The People’s Filibuster: Stephen Spaulding’s Midnight Reading

Stephen Spaulding of Common Cause reads at midnight, October 5, 2018, protesting the Senate's rush to judgment on SCOTUS nominee Brett Kavanaugh.

At midnight on October 5, 2018, Stephen Spaulding of Common Cause stepped up to the podium and began reading for an hour during the People’s Filibuster, a protest lifting up important words, speeches, literature that speaks to this moment as Senate has just one last vote tomorrow on the nomination of Brett Kavanaugh to a lifetime appointment to the Supreme Court. On this day, the American Bar Association moved away from its “well-qualified” rating for Kavanaugh after concerns about judicial temperament were raised after his rabid response to several Senators on the Judiciary Committee during the final hearing last week. With questions about the rush on the additional FBI inquiry motivated by the compelling testimony of Dr. Christine Blasey Ford and significant numbers of peers from both Georgetown Prep and Yale coming forward to publicly say they want to talk to the FBI but can’t get anyone to listen, or publishing their perspectives to try to influence the Senate — many who knew Kavanaugh are now urging a “no” vote. In addition, several former clerks and others who’d endorsed in very public letters have asked their names be withdrawn after Kavanaugh’s overt partisan attacks and lack of restraint displayed before the committee. Recognizing his own performance put concerns about his temperament and partisanship at the forefront of everyone’s mind, Kavanaugh broke yet another tradition in his campaign of entitlement to a seat on the Supreme Court, by writing an op-ed acknowledging he said things he shouldn’t have said in the hearing and playing up his record as an “independent and impartial judge” without commenting on the many people walking away from his nomination. And yet today, on the motion to end debate, 51-49, with Sen. Manchin (D-WV) and Sen. Murkowski (R-AK) each breaking from their party, it appears by sundown tomorrow the judge will become a justice and the Supreme Court will take another hit in the public’s perception as it becomes less about the rule of law and more about deepening the partisan split in the one part of our government that was never supposed to be overtly political . 

Stephen Spaulding, chief of strategy and external affairs  for Common Cause read the following speeches as part of the People’s Filibuster:

The White House

Office of the Press Secretary
For Immediate Release

Remarks by the President at the 50th Anniversary of the Selma to Montgomery Marches

Edmund Pettus Bridge

Selma, Alabama

2:17 P.M. CST

AUDIENCE MEMBER:  We love you, President Obama!

THE PRESIDENT:  Well, you know I love you back.  (Applause.)

It is a rare honor in this life to follow one of your heroes.  And John Lewis is one of my heroes.

Now, I have to imagine that when a younger John Lewis woke up that morning 50 years ago and made his way to Brown Chapel, heroics were not on his mind.  A day like this was not on his mind.  Young folks with bedrolls and backpacks were milling about.  Veterans of the movement trained newcomers in the tactics of non-violence; the right way to protect yourself when attacked.  A doctor described what tear gas does to the body, while marchers scribbled down instructions for contacting their loved ones.  The air was thick with doubt, anticipation and fear.  And they comforted themselves with the final verse of the final hymn they sung:

“No matter what may be the test, God will take care of you;
Lean, weary one, upon His breast, God will take care of you.”

And then, his knapsack stocked with an apple, a toothbrush, and a book on government — all you need for a night behind bars — John Lewis led them out of the church on a mission to change America.

President and Mrs. Bush, Governor Bentley, Mayor Evans, Sewell, Reverend Strong, members of Congress, elected officials, foot soldiers, friends, fellow Americans:

As John noted, there are places and moments in America where this nation’s destiny has been decided.  Many are sites of war — Concord and Lexington, Appomattox, Gettysburg.  Others are sites that symbolize the daring of America’s character — Independence Hall and Seneca Falls, Kitty Hawk and Cape Canaveral.

Selma is such a place.  In one afternoon 50 years ago, so much of our turbulent history — the stain of slavery and anguish of civil war; the yoke of segregation and tyranny of Jim Crow; the death of four little girls in Birmingham; and the dream of a Baptist preacher — all that history met on this bridge.

It was not a clash of armies, but a clash of wills; a contest to determine the true meaning of America.  And because of men and women like John Lewis, Joseph Lowery, Hosea Williams, Amelia Boynton, Diane Nash, Ralph Abernathy, C.T. Vivian, Andrew Young, Fred Shuttlesworth, Dr. Martin Luther King, Jr., and so many others, the idea of a just America and a fair America, an inclusive America, and a generous America — that idea ultimately triumphed.

As is true across the landscape of American history, we cannot examine this moment in isolation.  The march on Selma was part of a broader campaign that spanned generations; the leaders that day part of a long line of heroes.

We gather here to celebrate them.  We gather here to honor the courage of ordinary Americans willing to endure billy clubs and the chastening rod; tear gas and the trampling hoof; men and women who despite the gush of blood and splintered bone would stay true to their North Star and keep marching towards justice.

They did as Scripture instructed:  “Rejoice in hope, be patient in tribulation, be constant in prayer.”  And in the days to come, they went back again and again.  When the trumpet call sounded for more to join, the people came –- black and white, young and old, Christian and Jew, waving the American flag and singing the same anthems full of faith and hope.  A white newsman, Bill Plante, who covered the marches then and who is with us here today, quipped that the growing number of white people lowered the quality of the singing.  (Laughter.)  To those who marched, though, those old gospel songs must have never sounded so sweet.

