 9 B. Section 5, As Interpreted by This Court, Fails the Congruence and Proportionality Test Because It Prohibits Far More Constitutional Conduct Than Is Necessary to Effectively Enforce the Fifteenth Amendment Section 5 s Preclearance Requirement, Which Prohibits New Voting Laws in Covered Jurisdictions From Taking Effect Until the State Proves That They Comply With the Fifteenth Amendment, Removes Any Possible Justification for the Prophylaxis of a Substantive Nonretrogression Requirement Section 5, As Interpreted By This Court, Is Unconstitutional Under City of Boerne and Kimel v. Florida Board of Regents Because It Prohibits Substantially More Voting-Related Laws Than Would Be Held Unconstitutional under the Fifteenth Amendment Section 5, As Interpreted by This Court, Is Irreconcilable with Oregon v. Mitchell Because It Infringes The States Prerogatives To Set Voting Qualifications for State and Local Elections Without Credible Congressional Findings That Those Voter Qualifications Have Been Used to Disenfranchise Voters On Account of Race City of Rome v. United States Does Not Allow This Court To Reject The State s Constitutional Challenge to the Nonretrogression Doctrine II. Section 5, As Interpreted By This Court, Violates the Equal Protection Clause By Conferring Asymmetric Protections on Voters of Different Races and Forcing Covered Jurisdictions to Engage in Race-Based Decisionmaking i

7 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 7 of 58 III. Section 5, As Interpreted By This Court, Is Unconstitutionally Vague Because It Fails to Give States Fair Notice of What Laws Are Prohibited And Gives Unelected Federal Officials a Discretionary Veto Power Over State Laws IV. There Is Insufficient Evidence in the Legislative Record of the 2006 Reauthorization to Support the Continued Existence of Section 5 s Preclearance Requirement and Coverage Formula Conclusion Certificate of Service ii

8 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 8 of 58 Cases TABLE OF AUTHORITIES Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) Alabama NAACP State Conference of Branches v. Wallace, 269 F.Supp. 346 (M.D. Ala. 1967) Arizona v. United States, 703 F. Supp. 2d 980, 986 (D. Ariz. 2010) Athanson v. Grasso, 411 F.Supp (D. Conn.1976) Baksalary v. Smith, 579 F.Supp. 218 (E.D. Penn. 1984) Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)... 19, 24 City of Boerne v. Flores, 521 U.S. 507 (1997)... passim City of Mobile v. Bolden, 446 U.S. 55 (1980)... 2, 7, 8, 41 City of Rome v. United States, 446 U.S. 156 (1980)... 23, 24 Coleman v. Court of Appeals of Maryland, 132 S. Ct (2012) Comm rs Ct. of Medina Cnty. v. United States, 683 F.2d 435 (D.C. Cir. 1982) Cooper v. Aaron, 358 U.S. 1 (1958) Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) iii

9 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 9 of 58 Ex Parte Young, 209 U.S. 123 (1904) FCC v. Fox Television Stations, Inc., 132 S. Ct (2012) Fed. Maritime Comm n v. S.C. State Ports Auth., 535 U.S. 743 (2002)... 6 Finch v. Mississippi State Medical Ass'n., Inc., 585 F.2d 765 (5th Cir. 1978) Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999)... 9 Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985) Georgia v. Ashcroft, 539 U.S. 461 (2003)... 4, 25 Guinn v. United States, 238 U.S. 347 (1915)... 8 Hopson v. Schilling, 418 F.Supp (N.D. Ind. 1976) Jehovah's Witnesses in Washington v. King County Hosp., 278 F.Supp. 488 (W.D. Wash. 1967) Johnson v. California, 543 U.S. 499 (2005)... 4, 25 Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000)... 10, 12, 18, 24 Knox v. Serv. Employees Int l Union, Local 1000, 132 S. Ct (2012) LaRoque v. Holder, 650 F.3d 777, 783 (D.C. Cir. 2011) Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959) iv

10 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 10 of 58 Lewis v. Rockefeller, 431 F.2d 368 (2d Cir. 1970) Martin v. Wilks, 490 U.S. 755 (1989) Miller v. Johnson, 515 U.S. 900 (1995) Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct (2012)... 11, 21 Nev. Dep t of Human Res. v. Hibbs, 538 U.S. 721 (2003)... 12, 18 New York v. United States, 505 U.S. 144 (1992)... 6, 35 Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009)... passim Oregon v. Mitchell, 400 U.S. 112 (1970)... passim Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007)... 4, 25 Parker v. Ohio, 263 F. Supp. 2d 1100 (S.D. Ohio 2003) Plessy v. Ferguson, 163 U.S. 537 (1896)... 4, 25 Russell v. Hathaway, 423 F.Supp. 833 (N.D. Tex. 1976) Shelby Cnty. v. Holder, 679 F.3d 848 (D.C. Cir. 2012)... passim Smith v. Allwright, 321 U.S. 649 (1944)... 8 South Carolina v. Katzenbach, 383 U.S. 301 (1966)... 8, 11, 12, 13, 23 v

