Consistent with this broad focus on “equality of opportunity,” Section 2 requires a “fact- intensive” inquiry into “the totality of the circumstances,” including the “tenuous[ness]” or strength of the “policy underlying the … contested practice.” Gingles, 478 U.S. at 45-46 (citing S. Rep. No. 97-417, at 29); see also 42 U.S.C. § 1973(b). And the Supreme Court has “structure[d] … the statute’s ‘totality of circumstances’ test,” De Grandy, 512 U.S. at 1010, in ways that help to avoid conferring electoral advantages on minorities and instead to target the test at facially neutral practices that subject minorities to disparate treatment and are likely to be intentionally discriminatory.

CONCLUSION The Board Members should be dismissed as Defendants as their inclusion as parties is redundant, unnecessary and unwarranted given the express language of § 2 which limits its reach to “any state or political subdivision.” 42 U.S.C. § 1973(a). Because the Board Members are not political subdivisions within the purview of § 2 of the VRA, the Amended Complaint against the Board Members must be dismissed.

Chapter 42, Chapter 20, Subchapter I-A “Enforcement of Voting Rights” contains that separability (severability) clause. The clause plainly indicates that if any part of the Act [42 U.S.C. §§ 1973 et. seq.] is found unconstitutional, the remainder of the Voting Rights Act of 1965 will not be affected by such determination.

But the 2006 Congress believed that both these decisions seriously “misconstrued [§ 1973c(a)’s] original intent” and “significantly weakened” the protections that Congress believed were actually and properly afforded under that provision. 42 U.S.C. § 1973 note, Findings (6). Yet the Government nonetheless argues that this Court should prospectively apply a severed § 1973c(a) to reach only “retrogressive purpose” and “totality” retrogressive effect, despite the fact that the 2006 Congress thought that to be a debilitating and erroneous emasculation of Section 5.

But the 2006 Congress believed that both these decisions seriously “misconstrued [§ 1973c(a)’s] original intent” and “significantly weakened” the protections that Congress believed were actually and properly afforded under that provision. 42 U.S.C. § 1973 note, Findings (6). Yet the Government nonetheless argues that this Court should prospectively apply a severed § 1973c(a) to reach only “retrogressive purpose” and “totality” retrogressive effect, despite the fact that the 2006 Congress thought that to be a debilitating and erroneous emasculation of Section 5.

3. Plaintiffs contend that the sole justification for the preclearance requirement in Section 5 is to prevent retrogressive voting changes that cannot be remedied through litigation under Section 2 of the VRA, 42 U.S.C. 1973. See Pl.

Case 2:16-cv-01065-DLR Document 73 Filed 06/10/16 Page 6 of 37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- subject to Section 5, DOJ regularly objected to proposed changes to elections practices or procedures in the State, because it determined they had the “purpose” or would have “the effect of denying or abridging the right to vote on account of race or color or [membership in a language minority group].” 42 U.S.C. § 1973(c). In the less than three years that have passed since Shelby County, minority voters have not fared well in Arizona.

The Voting Rights Act specifically prohibits discrimination against Latinos in voting. 42 U.S.C. § 1973 et seq. The Courts have recognized that redistricting plans can be drawn in such a fashion as to dilute the voting strength of Latino voters.

Even if the ballot language were confusing to voters with lower reading comprehension skills, it cannot violate the Voting Rights Act because it did not result in minorities “hav[ing] less opportunity than other members of the electorate to participate in the political process.” 42 U.S.C. § 1973(b). Both federal and Texas law protect and provide assistance to voters who are unable to read the ballot.

In the language of § 5 jurisprudence, this determination involves a determination that the change is not retrogressive. Young v. Fordice, 520 U.S. 273, 1997 U.S. LEXIS 2076 (U.S., March 31, 1997, Decided ) The only questions in an action alleging a violation of the preclearance requirement of § 5 of the Voting Rights Act of 1965, as amended, Case 3:11-cv-00318-CWR -LRA Document 35 Filed 03/16/12 Page 10 of 13 11    42 U.S.C.S. § 1973 et seq., are (1) whether a change is covered by § 5, (2) if the change is covered, whether § 5's approval requirements have been satisfied, and (3) if the requirements have not been satisfied, what relief is appropriate. The question whether a given act had a discriminatory purpose or effect… must be initially decided by the District Court for the District of Columbia or the Attorney General.