In time, their chorus would well up and reach President Johnson.  And he would send them protection, and speak to the nation, echoing their call for America and the world to hear:  “We shall overcome.”  (Applause.)  What enormous faith these men and women had.  Faith in God, but also faith in America.

The Americans who crossed this bridge, they were not physically imposing.  But they gave courage to millions.  They held no elected office.  But they led a nation.  They marched as Americans who had endured hundreds of years of brutal violence, countless daily indignities –- but they didn’t seek special treatment, just the equal treatment promised to them almost a century before.  (Applause.)

What they did here will reverberate through the ages.  Not because the change they won was preordained; not because their victory was complete; but because they proved that nonviolent change is possible, that love and hope can conquer hate.

As we commemorate their achievement, we are well-served to remember that at the time of the marches, many in power condemned rather than praised them.  Back then, they were called Communists, or half-breeds, or outside agitators, sexual and moral degenerates, and worse –- they were called everything but the name their parents gave them.  Their faith was questioned.  Their lives were threatened.  Their patriotism challenged.

And yet, what could be more American than what happened in this place?  (Applause.)  What could more profoundly vindicate the idea of America than plain and humble people –- unsung, the downtrodden, the dreamers not of high station, not born to wealth or privilege, not of one religious tradition but many, coming together to shape their country’s course?

What greater expression of faith in the American experiment than this, what greater form of patriotism is there than the belief that America is not yet finished, that we are strong enough to be self-critical, that each successive generation can look upon our imperfections and decide that it is in our power to remake this nation to more closely align with our highest ideals?  (Applause.)

That’s why Selma is not some outlier in the American experience.  That’s why it’s not a museum or a static monument to behold from a distance.  It is instead the manifestation of a creed written into our founding documents:  “We the People…in order to form a more perfect union.”  “We hold these truths to be self-evident, that all men are created equal.”  (Applause.)

These are not just words.  They’re a living thing, a call to action, a roadmap for citizenship and an insistence in the capacity of free men and women to shape our own destiny.  For founders like Franklin and Jefferson, for leaders like Lincoln and FDR, the success of our experiment in self-government rested on engaging all of our citizens in this work.  And that’s what we celebrate here in Selma.  That’s what this movement was all about, one leg in our long journey toward freedom.  (Applause.)

The American instinct that led these young men and women to pick up the torch and cross this bridge, that’s the same instinct that moved patriots to choose revolution over tyranny.  It’s the same instinct that drew immigrants from across oceans and the Rio Grande; the same instinct that led women to reach for the ballot, workers to organize against an unjust status quo; the same instinct that led us to plant a flag at Iwo Jima and on the surface of the Moon.  (Applause.)

It’s the idea held by generations of citizens who believed that America is a constant work in progress; who believed that loving this country requires more than singing its praises or avoiding uncomfortable truths.  It requires the occasional disruption, the willingness to speak out for what is right, to shake up the status quo.  That’s America.  (Applause.)

That’s what makes us unique.  That’s what cements our reputation as a beacon of opportunity.  Young people behind the Iron Curtain would see Selma and eventually tear down that wall.  Young people in Soweto would hear Bobby Kennedy talk about ripples of hope and eventually banish the scourge of apartheid.  Young people in Burma went to prison rather than submit to military rule.  They saw what John Lewis had done.  From the streets of Tunis to the Maidan in Ukraine, this generation of young people can draw strength from this place, where the powerless could change the world’s greatest power and push their leaders to expand the boundaries of freedom.

They saw that idea made real right here in Selma, Alabama.  They saw that idea manifest itself here in America.

Because of campaigns like this, a Voting Rights Act was passed.  Political and economic and social barriers came down.  And the change these men and women wrought is visible here today in the presence of African Americans who run boardrooms, who sit on the bench, who serve in elected office from small towns to big cities; from the Congressional Black Caucus all the way to the Oval Office.  (Applause.)

Because of what they did, the doors of opportunity swung open not just for black folks, but for every American.  Women marched through those doors.  Latinos marched through those doors.  Asian Americans, gay Americans, Americans with disabilities — they all came through those doors.  (Applause.)  Their endeavors gave the entire South the chance to rise again, not by reasserting the past, but by transcending the past.

What a glorious thing, Dr. King might say.  And what a solemn debt we owe.  Which leads us to ask, just how might we repay that debt?

First and foremost, we have to recognize that one day’s commemoration, no matter how special, is not enough.  If Selma taught us anything, it’s that our work is never done.  (Applause.)  The American experiment in self-government gives work and purpose to each generation.

Selma teaches us, as well, that action requires that we shed our cynicism.  For when it comes to the pursuit of justice, we can afford neither complacency nor despair.

Just this week, I was asked whether I thought the Department of Justice’s Ferguson report shows that, with respect to race, little has changed in this country.  And I understood the question; the report’s narrative was sadly familiar.  It evoked the kind of abuse and disregard for citizens that spawned the Civil Rights Movement.  But I rejected the notion that nothing’s changed.  What happened in Ferguson may not be unique, but it’s no longer endemic.  It’s no longer sanctioned by law or by custom.  And before the Civil Rights Movement, it most surely was.  (Applause.)