11 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 11 of 58 Steffel v. Thompson, 415 U.S. 452 (1974) Texas v. Holder, No. 12-cv-128, 2012 WL (D.D.C. Aug. 30, 2012)... 1 Texas v. United States, No. 11-cv-1303, 2012 WL , (D.D.C. Aug. 28, 2012) Texas v. United States, 831 F. Supp. 2d 244, 272 (D.D.C. 2011) U.S. v. Ramsey, 353 F.2d 650 (5th Cir. 1965) United States v. Lopez, 514 U.S. 549 (1995)... 11, 21 United States v. McElveen, 177 F. Supp. 355 (E.D. La. 1959)... 3 United States v. Morrison, 529 U.S. 598 (2000) Van Straaten v. Shell Oil Products Co. LLC, 678 F.3d 486 (7th Cir. 2012) Washington v. Davis, 426 U.S. 229 (1976)... 8 Statutes 28 U.S.C U.S.C U.S.C U.S. CONST. amend. XIV, U.S. CONST. amend. XV... 2, 7, 10 vi

12 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 12 of 58 U.S. CONST. art. IV, Other Authorities 17A CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 4235 (3d ed.) Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999) David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988) Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg (Feb. 9, 2011) H.R. REP. NO (2006) Jonathan L. Entin, Judicial Selection and Political Culture, 30 CAP. U. L. REV. 523 (2002) Letter from Thomas Perez to Keith Ingram (March 12, 2012)... 5 Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, (1897) Richard H. Thaler & Cass R. Sunstein, Libertarian Paternalism Is Not An Oxymoron, 70 U. CHI. L. REV (2003) Richard L. Hasen, Congressional Power to Renew the Preclearance Provisions of the Voting Rights Act After Tennessee v. Lane, 66 OHIO ST. L. J. 177 (2005) vii

13 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 13 of 58 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF S MOTION FOR SUMMARY JUDGMENT On August 30, 2012, this Court issued an order declining to preclear Senate Bill 14 (SB 14), a law requiring Texans to present photo identification when appearing to vote at the polls. See Texas v. Holder, No. 12-cv-128, 2012 WL (D.D.C. Aug. 30, 2012) ( Opinion ). The Court did not find that SB 14 violated the Fifteenth Amendment; rather, this Court denied preclearance because the State had failed to prove to the Court s satisfaction that the statute w[ould] not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Opinion at 1 (citation and internal quotation marks omitted). According to this Court, retrogression occurs when a voting qualification imposes disproportionate burdens on persons living in poverty, in any State in which racial or ethnic minorities are disproportionately likely to be poor. See Opinion at Section 5, both on its face and as interpreted by this Court, exceeds Congress s power to enforce the Fifteenth Amendment. 1 The Fifteenth Amendment prohibits only purposeful racial discrimination, and there is no prophylactic justification for requiring a covered jurisdiction to prove nonretrogression when section 5 already requires the State to prove that its laws comply with the Fifteenth Amendment before those laws can take effect. The nonretrogression requirement also violates the Equal Protection Clause by forcing covered jurisdictions to engage in race-conscious decisionmaking. And the nonretrogression standard is so indeterminate that it gives the Department of Justice and the federal courts 1 Our discussion will respect this Court s opinion of August 30, 2012, as the authoritative construction of section 5 as we must under the law-of-the-case doctrine. 1

14 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 14 of 58 limitless discretion to withhold preclearance from voter-identification laws either by saddling a State with an impossible burden of proof or by choosing a theory of nonretrogression that will ensure a denial of preclearance. Finally, section 5 is unconstitutional on its face because there is insufficient evidence in the legislative record to support the 2006 reauthorization of section 5 s preclearance requirement and coverage formula. For these and other reasons, this Court should declare that section 5 of the Voting Rights Act exceeds Congress s power to enforce the Fifteenth Amendment. The Fifteenth Amendment provides: SUMMARY OF ARGUMENT Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation. U.S. CONST. amend. XV (emphasis added). Section 1 of the Fifteenth Amendment prohibits only laws or practices that are motivated by a racially discriminatory purpose; that s what on account of race or color means. See City of Mobile v. Bolden, 446 U.S. 55 (1980). Voting restrictions that merely impact different types of voters in different ways do not violate the Fifteenth Amendment, because they do not deny or abridge the right to vote on account of race or color. Id. This remains true even if these laws affect the right to vote on account of a criterion that happens to be correlated with race. Section 2 of the Fifteenth Amendment empowers Congress to enforce section 1 of the Fifteenth Amendment by appropriate legislation. This means that section 5 of the Voting Rights Act must satisfy two independent constitutional requirements. First, section 5 2

