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Brief of National Latino Organizations As Amici Curiae in Support of Respondents ______ No. 12-96 IN THE Supreme Court of the United States ___________ SHELBY COUNTY, ALABAMA, Petitioner, v. ERIC H. HOLDER, JR. ATTORNEY GENERAL, et al., Respondents. ___________ On Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit ___________ BRIEF OF NATIONAL LATINO ORGANIZATIONS AS AMICI CURIAE IN SUPPORT OF RESPONDENTS ___________ CARTER G. PHILLIPS MARK E. HADDAD* SIDLEY AUSTIN LLP JOSE F. SANCHEZ 1501 K Street, N.W. BRENT W. WILNER Washington, D.C. 20005 ALEXANDER J. DOHERTY (202) 736-8000 AMANDA V. LOPEZ LILLIAN H. PARK WILLIAM M. ROSENTHAL SIDLEY AUSTIN LLP 555 W. Fifth Street 40th Floor Los Angeles, CA 90013 (213) 896-6000 [email protected] Counsel for Amici Curiae February 1, 2013 * Counsel of Record (Additional Counsel Listed on Inside Cover) THOMAS A. SAENZ JUAN CARTAGENA NINA PERALES JOSE L. PEREZ KAROLINA J. LYZNIK LATINOJUSTICE PRLDEF MEXICAN AMERICAN 99 Hudson Street LEGAL DEFENSE & 14th Floor EDUCATION FUND, INC. New York, NY 10013 110 Broadway, Suite 300 (212) 219-3360 San Antonio, TX 78205 (210) 224-5476 TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................. iii INTEREST OF THE AMICI CURIAE ................. 1 INTRODUCTION AND SUMMARY OF ARGU- MENT ................................................................. 1 ARGUMENT ......................................................... 5 I. THE VRA HAS EVOLVED AND BEEN EXTENDED BY CONGRESS TO PRO- TECT LATINO VOTERS .............................. A. Limited Protection For Latinos In The Original VRA ............................................. 5 B. Expansion Of Section 5 To Protect Latinos in the Southwest .......................... 10 II. THE 2006 REAUTHORIZATION WAS A LEGITIMATE RESPONSE TO CONTIN- UED INTENTIONAL DISCRIMINATION AGAINST LATINO VOTERS IN THE COVERED JURISDICTIONS ...................... 16 A. Disparities In Voting And Elected Officials ..................................................... 16 B. Intentional Efforts To Exclude Latinos From Voting .............................................. 18 C. Intentional Efforts To Dilute Latino Vot- ing Strength .............................................. 21 D. Racially Polarized Voting By Non- Latinos ....................................................... 24 (i) ii TABLE OF CONTENTS—continued Page III. THE COVERAGE FORMULA RATION- ALLY AND FLEXIBLY IDENTIFIES JURISDICTIONS WITH THE WORST RECORDS OF DISCRIMINATION AGAINST LATINO VOTERS ....................... 25 IV. A CASE STUDY IN THE CONTINUED NEED FOR SECTION 5’s PROTECTIONS: THE 2011 TEXAS REDISTRICTING .......... 32 CONCLUSION ..................................................... 37 ADDENDUM: Charts APPENDIX: List of Amici Curiae EXHIBIT ONE: Expert Report of Dr. Andres Tijerina EXHIBIT TWO: Expert Report of Dr. F. Arturo Rosales iii TABLE OF AUTHORITIES CASES Page Alta Irrigation Dist. v. Holder, No. 1:11- CV-758-RJL-DAG-PLF (D.D.C. July 15, 2011) ........................................................... 31 City of Boerne v. Flores, 521 U.S. 507 (1997) ......................................................... 16, 35 City of Rome v. United States, 446 U.S. 156 (1980), superceded on other grounds, Voting Rights Amendments of 1982, Pub. L. No. 97-205, 96 Stat. 131, as recognized in Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ....................... 15 Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) ........................................... 20 Garza v. Smith, 320 F. Supp. 131 (W.D. Tex. 1970), vacated on other grounds, 401 U.S. 1006 (1971) (mem.) ............................ 10 Gonzales v. Sheely, 96 F. Supp. 1004 (D. Ariz. 1951) .................................................. 7 Hernandez v. Texas, 347 U.S. 475 (1954) ..... 6 Katzenbach v. Morgan, 384 U.S. 641 (1966) .......................................................... 2, 10 Klahr v. Goddard, 250 F. Supp. 537 (D. Ariz. 1966) .................................................. 9 League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ..................... passim Lopez v. Monterey Cnty., 525 U.S. 266 (1999) .......................................................... 15 Mi Familia Vota Educ. Fund v. Detzner, No. 8:12-CV-1294-T-27MAP, 2012 WL 4086509 (M.D. Fla. Sep. 18, 2012) ............ 21 Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009) ...................... 