We do a disservice to the cause of justice by intimating that bias and discrimination are immutable, that racial division is inherent to America.  If you think nothing’s changed in the past 50 years, ask somebody who lived through the Selma or Chicago or Los Angeles of the 1950s.  Ask the female CEO who once might have been assigned to the secretarial pool if nothing’s changed.  Ask your gay friend if it’s easier to be out and proud in America now than it was thirty years ago.  To deny this progress, this hard-won progress -– our progress –- would be to rob us of our own agency, our own capacity, our responsibility to do what we can to make America better.

Of course, a more common mistake is to suggest that Ferguson is an isolated incident; that racism is banished; that the work that drew men and women to Selma is now complete, and that whatever racial tensions remain are a consequence of those seeking to play the “race card” for their own purposes.  We don’t need the Ferguson report to know that’s not true.  We just need to open our eyes, and our ears, and our hearts to know that this nation’s racial history still casts its long shadow upon us.

We know the march is not yet over.  We know the race is not yet won.  We know that reaching that blessed destination where we are judged, all of us, by the content of our character requires admitting as much, facing up to the truth.  “We are capable of bearing a great burden,” James Baldwin once wrote, “once we discover that the burden is reality and arrive where reality is.”

There’s nothing America can’t handle if we actually look squarely at the problem.  And this is work for all Americans, not just some.  Not just whites.  Not just blacks.  If we want to honor the courage of those who marched that day, then all of us are called to possess their moral imagination.  All of us will need to feel as they did the fierce urgency of now.  All of us need to recognize as they did that change depends on our actions, on our attitudes, the things we teach our children.  And if we make such an effort, no matter how hard it may sometimes seem, laws can be passed, and consciences can be stirred, and consensus can be built.  (Applause.)

With such an effort, we can make sure our criminal justice system serves all and not just some.  Together, we can raise the level of mutual trust that policing is built on –- the idea that police officers are members of the community they risk their lives to protect, and citizens in Ferguson and New York and Cleveland, they just want the same thing young people here marched for 50 years ago -– the protection of the law.  (Applause.)  Together, we can address unfair sentencing and overcrowded prisons, and the stunted circumstances that rob too many boys of the chance to become men, and rob the nation of too many men who could be good dads, and good workers, and good neighbors.  (Applause.)

With effort, we can roll back poverty and the roadblocks to opportunity.  Americans don’t accept a free ride for anybody, nor do we believe in equality of outcomes.  But we do expect equal opportunity.  And if we really mean it, if we’re not just giving lip service to it, but if we really mean it and are willing to sacrifice for it, then, yes, we can make sure every child gets an education suitable to this new century, one that expands imaginations and lifts sights and gives those children the skills they need.  We can make sure every person willing to work has the dignity of a job, and a fair wage, and a real voice, and sturdier rungs on that ladder into the middle class.

And with effort, we can protect the foundation stone of our democracy for which so many marched across this bridge –- and that is the right to vote.  (Applause.)  Right now, in 2015, 50 years after Selma, there are laws across this country designed to make it harder for people to vote.  As we speak, more of such laws are being proposed.  Meanwhile, the Voting Rights Act, the culmination of so much blood, so much sweat and tears, the product of so much sacrifice in the face of wanton violence, the Voting Rights Act stands weakened, its future subject to political rancor.

How can that be?  The Voting Rights Act was one of the crowning achievements of our democracy, the result of Republican and Democratic efforts.  (Applause.)  President Reagan signed its renewal when he was in office.  President George W. Bush signed its renewal when he was in office.  (Applause.)  One hundred members of Congress have come here today to honor people who were willing to die for the right to protect it.  If we want to honor this day, let that hundred go back to Washington and gather four hundred more, and together, pledge to make it their mission to restore that law this year.  That’s how we honor those on this bridge.  (Applause.)

Of course, our democracy is not the task of Congress alone, or the courts alone, or even the President alone.  If every new voter-suppression law was struck down today, we would still have, here in America, one of the lowest voting rates among free peoples.  Fifty years ago, registering to vote here in Selma and much of the South meant guessing the number of jellybeans in a jar, the number of bubbles on a bar of soap.  It meant risking your dignity, and sometimes, your life.

What’s our excuse today for not voting?  How do we so casually discard the right for which so many fought?  (Applause.)  How do we so fully give away our power, our voice, in shaping America’s future?  Why are we pointing to somebody else when we could take the time just to go to the polling places?  (Applause.)  We give away our power.

Fellow marchers, so much has changed in 50 years.  We have endured war and we’ve fashioned peace.  We’ve seen technological wonders that touch every aspect of our lives.  We take for granted conveniences that our parents could have scarcely imagined.  But what has not changed is the imperative of citizenship; that willingness of a 26-year-old deacon, or a Unitarian minister, or a young mother of five to decide they loved this country so much that they’d risk everything to realize its promise.

That’s what it means to love America.  That’s what it means to believe in America.  That’s what it means when we say America is exceptional.

For we were born of change.  We broke the old aristocracies, declaring ourselves entitled not by bloodline, but endowed by our Creator with certain inalienable rights.  We secure our rights and responsibilities through a system of self-government, of and by and for the people.  That’s why we argue and fight with so much passion and conviction — because we know our efforts matter.  We know America is what we make of it.

Look at our history.  We are Lewis and Clark and Sacajawea, pioneers who braved the unfamiliar, followed by a stampede of farmers and miners, and entrepreneurs and hucksters.  That’s our spirit.  That’s who we are.