15 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 15 of 58 must enforce the Fifteenth Amendment s prohibition on purposeful racial discrimination. In the words of Judge J. Skelly Wright: To be appropriate under the Fifteenth Amendment, legislation must be directed against persons acting under color of law, state or federal, and it must relate to the denial, by such persons, of citizens right to vote because of race. Any congressional action which does not contain these two elements cannot be supported by the Fifteenth Amendment. United States v. McElveen, 177 F. Supp. 355, 358 (E.D. La. 1959) (Wright, J.) (emphasis added). Second, section 5 must be appropriate legislation to enforce the Fifteenth Amendment s guarantee. Section 5 of the Voting Rights Act, as interpreted by this Court, exceeds Congress s power to enforce the Fifteenth Amendment. The nonretrogression doctrine that this court derives from the statute withholds preclearance from every voting-related law enacted in covered jurisdictions that results in a disparate impact on racial minorities or on any group that is disproportionately composed of racial minorities regardless of whether those laws violate the Fifteenth Amendment by denying or abridging the right to vote on account of race or color. This nonretrogression requirement cannot be justified as a prophylactic rule designed to prevent actual violations of the Fifteenth Amendment because section 5 already requires covered jurisdictions to prove that their new voting laws comply with the Fifteenth Amendment before they can take effect. 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 3

16 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 16 of 58 prophylactic requirements (such as proof of nonretrogression ) on States seeking preclearance. The nonretrogression doctrine is not a prophylactic rule that prevents constitutional violations, but an unconstitutional imposition of extra-constitutional substantive requirements on a handful of States. The nonretrogression gloss that has been grafted on to section 5 is also incompatible with the Supreme Court s Equal Protection jurisprudence. First, section 5 forces covered jurisdictions to engage in race-conscious decisionmaking; that is the only way for covered jurisdictions to ensure that a new voting law will not inadvertently retrogress the position of language and racial minorities with respect to their effective exercise of the electoral franchise. See Georgia v. Ashcroft, 539 U.S. 461, (2003) (Kennedy, J., concurring) ( [C]onsiderations of race that would doom a redistricting plan under the Fourteenth Amendment or 2 seem to be what save it under 5. ). Yet the lodestar of modern equal-protection doctrine is its promise of color-blind government; only in the most extraordinary situations may a State engage in conscious racial classifications. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, (2007); Johnson v. California, 543 U.S. 499, (2005); see also Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) ( Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. ). The nonretrogression doctrine also violates the Equal Protection Clause by establishing asymmetric protections for voters of different races. That is not permissible under the Supreme Court s Equal Protection doctrine, nor is it permissible under the Fifteenth Amendment, which protects the right of every citizen, regardless of race, to be free from laws 4

17 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 17 of 58 that deny or abridge the right to vote on account of race. As the text of the Fifteenth Amendment confers identical protections on all voters, legislation purporting to enforce the Fifteenth Amendment must likewise extend identical protections to voters of all races. The nonretrogression requirement violates the Constitution for yet another reason: It is intolerably vague and fails to give covered jurisdictions fair notice of what laws are permitted and what laws are prohibited. It empowers the Department of Justice and districtcourt panels to thwart a state s election-related laws by shifting the goalposts and invoking new theories of nonretrogression that could not have been anticipated by a state s legislators or even by its lawyers. This case provides an excellent example. During the administrative-preclearance process, DOJ told the State of Texas that its Voter-ID law failed the nonretrogression test because (according to DOJ) registered voters with Spanish surnames were less likely than registered voters without Spanish surnames to have a state driver s license or personal-identification card issued by the Texas Department of Public Safety. See Letter from Thomas Perez to Keith Ingram (March 12, 2012). DOJ s stance in the administrative-preclearance process indicated that Texas would satisfy section 5 s nonretrogression requirement if it could prove that minority registered voters possess driver s licenses or state-id cards in percentages that equal or exceed the percentages of Anglo registered voters who possess those forms of state-issued identification. But once the evidence at trial discredited DOJ s disparity in state-id possession theory, this Court proffered another theory of nonretrogression. Under the Court s theory of nonretrogression, Texas would be unable to implement its photo-id law even if it could prove perfectly symmetrical rates of photo-id possession across racial and ethnic groups. 5