26, 31 iv TABLE OF AUTHORITIES—continued Page Perez v. Perry, No. SA-11-CV-360, 2012 U.S. Dist. LEXIS 92479 (W.D. Tex. Mar. 19, 2012) .................................................... 32, 34 Perry v. Perez, 132 S. Ct. 934 (2012) ............. 32 Perez v. Texas, No. 11-CV-360 (W.D. Tex. filed May 9, 2011) ....................................... 35 Perez v. Texas, No. 11-CV-360 (W.D. Tex. Mar. 19, 2012) ............................................ 34 South Carolina v. Katzenbach, 383 U.S. 301 (1966) ....................................... 1, 16, 29, 36 Texas v. Holder, No. 12-CV-128, 2012 WL 3743676 (D.D.C. Aug. 30, 2012) ................ 20 Texas v. United States, No. 11-CV-1303 (D.D.C. filed July 19, 2011) ....................... 32 Texas v. United States, No. 11-CV-1303, 2012 WL 3671924 (D.D.C. Aug. 28, 2012) ....................................................... passim Torres v. Sachs, 381 F. Supp. 309 (S.D.N.Y. 1974) ........................................................... 10 United States v. Vill. of Port Chester, No. 1:06-CV-15173 (SCR) (S.D.N.Y. Dec. 22, 2009) ........................................................... 30 White v. Regester, 412 U.S. 755 (1973) .... 2, 13, 22 STATUTES Voting Rights Act of 1965, Pub. Law No. 89-110, 79 Stat. 437 ................................... 9 42 U.S.C. § 1973a(c) ...................................... 4, 29 § 1973b ................................. 2, 4, 15, 30 § 1973c .......................................... 1 v TABLE OF AUTHORITIES—continued LEGISLATIVE HISTORY Page The Continuing Need for Section 5 Pre- Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) ........ 23 Extension of the Voting Rights Act of 1965: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 94th Cong. (1975) ....... 12, 13, 14 Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. (2006) ................... 21 Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspec- tives and Views from the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. (2006) ......................................................... 28, 31 Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options After LULAC v. Perry: Hearing Before the Subcomm. on the Constitution, Civil Rights and Property Rights of the S. Comm. on the Judiciary, 109th Cong. (2006) ...................................................... passim The State of the Right to Vote After the 2012 Election: Hearing Before the S. Comm. on the Judiciary, 112th Cong. (2012), http://www.judiciary.senate.gov/ pdf/12-12-19PeralesTestimony.pdf ............ 20 To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) ...................................................... passim vi TABLE OF AUTHORITIES—continued Page Voting Rights Act: An Examination of the Scope and Criteria for Coverage Under the Special Provisions of the Act: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005)........................................ 22, 25, 28 Voting Rights Act: Evidence of Continued Need, Volume I: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2006) ...................................................... passim Voting Rights Act: Evidence of Continued Need, Volume II: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2006) .................................................. 24, 25, 28 Voting Rights Act: Evidence of Continued Need, Volume III: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2006) .................................................. 18, 19, 30 Voting Rights Act: The Judicial Evolution of the Retrogression Standard: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005)................................................ 3 Voting Rights Act: Section 5 of the Act— History, Scope, and Purpose, Volume I: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) ........... 16, 24, 35 vii TABLE OF AUTHORITIES—continued Page Voting Rights Act: Section 5 of the Act— History, Scope, and Purpose, Volume II: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) ........... 17, 20, 23 Voting Rights Act: Section 5—Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) ............. 35 Voting Rights Act: Sections 6 and 8—The Federal Examiner and Observer Pro- gram: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005) ................... 19 Voting Rights Act: Section 203—Bilingual Election Requirements(Part II): Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. (2005)...............................................
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