We are Sojourner Truth and Fannie Lou Hamer, women who could do as much as any man and then some.  And we’re Susan B. Anthony, who shook the system until the law reflected that truth.  That is our character.

We’re the immigrants who stowed away on ships to reach these shores, the huddled masses yearning to breathe free –- Holocaust survivors, Soviet defectors, the Lost Boys of Sudan.  We’re the hopeful strivers who cross the Rio Grande because we want our kids to know a better life.  That’s how we came to be.  (Applause.)

We’re the slaves who built the White House and the economy of the South.  (Applause.)  We’re the ranch hands and cowboys who opened up the West, and countless laborers who laid rail, and raised skyscrapers, and organized for workers’ rights.

We’re the fresh-faced GIs who fought to liberate a continent.  And we’re the Tuskeegee Airmen, and the Navajo code-talkers, and the Japanese Americans who fought for this country even as their own liberty had been denied.

We’re the firefighters who rushed into those buildings on 9/11, the volunteers who signed up to fight in Afghanistan and Iraq.  We’re the gay Americans whose blood ran in the streets of San Francisco and New York, just as blood ran down this bridge. (Applause.)

We are storytellers, writers, poets, artists who abhor unfairness, and despise hypocrisy, and give voice to the voiceless, and tell truths that need to be told.

We’re the inventors of gospel and jazz and blues, bluegrass and country, and hip-hop and rock and roll, and our very own sound with all the sweet sorrow and reckless joy of freedom.

We are Jackie Robinson, enduring scorn and spiked cleats and pitches coming straight to his head, and stealing home in the World Series anyway.  (Applause.)

We are the people Langston Hughes wrote of who “build our temples for tomorrow, strong as we know how.”  We are the people Emerson wrote of, “who for truth and honor’s sake stand fast and suffer long;” who are “never tired, so long as we can see far enough.”

That’s what America is.  Not stock photos or airbrushed history, or feeble attempts to define some of us as more American than others.  (Applause.)  We respect the past, but we don’t pine for the past.  We don’t fear the future; we grab for it.  America is not some fragile thing.  We are large, in the words of Whitman, containing multitudes.  We are boisterous and diverse and full of energy, perpetually young in spirit.  That’s why someone like John Lewis at the ripe old age of 25 could lead a mighty march.

And that’s what the young people here today and listening all across the country must take away from this day.  You are America.  Unconstrained by habit and convention.  Unencumbered by what is, because you’re ready to seize what ought to be.

For everywhere in this country, there are first steps to be taken, there’s new ground to cover, there are more bridges to be crossed.  And it is you, the young and fearless at heart, the most diverse and educated generation in our history, who the nation is waiting to follow.

Because Selma shows us that America is not the project of any one person.  Because the single-most powerful word in our democracy is the word “We.”  “We The People.”  “We Shall Overcome.”  “Yes We Can.”  (Applause.)  That word is owned by no one.  It belongs to everyone.  Oh, what a glorious task we are given, to continually try to improve this great nation of ours.

Fifty years from Bloody Sunday, our march is not yet finished, but we’re getting closer.  Two hundred and thirty-nine years after this nation’s founding our union is not yet perfect, but we are getting closer.  Our job’s easier because somebody already got us through that first mile.  Somebody already got us over that bridge.  When it feels the road is too hard, when the torch we’ve been passed feels too heavy, we will remember these early travelers, and draw strength from their example, and hold firmly the words of the prophet Isaiah:  “Those who hope in the Lord will renew their strength.  They will soar on [the] wings like eagles.  They will run and not grow weary.  They will walk and not be faint.”  (Applause.)

We honor those who walked so we could run.  We must run so our children soar.  And we will not grow weary.  For we believe in the power of an awesome God, and we believe in this country’s sacred promise.

May He bless those warriors of justice no longer with us, and bless the United States of America.  Thank you, everybody.  (Applause.)

Stephen Spaulding of Common Cause then read from Justice Ginsburg’s dissent in the Shelby County v Holder case. 




No. 12–96



on writ of certiorari to the united states court of appeals for the district of columbia circuit

[June 25, 2013]

Justice Ginsburg, with whom Justice BreyerJustice Sotomayor, and Justice Kagan join, dissenting.

In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was ofanother mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.


“[V]oting discrimination still exists; no one doubts that.” Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.

A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racialdiscrimination in voting” continued to “infec[t] theelectoral process in parts of our country.”South Carolina v. Katzenbach383 U. S. 301, 308 (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon273 U. S. 536, 541; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright321 U. S. 649, 658; and in 1953, the Court once again confronted an attempt by Texas to “circumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terryv. Adams345 U. S. 461, 469.

During this era, the Court recognized that discrimination against minority voters was a quintessentially political problem requiring a political solution. As Justice Holmes explained: If “the great mass of the white population intends to keep the blacks from voting,” “relief from [that] great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department ofthe government of the United States.” Giles v. Harris,189 U. S. 475, 488 (1903).

Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.”Katzenbach, 383 U. S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts:

“Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceed-ings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted).

Patently, a new approach was needed.

Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s his-tory. Requiring federal preclearance of changes in voting laws in the covered jurisdictions—those States and localities where opposition to the Constitution’s commands were most virulent—the VRA provided a fit solution for minority voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or procedures to the Department of Justice (DOJ), which has 60 days to respond to the changes. 79Stat. 439, codified at 42 U. S. C. §1973c(a). A change will be approved unless DOJ finds it has “the purpose [or] . . . the effect of denying or abridging the right to vote on account of race or color.” Ibid.In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia.