18 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 18 of 58 According to the Court, SB 14 fails the nonretrogression test because some registered voters who lack photo identification might have to travel significant distances to obtain an election identification certificates, and some registered voters who lack photo identification might also lack a copy of their birth certificate and therefore might have to pay $22 to obtain one before they can acquire an election identification certificate from the State. Even though there is no way to know how many registered voters fall into either of these categories or the racial and ethnic breakdown of these groups, this Court asserted that SB 14 violates the nonretrogression requirement because the required steps to obtain a photo identification will be more onerous for poorer citizens who lack photo identification, and the poor are disproportionately racial minorities. See Opinion at 48. At this juncture, the State is not attempting to take sides among these different theories of nonretrogression. The point is that nonretrogression is not a concrete standard it can mean almost anything. Placing the burden of proof on the State to satisfy such a vague and ever-changing standard creates a regime in which the Department of Justice and the federal courts wield a discretionary veto power over election-related laws enacted in covered jurisdictions. That is not consistent with the republican form of government that the Constitution guarantees to the people of every State, nor is it consistent with the dignity that States enjoy as sovereign entities under the Constitution. See U.S. CONST. art. IV, 4; Fed. Maritime Comm n v. S.C. State Ports Auth., 535 U.S. 743, (2002); New York v. United States, 505 U.S. 144 (1992). There is little doubt that if Texas had been capable of acquiring data proving that white, black, and Hispanic registered voters possessed state-issued photo-identification in equal percentages, the Department of Justice 6

19 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 19 of 58 would have invoked some other theory of nonretrogression perhaps demanding that the State prove equal rates of ID possession among eligible rather than registered voters. Finally, even if section 5 were interpreted to withhold preclearance only from laws that actually contravene the Fifteenth Amendment, it is no longer appropriate for Congress to effectively place a sovereign state into federal receivership by automatically delaying the implementation of its duly enacted laws. This extraordinary preclearance requirement could be appropriate in a world in which aggrieved citizens are unable to use traditional litigation to obtain immediate, preliminary injunctive relief against a State s unconstitutional voting laws. Those conditions may have existed in 1965, but they exist no longer. And even if a preclearance requirement could somehow be justified as appropriate enforcement legislation under section 2 of the Fifteenth Amendment, section 5 would remain unconstitutional because its outdated coverage formula cannot be sustained as a congruent and proportional remedy under City of Boerne v. Flores, 521 U.S. 507, 520 (1997). I. SECTION 5, AS INTERPRETED BY THIS COURT, EXCEEDS CONGRESS S POWER TO ENFORCE THE FIFTEENTH AMENDMENT. The Fifteenth Amendment prohibits only laws or practices that involve purposeful racial discrimination. See U.S. CONST. amend. XV; City of Mobile, 446 U.S. at 62. It does not prohibit States from enacting and enforcing laws that merely result in a disparate impact on racial minorities. Id. This construction is compelled by the text of the Fifteenth Amendment, which extends only to laws or practices that deny or abridge the right to vote on account of race or color. And it is confirmed by the Supreme Court s ruling in City of Mobile. Nothing in this Court s opinion of August 30, 2012, takes issue with this proposition. 7

20 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 20 of 58 A State can violate the Fifteenth Amendment in one of three ways. First, a State will violate the Fifteenth Amendment if it enacts or enforces laws or policies that explicitly deny or abridge the right to vote on account of race or color. See Smith v. Allwright, 321 U.S. 649 (1944). Second, a facially neutral law will violate the Fifteenth Amendment if it was enacted with the purpose of disenfranchising voters because of their race or color. The Grandfather Clause is a paradigmatic example of this; the Supreme Court held that it violated the Fifteenth Amendment because it was not possible to discover any basis of reason for the standard thus fixed other than the purpose to circumvent the Fifteenth Amendment. Guinn v. United States, 238 U.S. 347, 365 (1915). Third, a state-law voting qualification that is facially neutral and enacted with benign purposes will violate the Fifteenth Amendment if it is administered by racially biased election officials who selectively enforce these laws to withhold the right to vote on account of race or color. In South Carolina v. Katzenbach, 383 U.S. 301 (1966), for example, the Supreme Court held that covered jurisdictions had clearly violated the Fifteenth Amendment by administering their literacy tests in a racially discriminatory fashion, allowing white illiterates to register while excluding even literate blacks from the polls. Id. at The corollary is that States do not violate the Fifteenth Amendment when they enact facially neutral laws that happen to disproportionately impact members of a particular race unless the State enacted the law with a racially discriminatory purpose or administers the law in a racially biased manner. See City of Mobile, 446 U.S. at 62; cf. Washington v. Davis, 426 U.S. 229 (1976) (Fourteenth Amendment). 8

