The correct comparison is between th ban on literacy tests and the ban on conditioning the right to vote on the “ability to read, write, understand, or interpret any matter in the English language.” 42 U.S.C. § 1973b(e)(1). In both instances, Congress outlawed a de jure barrier to voting with a discriminatory history that directly interfered with the right to vote.

The correct comparison is between th ban on literacy tests and the ban on conditioning the right to vote on the “ability to read, write, understand, or interpret any matter in the English language.” 42 U.S.C. § 1973b(e)(1). In both instances, Congress outlawed a de jure barrier to voting with a discriminatory history that directly interfered with the right to vote.

Case 1:10-cv-00561-JDB Document 55 Filed 08/01/11 Page 38 of 56   28 minority group].” 42 U.S.C. 1973c(a); 42 U.S.C. 1973b(f). While the 2006 Amendments seek to guide the manner in which Subsection (a)’s general standard is applied, they do not alter that subsection.

Specifically, the 2006 Congress continued to use election results that were 34 to 42 years old—i.e., from the 1964, 1968, and 1972 elections—as the basis for denying citizens of previously covered jurisdictions the ability to establish voting procedures absent federal approval. See 42 U.S.C. §§ 1973b(b), 1973c(a); supra at 4-5 & n.1. The fact that the 2006 Congress did not even attempt to identify which jurisdictions in recent times have engaged in unusual levels of voting discrimination, much less at a level requiring the extraordinary preclearance burden, is sufficient, standing alone, to demonstrate Section 5’s invalidity.

Plaintiffs have not identified any authority to support their claim that the wording of a ballot measure can give rise to a Voting Rights Act violation. While the Voting Rights Act does protect linguistic minorities who cannot understand the language used on the ballot, see 42 U.S.C. § 1973b(f)(2), that is not an issue here because the ballot included a Spanish translation of Proposition 1. In forty-seven years of reported cases, there is no precedent establishing a cause of action under the Voting Rights Act based on reading comprehension.

94-1), although (for reasons not explained) it now omits any specific reference to the Tenth Amendment or Article IV. Likewise, the Supreme Court ruled unconstitutional Congress’ reauthorization of Section 5’s geographic coverage provisions, 42 U.S.C. § 1973b, based on Tenth Amendment considerations, 133 S. Ct. at 2623, and the “fundamental principle of equal sovereignty among the States.” Id.

................3 Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252 (1977) ...........................................................................................................24 Warth v. Seldin, 422 U.S. 490 (1975) ..............................................................................................7 Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008) .............23 Williams v. Standard Oil Co., 278 U.S. 235 (1929) ......................................................................18 STATUTES: 42 U.S.C. 1973 .................................................................................................................................2 Case 1:10-cv-00561-JDB Document 61 Filed 08/25/11 Page 5 of 34 v STATUTES (continued): PAGE 42 U.S.C. 1973a(c)...........................................................................................................................6 42 U.S.C. 1973b(a)(1) ........................................................................................................................... 6 42 U.S.C. 1973c(a) ............................................................................................................................... 17 Pub. L. No. 89-110, 79 Stat.

________________________________________ ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S APPLICATION FOR THREE-JUDGE COURT 1. Section 5 of the Voting Rights Act of 1965, as amended, (“VRA”), 42 U.S.C. § 1973c, prohibits the enforcement in any jurisdiction covered by Section 4(b) of the Act, 42 U.S.C. § 1973b(b), of any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that enforced or in effect on the date used to determine coverage, until preclearance is obtained. 2.

Shelby County is not seeking bailout, and indisputably cannot seek bailout, as this Court lacks the authority to adjudicate a bailout claim. See 42 U.S.C. § 1973b(a)(5); Laroque v. Holder, No. 10-cv-561, at 2 n.2 (May 12, 2010) (order denying application for three-judge panel) (“Section 4 of the Voting Rights Act . . . requires a three-judge panel to hear actions by covered jurisdictions seeking to bail out from Section 5’s preclearance requirement.”).