After a century’s failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, passage of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120Stat. 577. On that matter of cause and effects there can be no genuine doubt.

Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy elimi-nated. City of Rome v. United States446 U. S. 156, 181 (1980). Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.”Ibid. (quoting H. R. Rep. No. 94–196, p. 10 (1975)). See also Shaw v. Reno509 U. S. 630,640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the bal-lot, are aptly described as “second-generation barriers” to minority voting.

Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at-large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, inQuiet Revolution in the South 301, 319 (C. Davidson& B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engagedin discriminatory annexation by incorporating majority-white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U. S., at 640–641; Allen v. State Bd. of Elections393 U. S. 544, 569 (1969); Reynolds v. Sims377 U. S. 533, 555 (1964). See also H. R. Rep. No. 109–478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”).

In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. Ante, at 4–5. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. Ante, at 5. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclearance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions.

Congress did not take this task lightly. Quite the opposite. The 109th Congress that took responsibility for the renewal started early and conscientiously. In October 2005, the House began extensive hearings, which continued into November and resumed in March 2006. S. Rep. No. 109–295, p. 2 (2006). In April 2006, the Senate followed suit, with hearings of its own. Ibid. In May 2006, the bills that became the VRA’s reauthorization were introduced in both Houses. Ibid. The House held further hearings of considerable length, as did the Senate, which continued to hold hearings into June and July. H. R. Rep. 109–478, at 5; S. Rep. 109–295, at 3–4. In mid-July, the House considered and rejected four amendments, then passed the reauthorization by a vote of 390 yeas to 33 nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 182–183 (2007) (hereinafter Persily). The bill was read and debated in the Senate, where it passed by a vote of 98 to 0. 152 Cong. Rec. S8012 (July 20, 2006). President Bush signed it a week later, on July 27, 2006, recognizing the need for “further work . . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).

In the long course of the legislative process, Congress “amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder557 U. S. 193, 205 (2009). See also 679 F. 3d 848, 865–873 (CADC 2012) (describing the “extensive record” supporting Congress’ determina-tion that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimina-tion in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H. R. Rep. 109–478, at 5, 11–12; S. Rep. 109–295, at 2–4,15. The compilation presents countless “examples of fla-grant racial discrimination” since the last reauthoriza-tion; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F. 3d, at 866.

After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers constructed to prevent minority voters from fully participating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)–(3), 120Stat. 577. Extensive “[e]vidence of continued discrimination,” Congress concluded, “clearly show[ed] the continued need for Federal oversight” in covered jurisdictions. §§2(b)(4)–(5), id.,at 577–578. The overall record demonstrated to the federal lawmakers that, “without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578.

Based on these findings, Congress reauthorized preclearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. 42 U. S. C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question before the Court is whether Congress had the authority under the Constitution to act as it did.


In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins118 U. S. 356, 370 (1886). When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.

The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).

It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin,3 is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping enforcement powers . . . to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997)(quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendmentswas expressly not left to the courts. The remedy was legislative.”).

The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan384 U. S. 641, 653 (1966).

Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitu-tional prohibition of racial discrimination in voting.” 383 U. S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.”

For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is en-titled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statute’s constitutionality and Congress has adhered to the very model the Court has upheld. See id., at 174 (“The appellants are asking us to do nothing less than overrule our decision in South Carolina v. Katzenbach . . . , in which we upheld the constitutionality of the Act.”); Lopez v. Monterey County525 U. S. 266, 283 (1999) (similar).

Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger539 U. S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial preferences [in higher education] will no longer be necessary”).

Third, a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193–194.

This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia100 U. S. 339, 346 (1880). The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appropriate methods.” City of Rome, 446 U. S., at 176–177.

In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.


The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise.


I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discriminatory changes to voting laws. See City of Rome, 446 U. S., at 181 (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of Continued Need).

All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H. R. Rep. No. 109–478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F. 3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” H. R. Rep. 109–478, at 21. On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements. 1 Evidence of Continued Need 186, 250.

In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109–478, at 40–41.4 Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obligatio[n]” to protect minority voting rights. 2 Evidence of Continued Need 2555.

Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. 1 Evidence of Continued Need 97. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act—History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation places a heavy financial burden on minority voters. See id., at 84. Congress also received evidence that preclearance lessened the litigation burden on covered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing before the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120–121 (2006). See also Brief for States of New York, California, Mississippi, and North Carolina as Amici Curiae 8–9 (Section 5 “reduc[es] the likelihood that a jurisdiction will face costly and protracted Section 2 litigation”).

The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Sur-veying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:

In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H. R. Rep. No. 109–478, at 39.

Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength . . . in the city as a whole.” Id., at 37 (internal quotation marks omitted).

In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi,abruptly canceled the town’s election after “anunprecedented number” of African-American can-didates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36–37.

In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry548 U. S. 399, 440 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No.06–cv–1046 (WD Tex.), Doc. 8.

In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at-large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board,was found to be an “ ‘exact replica’ ” of an earliervoting scheme that, a federal court had determined, violated the VRA. 811 F. Supp. 2d 424, 483 (DDC 2011). See also S. Rep. No. 109–295, at 309. DOJ invoked §5 to block the proposal.

In 1993, the City of Millen, Georgia, proposed to delay the election in a majority-black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling placefrom a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.