21 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 21 of 58 Section 5 of the Voting Rights Act (as interpreted by this Court) sweeps far beyond the Fifteenth Amendment by prohibiting covered jurisdictions from enacting any votingrelated law that disproportionately impacts members of racial or language minorities even when the law has no a racially discriminatory purpose and even when it has not and will not be administered in a racially biased manner. This drastically overinclusive measure exceeds Congress s power to enforce the Fifteenth Amendment. And it cannot be sustained as a congruen[t] and proportional[] prophylactic rule under the standards of City of Boerne, 521 U.S. at 520. A. Section 5 s Nonretrogression Doctrine Must Satisfy the Congruence and Proportionality Test of City of Boerne v. Flores. When Congress enacts legislation to enforce the Fourteenth Amendment, it must be designed to prevent or remedy actual violations of the Fourteenth Amendment. See id. at 517. Congress may not use its enforcement power to impose extra-constitutional substantive obligations on the States. Id. at 519; id. at (rejecting the notion that Congress may enact[] legislation that expands the rights contained in 1 of the Fourteenth Amendment ). The only circumstance in which Congress may prohibit constitutional conduct pursuant to this enforcement power is when prophylactic legislation is needed to prevent or deter state officials from violating the Fourteenth Amendment. And any prophylactic measure of this sort must be congruen[t] and proportion[al] to the constitutional violations that Congress seeks to prevent. Id. at 520. The congruence prong requires Congress to demonstrate the need for its prophylactic measure by documenting a pattern of constitutional violations by the States in the legislative record. See id. at 530; see also Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, (1999). The 9

22 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 22 of 58 proportionality requirement prohibits Congress from enacting needlessly over-inclusive prophylactic measures. See City of Boerne, 521 U.S. at 532 (holding that preventative measures are permissible only when there is reason to believe that many of the laws affected by the congressional enactment have a significant likelihood of being unconstitutional. (emphases added)); see also Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 86 (2000) (holding that Congress lacked authority under section 5 of the Fourteenth Amendment to enact a nondiscrimination law that prohibits substantially more state employment decisions and practices than would likely be held unconstitutional (emphasis added)). The Supreme Court has not explicitly held that the congruence and proportionality test governs Congress s power to enforce the Fifteenth Amendment, and the Supreme Court did not resolve this issue in Northwest Austin Municipal Utility District No. One v. Holder, 557 U.S. 193 (2009). But there can be no justification for applying a different standard of review when Congress legislates pursuant to its Fifteenth Amendment powers. Section 2 of the Fifteenth Amendment and section 5 of the Fourteenth Amendment are nearly identical in wording. Compare U.S. CONST. amend. XIV, 5 ( The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. ), with U.S. CONST. amend. XV, 2 ( The Congress shall have power to enforce this article by appropriate legislation. ). And they were ratified less than two years apart. There is no basis in constitutional text for defining enforce and appropriate legislation differently across these two constitutional provisions. See generally Akhil Reed Amar, Intratextualism, 112 HARV. L. REV. 747 (1999). And it is hard to imagine that the Supreme Court of the United States would adopt such an asymmetric regime in defining the scope of Congress s powers to enforce the 10

23 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 23 of 58 Reconstruction Amendments. See Shelby Cnty. v. Holder, 679 F.3d 848, 859 (D.C. Cir. 2012) ( We thus read Northwest Austin as sending a powerful signal that congruence and proportionality is the appropriate standard of review. ). We expect that the Attorney General will invoke Katzenbach and argue that Congress should be allowed to use any rational means to effectuate the constitutional prohibition of racial discrimination in voting. Id. at 324. But mere rationality review would allow Congress to impose all manner of substantive restrictions that are not required by the Fifteenth Amendment, and would mark the end of reserved State powers in matters concerning voting. There was a time when this overly deferential attitude toward Congress characterized the Supreme Court s federalism jurisprudence. See, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (1985). But over the last seventeen years the Supreme Court has taken a very different approach, as the Justices have repeatedly and emphatically asserted a robust role for the federal judiciary in enforcing the constitutional limits on Congress s enumerated powers. See, e.g., Nat l Fed n of Indep. Bus. v. Sebelius, 132 S. Ct (2012); United States v. Morrison, 529 U.S. 598, (2000); United States v. Lopez, 514 U.S. 549, (1995). A federal district court that uses the any rational means test to define the scope of Congress s Fifteenth Amendment powers will be running contrary to the tenor of every enumerated-powers ruling that the Supreme Court has issued since And the Attorney General cannot plausibly claim that Katzenbach imposes a binding obligation on this court to apply the any rational means test, because Northwest Austin expressly declined to endorse this language from Katzenbach when considering the standard for measuring the scope of Congress s enforcement power. See Northwest Austin, 557 U.S. at

24 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 24 of 58 B. Section 5, As Interpreted by This Court, Fails the Congruence and Proportionality Test Because It Prohibits Far More Constitutional Conduct Than Is Necessary to Effectively Enforce the Fifteenth Amendment. There are rare situations in which Congress may enforce the Fourteenth or Fifteenth Amendments by prohibiting conduct that does not actually violate those constitutional provisions. See City of Boerne, 521 U.S. at 518. The effective enforcement of a constitutional command will at times require prophylactic legislation to ensure that the net is cast sufficiently wide to catch all constitutional violations, especially when confronting a history of repeated and longstanding constitutional violations by state officials. Difficulties of proof or ease of administration will sometimes justify a rule that may be slightly overinclusive but that nevertheless ensures full compliance with the constitutional command. See, e.g., id.; South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966); see generally David A. Strauss, The Ubiquity of Prophylactic Rules, 55 U. CHI. L. REV. 190 (1988). For these reasons, the Supreme Court has emphasized that [l]egislation 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. City of Boerne, 521 U.S. at 518. But even when prophylactic legislation is authorized, it must be limited in scope. The Supreme Court has held that Congress may prohibit only a somewhat broader swath of conduct than that prohibited by the Fourteenth Amendment. See Kimel, 528 U.S. at 81, 86 (emphasis added). And prophylactic legislation must be narrowly targeted to prevent and deter a documented pattern of unconstitutional behavior. See Nev. Dep t of Human Res. v. Hibbs, 538 U.S. 721, 738 (2003). Congress could not, for example, enforce the Fifteenth Amendment by abolishing all voting qualifications in every State. Cf. Oregon v. Mitchell,

25 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 25 of 58 U.S. 112, (1970). Even though this type of law would prevent violations of the Fifteenth Amendment, it is too overinclusive to qualify as enforcement legislation. It would simply impose a new substantive legal obligation on the States that cannot be found in the Constitution. The congressional prohibitions on literacy tests provide an example of permissible prophylactic legislation under the Fifteenth Amendment. When Congress enacted the Voting Rights Act of 1965, the Supreme Court had previously held that literacy tests did not violate the Fifteenth Amendment. See Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45 (1959). But Congress chose to exercise its prophylactic power by suspending literacy tests for five years in the jurisdictions covered by section 5. This measure extended somewhat beyond the Fifteenth Amendment because it banned literacy tests in covered jurisdictions even if those tests were administered in a race-neutral fashion. See Lassiter, 360 U.S. at Nonetheless, the Court properly upheld this targeted prohibition on literacy tests because the congressional record demonstrated that in most of the States covered by the Act literacy tests were applied in a manner that violated the Fifteenth Amendment. Specifically, the Court found that literacy tests have been instituted with the purpose of disenfranchising [blacks], have been framed in such a way as to facilitate this aim, and have been administered in a discriminatory fashion for many years. Katzenbach, 383 U.S. at ; see also id. at 334 ( Under these circumstances, the Fifteenth Amendment has clearly been violated. ). And because litigation challenging literacy tests on a case-by-case basis had not proven effective at preventing these unconstitutional practices, Congress enacted a rule that prohibited some constitutional uses of literacy tests but had the virtue of ensuring that 13

26 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 26 of 58 violations of the Fifteenth Amendments would cease. In light of the numerous and persistent constitutional violations involving the use of literacy tests that appeared in the legislative record, Congress was justified in invoking its prophylactic enforcement powers, and the rule that it enacted was narrowly targeted to the tests and devices that had been enacted with racially discriminatory purposes or administered in a racially biased manner. Congress went a step further in 1970 when it imposed a nationwide prohibition on literacy tests in state and federal elections, which the Supreme Court upheld after concluding that the discriminatory use of literacy tests is not confined to the South. Mitchell, 400 U.S. at 134 (opinion of Black, J.). By contrast, section 5 (as interpreted by this Court) extends far beyond the prohibitions of the Fifteenth Amendment and violates any conceivable notion of proportion[al] prophylaxis. Before considering the Supreme Court s case law in this area, it is worth pausing to consider just how far this Court s theory of retrogression reaches beyond the Fifteenth Amendment. Under the Court s opinion in this case, Texas s Voter-ID law would violate section 5 even if the State had proven that the racial breakdown of registered voters without photo identification mirrored the racial makeup of the State s electorate. See Opinion at 45 ( [T]his case does not hinge merely on Texas s failure to prove a negative. ); id. at 46 (finding that at minimum, racial minorities are proportionately represented within the subgroup of registered voters who lack photo identification.). According to this Court, the State s Voter-ID would still violate section 5 because the process of obtaining a photo identification will purportedly weigh most heavily on the poor and racial minorities in Texas are disproportionately likely to live in poverty. Id. at 14