In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F. 3d, at 865–866.

In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disquali-fied many citizens from voting “simply becausethey failed to pick up or return a voter updateform, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.

These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.” 679 F. 3d, at 865.5

Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights deprivations.” Persily 202 (footnote omitted). This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.

True, conditions in the South have impressively improved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1). But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U. S., at 180–182 (congressional reauthorization of the preclearance requirement was justified based on “the number and nature of objections interposed by the Attorney General” sincethe prior reauthorization; extension was “necessary to pre-serve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”) (internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials were the only metrics capable of justifying reauthorization of the VRA. Ibid.


I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions.

There is no question, moreover, that the covered jurisdictions have a unique history of problems with racial discrimination in voting. Ante, at 12–13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1 G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding. 2006 Reauthorization §2(b)(9).

Of particular importance, even after 40 years and thousands of discriminatory changes blocked by preclearance, conditions in the covered jurisdictions demonstrated that the formula was still justified by “current needs.” Northwest Austin, 557 U. S., at 203.

Congress learned of these conditions through a report, known as the Katz study, that looked at §2 suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., pp. 964–1124 (2005) (hereinafter Impact and Effectiveness). Because the private right of action authorized by §2 of the VRA applies nationwide, a comparison of §2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas.6 The study’s findings, however, indicated that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U. S., at 203.

Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study revealed that they accounted for 56 percent of successful§2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions. 679 F. 3d, at 874. The Katz study further found that §2 lawsuits are more likely to succeed when they are filed in covered jurisdictions than in noncovered jurisdictions. Impact and Effectiveness 974. From these findings—ignored by the Court—Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern.

The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country. H. R. Rep. No. 109–478, at 34–35. While racially polarized voting alone does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to dis-criminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific disadvantages.” Ansolabehere, Persily, & Stewart, Regional Differencesin Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013).

In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” Ibid. Just as buildings in California have a greater need to be earthquake-proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination. This point was understood by Congress and is well recognized in the academic literature. See 2006 Reauthorization §2(b)(3),120Stat. 577 (“The continued evidence of racially polarized voting in each of the jurisdictions covered by the [preclearance requirement] demonstrates that racial and language minorities remain politically vulnerable”); H. R. Rep. No. 109–478, at 35; Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution 21, 22.

The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court-ordered “bail ins.” See Northwest Austin, 557 U. S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of vot-ers. 42 U. S. C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth andFifteenth Amendments have occurred there. §1973a(c) (2006 ed.).

Congress was satisfied that the VRA’s bailout mechanism provided an effective means of adjusting the VRA’s coverage over time. H. R. Rep. No. 109–478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdictions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. App. to Brief for Federal Respondent 1a–3a.

This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions. True, many covered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdictions were rightfully subject to preclearance, and ought to remain under that regime.


Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18–19. Without evenidentifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20–21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.


Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization. “A facial challenge to a legislative Act,” the Court has other times said, “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno481 U. S. 739, 745 (1987).

“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma413 U. S. 601, 610–611 (1973). Instead, the “judicial Power” is limited to deciding particular “Cases” and “Controversies.” U. S. Const., Art. III, §2. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick, 413 U. S., at 610. Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit—Shelby County, Alabama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.

Alabama is home to Selma, site of the “Bloody Sunday” beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment. Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion. In King’s words, “the arc of the moral universe is long, but it bends toward justice.” G. May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy 144 (2013).

History has proved King right. Although circumstances in Alabama have changed, serious concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful §2 suits, second only to its VRA-covered neighbor Mississippi. 679 F. 3d, at 897 (Williams, J., dissenting). In other words, even while subject to the restraining effect of §5, Alabama was found to have “deni[ed] or abridge[d]” voting rights “on account of race or color” more frequently than nearly all other States in the Union. 42 U. S. C. §1973(a). This fact prompted the dissenting judge below to concede that “a more narrowly tailored coverage formula” capturing Alabama and a handful of other jurisdictions with an established track record of racial discrimination in voting “might be defensible.” 679 F. 3d, at 897 (opinion of Williams, J.). That is an understatement. Alabama’s sorry history of §2 violations alone provides sufficient justification for Congress’ determination in 2006 that the State should remain subject to §5’s preclearance requirement.7

A few examples suffice to demonstrate that, at least in Alabama, the “current burdens” imposed by §5’s preclearance requirement are “justified by current needs.” Northwest Austin, 557 U. S., at 203. In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama. In Pleasant Grove v. United States479 U. S. 462 (1987), the Court held that Pleasant Grove—a city in Jefferson County, Shelby County’s neighbor—engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood. The city had “shown unambiguous opposition to racial integration, both before and after the passage of the fed-eral civil rights laws,” and its strategic annexationsappeared to be an attempt “to provide for the growth ofa monolithic white voting block” for “the impermissible purpose of minimizing future black voting strength.” Id., at 465, 471–472.

Two years before Pleasant Grove, the Court in Hunter v. Underwood471 U. S. 222 (1985), struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpitude” from voting.Id., at 223 (internal quotation marks omitted). The provision violated the Fourteenth Amendment’s Equal Protection Clause, the Court unanimously concluded, because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” Id., at 233.

Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge concluded that the at-large election systems in several Alabama counties violated §2. Dillard v. Crenshaw Cty., 640 F. Supp. 1347, 1354–1363 (MD Ala. 1986). Summarizing its findings, the court stated that “[f ]rom the late 1800’s through the present, [Alabama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and political life of the state.”Id., at 1360.

The Dillard litigation ultimately expanded to include 183 cities, counties, and school boards employing discriminatory at-large election systems. Dillard v. Baldwin Cty. Bd. of Ed., 686 F. Supp. 1459, 1461 (MD Ala. 1988). One of those defendants was Shelby County, which eventually signed a consent decree to resolve the claims against it. See Dillard v. Crenshaw Cty., 748 F. Supp. 819 (MD Ala. 1990).

Although the Dillard litigation resulted in overhauls of numerous electoral systems tainted by racial discrimination, concerns about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that “would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in Dillard.” 811 F. Supp. 2d 424, 443 (DC 2011). Although DOJ objected to the plan, Calera forged ahead with elections based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American councilman who represented the former majority-black district. Ibid. The city’s defiance required DOJ to bring a §5 enforcement action that ultimately yielded appropriate redress, including restoration of the majority-black district. Ibid.; Brief for Respondent-Intervenors Earl Cunningham et al. 20.

A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F. Supp. 2d 1339, 1344–1348 (MD Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, “ ‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’ ”). These conversations oc-curred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344–1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid.

These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions.8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines362 U. S. 17, 24–25 (1960) (“[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.”). See also Nevada Dept. of Human Resources v. Hibbs538 U. S. 721, 743 (2003) (Scalia, J., dissenting) (where, as here, a state or local government raises a facial challenge to a federal statute on the ground that it exceeds Congress’ enforcement powers under the Civil War Amendments, the challenge fails if the opposing party is able to show that the statute “could constitutionally be applied to some jurisdictions”).

This Court has consistently rejected constitutional challenges to legislation enacted pursuant to Congress’ enforcement powers under the Civil War Amendments upon finding that the legislation was constitutional as applied to the particular set of circumstances before the Court. See United States v. Georgia546 U. S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action . . . for conduct that actually violates the Fourteenth Amendment”); Tennessee v. Lane541 U. S. 509, 530–534 (2004) (Title II of the ADA is constitutional “as it applies to the class of cases implicating the fundamental right of access to the courts”); Raines, 362 U. S., at 24–26 (federal statute proscribing deprivations of the right to vote based on race was constitutional as applied to the state officials before the Court, even if it could not constitutionally be applied to other parties). A similar approach is warranted here.9

The VRA’s exceptionally broad severability provision makes it particularly inappropriate for the Court to allow Shelby County to mount a facial challenge to §§4(b) and 5 of the VRA, even though application of those provisions to the county falls well within the bounds of Congress’ legislative authority. The severability provision states:

“If any provision of [this Act] or the applicationthereof to any person or circumstances is held invalid, the remainder of [the Act] and the application of the provision to other persons not similarly situated orto other circumstances shall not be affected thereby.” 42 U. S. C. §1973p.

In other words, even if the VRA could not constitutionally be applied to certain States—e.g., Arizona and Alaska, see ante, at 8—§1973p calls for those unconstitutional applications to be severed, leaving the Act in place for juris-dictions as to which its application does not transgress constitutional limits.

Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omitted); id., at __ (Ginsburg, J., concurring in part, concurring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis). See also Raines, 362 U. S., at 23 (a statute capable of some constitutional applications may nonetheless be susceptible to a facial challenge only in “that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application”). Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.


The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty.” Ante, at 10–11, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” 383 U. S., at 328–329 (emphasis added).

Katzenbach, the Court acknowledges, “rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States].” Ante, at 11 (citing 383 U. S., at 328–329) (emphasis omitted). But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.”Ante, at 11 (citing 557 U. S., at 203). See also ante, at 23 (relying on Northwest Austin’s “emphasis on [the] significance” of the equal-sovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limitation of the equal sovereignty doctrine to “the admission of new States,” the suggestion is untenable. Northwest Austincited Katzenbach’s holding in the course of declining to decide whether the VRA was constitutional or even what standard of review applied to the question. 557 U. S., at 203–204. In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach. The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless counsels adherence to Katzenbach’s ruling on the limited “significance” of the equal sovereignty principle.

Today’s unprecedented extension of the equal sover-eignty principle outside its proper domain—the admission of new States—is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See, e.g., 28 U. S. C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State conducted such a scheme “at any time during the period beginning January 1, 1976, and ending August 31, 1990”); 26 U. S. C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U. S. C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this subsection after December 22, 1987”). Do such provisions remain safe given the Court’s expansion of equal sovereignty’s sway?

Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geographical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morrison529 U. S. 598, 626–627 (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect. See Persily 195 (“[S]upporters of the Act sought to develop an evidentiary record for the principal purpose of explaining why the covered jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions but not others.”).

In the Court’s conception, it appears, defenders of the VRA could not prevail upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing the preclearance regime in covered States. In addition, the defenders would have to disprove the existence of a comparable need elsewhere. See Tr. of Oral Arg. 61–62 (suggesting that proof of egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no precedent for imposing such a double burden on defenders of legislation.


The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores521 U. S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.”Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ de-termination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Ante, at 18. Even if the legislative record shows, as engaging with it would reveal, that the formula accurately identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” Ante, at 23. I do not see why that should be so.