27 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 27 of This is at least two steps removed from the constitutional command of the Fifteenth Amendment. A constitutional provision that bans purposeful discrimination on account of race or color has been transformed into a prohibition on laws that impose a disparate impact based on poverty or any other factor that is correlated with racial-minority status. The Court s opinion also suggests that a law will violate section 5 if it causes any members of a racial or language minority who voted in a previous election to be unable to vote in the next election regardless of whether the law s overall impact imposes a disparate burden on minority groups. See id. at 49 ( Simply put, many Hispanics and African Americans who voted in the last election will, because of the burdens imposed by SB 14, likely be unable to vote in the next election. This is retrogression. ). We do not know whether the Court intended to establish this requirement in its opinion, but it will certainly be cited to support this proposition in future section 5 litigation. And these prohibitions apply even when a covered jurisdiction which bears the burden of proof proves in court that its law complies with the Fifteenth Amendment. This interpretation of section 5 cannot be sustained under the congruence and proportionality test or the numerous decisions limiting Congress s power to enforce the Reconstruction Amendments. Changing a constitutional prohibition on purposeful racial discrimination into a prohibition on laws that disproportionately affect economically disadvantaged voters is undeniably a substantive change in the governing law that Congress is powerless to impose through its enforcement powers. See City of Boerne, 521 U.S. at Likewise for legislation that converts a constitutional nondiscrimination rule into a provision that guarantees special legal protections to minority citizens and only to 15

28 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 28 of 58 minority citizens who have voted in previous elections. This construction of section 5 prohibits far more constitutionally permissible behavior than is necessary to ensure that the Fifteenth Amendment is obeyed, and there is no justification for these overinclusive prohibitions when section 5 already blocks every new voting law in covered jurisdictions from taking effect until the State proves in Court that its law comports with the Fifteenth Amendment. If Congress can impose these types of requirements on the States in the guise of enforcing the Fifteenth Amendment, then Congress will have unlimited powers to regulate voting in the States. 1. Section 5 s Preclearance Requirement, Which Prohibits New Voting Laws in Covered Jurisdictions From Taking Effect Until the State Proves That They Comply With the Fifteenth Amendment, Removes Any Possible Justification for the Prophylaxis of a Substantive Nonretrogression Requirement. This Court s interpretation of section 5 cannot be sustained as constitutionally valid prophylactic legislation for a simple reason: There is no possible justification for prophylaxis when section 5 already requires a State to prove that its new voting laws comport with the Fifteenth Amendment before they can take effect. This requirement not only ensures that new voting laws in covered jurisdictions will comply with the Fifteenth Amendment. It also removes any risk that an unconstitutional enactment will slip through the cracks on account of the difficulties involved in initiating litigation and proving racially discriminatory motivation. The extraordinary preclearance mechanism which blocks every new election-related law in covered jurisdictions from taking effect until they are proven to be constitutional establishes all the prophylaxis that could possibly be needed to ensure compliance with the Fifteenth Amendment. Requiring a covered jurisdiction to prove nonretrogression in addition to compliance with the Fifteenth Amendment cannot be 16

29 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 29 of 58 justified as a means of preventing violations of the Fifteenth Amendment, because there are no possible constitutional violations to prevent once a State has proven in preclearance proceedings that its law complies with the Fifteenth Amendment. The Court s nonretrogression doctrine can only be understood as a substantive change in the governing law that forces the States to comply with an extra-constitutional command. See id. at 519. For this reason, the evidence of past Fifteenth Amendment violations that Congress assembled when it re-authorized section 5 of the Voting Rights Act is beside the point. In Shelby County v. Holder, the D.C. Circuit concluded that this evidence supported Congress s decision to re-authorize section 5 s preclearance requirement for another 25 years. 679 F.3d at 856. But when considering the constitutionality of nonretrogression doctrine, the question is not whether any type of prophylactic legislation is justified, but whether the particular prophylactic measure of requiring a covered jurisdiction to prove nonretrogression after proving that its law comports the Fifteenth Amendment can be justified as a means of enforcing the Fifteenth Amendment. See Coleman v. Court of Appeals of Maryland, 132 S. Ct. 1327, 1338 (2012) (plurality opinion) (holding that valid enforcement legislation must identify a pattern of constitutional violations and tailor a remedy congruent and proportional to the documented violations. (emphasis added)). It is not enough for the legislative record merely to show that violations of the Fifteenth Amendment will occur without section 5. The legislative record must show that unconstitutional state laws will slip past the Attorney General or a three-judge panel absent a requirement that covered jurisdictions prove nonretrogression (in addition to proving constitutionality) in 17

30 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 30 of 58 preclearance proceedings. No evidence of this is mentioned in the Shelby County opinion, and we are not aware of any such evidence in the 2006 legislative record. Although Congess may enact so-called prophylactic legislation that proscribes facially constitutional conduct, it may do so only in order to prevent and deter unconstitutional conduct. Hibbs, 538 U.S. at Requiring a covered jurisdiction to prove nonretrogression in addition to proving compliance with the Fifteenth Amendment does nothing to prevent violations of the Fifteenth Amendment. It therefore exceeds Congress s enforcement power. The nonretrogression doctrine is not a means to prevent and deter actual constitutional violations, but an unconstitutional attempt to substantively redefine the States legal obligations. Kimel, 528 U.S. at Section 5, As Interpreted By This Court, Is Unconstitutional Under City of Boerne and Kimel v. Florida Board of Regents Because It Prohibits Substantially More Voting-Related Laws Than Would Be Held Unconstitutional under the Fifteenth Amendment. Even if it were possible to justify the presence of some prophylaxis in the substantive standards of section 5, the nonretrogression doctrine that this Court has read into section 5 would still violate the Constitution. The Supreme Court has made clear in its Fourteenth Amendment cases that prophylactic legislation may remedy and deter violations of constitutional rights by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text. Id. at 81 (emphasis added). But when prophylactic legislation prohibits substantially more state laws than those that would be deemed unconstitutional, it no longer qualifies as a proportion[al] enforcement measure. Id. at 86 (holding an anti-discrimination law unconstitutional under section 5 of the Fourteenth Amendment because it prohibits substantially more state employment 18

31 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 31 of 58 decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. ); see also Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 372 (2001) (disapproving prophylactic legislation that far exceeds what is constitutionally required. ). Congress may overshoot slightly, but it cannot impose a drastically overinclusive measure as a means of preventing constitutional violations. We do not think there will be any disagreement with the Department of Justice over this general principle. We expect that DOJ will concede, for example, that Congress cannot enforce the Fifteenth Amendment by eliminating all voter-eligibility rules in the States. Cf. Mitchell, 400 U.S. at (holding that Congress lacks authority to establish a voting age for state and local elections). The question then becomes whether the nonretrogression doctrine announced by this Court extends too far beyond the requirements of the Fifteenth Amendment to qualify as a proportion[al] enforcement mechanism. It cannot be denied that this Court s understanding of nonretrogression far exceeds the requirements of the Fifteenth Amendment. The Court s opinion holds that a votingrelated law cannot be precleared if it disproportionately burdens economically disadvantaged voters, whenever those persons are disproportionately likely to be racial or language minorities. See Opinion at 45 (holding that retrogression flows from three basic facts: (1) a substantial subgroup of Texas voters, many of whom are African American or Hispanic, lack photo ID; (2) the burdens associated with obtaining ID will weigh most heavily on the poor; and (3) racial minorities in Texas are disproportionately likely to live in poverty. ); id. at 48 ( To be sure, a section 5 case cannot turn on wealth alone. In Texas, however, the poor are disproportionately racial minorities. ). This reasoning would logically extend to any group 19

32 Case 1:12-cv RMC-DST-RLW Document 347 Filed 10/01/12 Page 32 of 58 that is disproportionately composed of racial or language minorities not only people living in poverty but also members of certain political parties, younger voters, and urban residents. If the nonretrogression doctrine blocks covered jurisdictions from enforcing a new redistricting plan or election-related law solely because it benefits one political party over another, or because it benefits rural or suburban voters at the expense of city-dwellers, then section 5 has blown past any conceivable notion of congruence and proportionality. And if it is acceptable for covered jurisdictions to enact redistricting plans and other electionrelated measures that have the effect of diminishing a particular political party s electoral prospects, then it is not apparent why the mere fact that a law that disproportionately burdens the poor should trigger a finding of retrogression. The Court s opinion goes on to suggest that covered jurisdictions cannot enact laws that will cause any member of a racial or language minority to become unable to vote after voting in a past election in that State. See id. at 49. This Court s understanding of nonretrogression has read on account of race and color completely out of the Fifteenth Amendment. The nonretrogression doctrine that this Court has read into section 5 is precisely what the Supreme Court rejected in City of Boerne: a decision to dispense with proof of deliberate or overt discrimination and instead concentrate on a law s effects. 521 U.S. at 517. If the Department of Justice argues that this nonretrogression doctrine satisfies the proportionality requirement of City of Boerne, or that it satisfies Kimel by extending only somewhat beyond the requirements of the Fifteenth Amendment, then it becomes appropriate to ask: What exactly is outer boundary of Congress s power to enforce the 20