Congress’ chore was different in 1965 than it was in 2006. In 1965, there were a “small number of States . . . which in most instances were familiar to Congress by name,” on which Congress fixed its attention. Katzenbach, 383 U. S., at 328. In drafting the coverage formula, “Congress began work with reliable evidence of actual voting discrimination in a great majority of the States” it sought to target. Id., at 329. “The formula [Congress] eventually evolved to describe these areas” also captured a few States that had not been the subject of congressional factfinding. Ibid. Nevertheless, the Court upheld the formula in its entirety, finding it fair “to infer a significant danger of the evil” in all places the formula covered. Ibid.

The situation Congress faced in 2006, when it took up reauthorization of the coverage formula, was not the same. By then, the formula had been in effect for many years, and all of the jurisdictions covered by it were “familiar to Congress by name.”Id., at 328. The question before Congress: Was there still a sufficient basis to support continued application of the preclearance remedy in each of those already-identified places? There was at that point no chance that the formula might inadvertently sweep in new areas that were not the subject of congressional findings. And Congress could determine from the record whether the jurisdictions captured by the coverage for-mula still belonged under the preclearance regime. If they did, there was no need to alter the formula. That is why the Court, in addressing prior reauthorizations of the VRA, did not question the continuing “relevance” of the formula.

Consider once again the components of the record before Congress in 2006. The coverage provision identified a known list of places with an undisputed history of serious problems with racial discrimination in voting. Recent evidence relating to Alabama and its counties was there for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently in 1999. There was extensive evidence that, due to the preclearance mechanism, conditions in the covered jurisdictions had notably improved. And there was evidence that preclearance was still having a substantial real-world effect, having stopped hundreds of discriminatory voting changes in the covered jurisdictions since the last reauthorization. In addition, there was evidence that racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case studies documented continuing problems with voting dis-crimination in those jurisdictions. In light of this rec-ord, Congress had more than a reasonable basis toconclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas. And certainly Shelby County was no candidate for release through the mechanism Congress provided. See supra, at 22–23, 26–28.

The Court holds §4(b) invalid on the ground that it is “irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time.” Ante, at 23. But the Court disregards what Congress set about to do in enacting the VRA. That extraordinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal citizenship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first-generation barriers that originally triggered preclearance in those jurisdictions. See supra, at 5–6, 8, 15–17.

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. Ante, at 21–22, 23–24. With that belief, and the argument derived from it, history repeats itself. The same assumption—that the problem could be solved when particular methods of voting discrimination are identified and eliminated—was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U. S., at 311; supra, at 2. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made toend racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

The record supporting the 2006 reauthorization ofthe VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.

* * *

For the reasons stated, I would affirm the judgment of the Court of Appeals.


1 The Court purports to declare unconstitutional only the coverage formula set out in §4(b). See ante, at 24. But without that formula, §5 is immobilized.

2 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, andTwenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U. S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U. S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc.ante, at 5–6.

3 Acknowledging the existence of “serious constitutional questions,” see ante, at 22 (internal quotation marks omitted), does not suggest how those questions should be answered.

4 This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting a proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest. The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 53–54 (2006). All agree that an unsupported assertion about “deterrence” would not be sufficient to justify keeping a remedy in place in perpetuity. See ante, at 17. But it was certainly reasonable for Congress to consider the testimony of witnesses who had worked with officials in covered jurisdictions and observed a real-world deterrent effect.

5 For an illustration postdating the 2006 reauthorization, see South Carolina v. United States, 898 F. Supp. 2d 30 (DC 2012), which involved a South Carolina voter-identification law enacted in 2011. Concerned that the law would burden minority voters, DOJ brought a §5 enforcement action to block the law’s implementation. In the course of the litigation, South Carolina officials agreed to binding interpretations that made it “far easier than some might have expected or feared” for South Carolina citizens to vote. Id., at 37. A three-judge panel precleared the law after adopting both interpretations as an express “condition of preclearance.” Id., at 37–38. Two of the judges commented that the case demonstrated “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id., at 54 (opinion of Bates, J.).

6 Because preclearance occurs only in covered jurisdictions and can be expected to stop the most obviously objectionable measures, one would expect a lower rate of successful §2 lawsuits in those jurisdictions ifthe risk of voting discrimination there were the same as elsewhere in the country.

7 This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the State itself. Nevertheless, it is appropriate to judge Shelby County’s constitutional challenge in light of instances of discrimination statewide because Shelby County is subject to §5’s preclearance requirement by virtue of Alabama’s designation as a covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any event, Shelby County’s recent record of employing an at-large electoral system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the county to §5’s preclearance mandate. See infra, at 26.

8 Congress continued preclearance over Alabama, including Shelby County, after considering evidence of current barriers there to minority voting clout. Shelby County, thus, is no “redhead” caught up in an arbitrary scheme. See ante, at 22.

9 The Court does not contest that Alabama’s history of racial discrimination provides a sufficient basis for Congress to require Alabama and its political subdivisions to preclear electoral changes. Nevertheless, the Court asserts that Shelby County may prevail on its facial challenge to §4’s coverage formula because it is subject to §5’s preclearance requirement by virtue of that formula. See ante, at 22 (“The county was selected [for preclearance] based on th[e] [coverage] formula.”). This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State. See supra, at 28, n. 8.

Stephen Spaulding then read from Robert Kennedy’s speech on the duty of lawyers. That speech is available at this link and not reproducible here.