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Case number 14-5138, Shelby County, Alabama, appellate versus Eric H. Golding, Jr.

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In his official capacity as Attorney General of the United States at L, Mr. Ryan for the appellate, Mr. Ho for intravenous appellee, and Mr. Pollock for the appellee.

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Good morning, Your Honors.

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May it please the Court?

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Good morning.

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This case raises a core single issue, which is outcome-determined.

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And that issue is whether Shelby County, in prevailing in its underlying merits action, enforced the voting guarantees of the 15th or 14th Amendment.

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What are the voting guarantees of the 14th or 15th Amendment?

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Well, and that, of course, is the question, what's guaranteed?

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And this goes back to the whole question of the structure of the amendments, the structure of a government of limited and enumerated powers.

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Because those amendments don't spell out and say, here's a vote, this is what voting is.

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This is what you can get.

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What they do is they prohibit, in the case of the 15th Amendment, both the federal government and the states from taking actions that would impair the underlying right to vote.

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the underlying right to vote, the individual's right to vote.

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The individual's right to vote, but that individual's right to vote has been defined more broadly, certainly in the Voting Rights Act and by the courts, to include a right to have a meaningful vote with respect to where it counts, what's the structure into which you're voting.

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And certainly that's been true

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Mr. Ryan, it's clear, by the way, welcome back, we thank you.

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It seems to me that there's no question that your victory in the Supreme Court was a vindication of the state's interest in the voting process.

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I'm having trouble seeing how it might have been a vindication of the individual's voting rights.

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Can you help me see that?

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Yeah, because the county here is a

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instrument through which the individual voters exercise their right to structure the voting process.

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So they delegate to the county the right to say, well, how's this election going to be organized?

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Is it multi-district?

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Is it single-district?

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Is it two years?

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Is it three years?

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This is all done through the mechanism of government by the consent of the government.

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But everything starts from the consent of the government.

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When the Declaration of Independence, which is a predecessor doctrine to the Constitution, is written, it's endowed by the Creator with certain unalienable rights.

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And what we've always assumed is rights belong to the people.

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Now the people can delegate those rights to the state, they can delegate those rights to the federal government.

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But the federal government has only those powers which are delegated... Isn't it hard to argue in the history of the 15th Amendment that that was protecting some collective right of the states?

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I mean, in fact, it was the conduct of the states that brought about the Reconstruction Amendment.

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So isn't it hard to make that

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that argument, sort of any originalist argument that that was what was going on there?

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Well, I think I can make that argument.

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And even Judge Bates said it was ingenious, but it isn't just ingenious.

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It's really quite fundamental.

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Because when you look at the 15th Amendment, it has two sections.

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The first of which prohibits the states and the federal government, because it reads against both, from taking certain kinds of discriminatory actions that would affect voting.

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But the second section says that the enforcement power must be appropriately used.

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And the same is true of the 14th Amendment.

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So this case was founded on that second section of the 15th Amendment.

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Look at the pleading, the merits case, which you had before you before.

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What we said is, this is not appropriate action, and therefore it goes beyond the power of the Congress under the 15th Amendment.

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And, derivatively, because it does, then it must infringe the 10th Amendment, because the 10th Amendment is a catch-all that restates the premise that that which is not delegated and enumerated, not within the federal power, then resides back with the individual or the state to which the individual has delegated that responsibility.

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So that is— The only—the only—I'm looking at the amendment.

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The only voting guarantee I see in the 15th Amendment is the guarantee not to be discriminated against on the basis of race and voting.

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Well, that is certainly incorporated.

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We've never said it doesn't do that.

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Of course it doesn't.

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What other voting guarantee?

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I understand your argument about state autonomy, but that existed prior to the 15th Amendment.

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The 15th Amendment didn't vest the states with any new autonomy.

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The 15th Amendment created a new right to be free from racial discrimination in voting.

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It created a right to be free of certain government actions that were enumerated or spelled out in the 15th Amendment, and the basic one was racial discrimination in voting.

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Counsel, isn't your position stronger on the 14th Amendment than it is on the 15th?

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Well, the 14th Amendment covers more than voting.

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But with respect to voting?

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Well, because voting there is derived from the equal protection, and the Fourteenth Amendment says you can only act as appropriate, and we were taken the position that the Voting Rights Act was no longer an appropriate measure, certainly under the formula.

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I'm thinking of the Fourteenth, but when the right to vote in any election, etc., etc., etc., is in any way abridged.

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That doesn't limit it to race, sex, etc.

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So it seemed to me your argument was even stronger, it was stronger than the 14th than it would be in the 15th.

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I would agree that the individual's right to vote, as that has been generally expanded by the courts, was abridged in Shelby County less than until the court declared that the formula was invalid and Section 5 was unenforceable.

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And that was the thrust of the case.

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It was to return to the individual residents of the county and the county

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the powers that were inherent, that the right to vote existed before the 15th Amendment.

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Is that the argument you made?

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My memory was the argument was largely, perhaps exclusively, on the vindication of the principles of state sovereignty and the state's rights.

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I don't remember hearing much about how that would affect the individual voting rights.

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Because the party in interest here was Shelby County.

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So to the extent that that county was the repository and held the rights and interests.

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But our papers below made very clear that what the case was about was the limitation on federal intrusion.

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That intrusion, for standing reasons, was directed against the county.

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Judge Williams, in his dissent, did refer to the 14th Amendment, pointing out that

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He was quoting, actually, from the String Court case in Boston that the way Section 5 had been interpreted was contrary to the 14th Amendment.

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And so that has to be referring to Section 2 of the 14th Amendment, as well as Section 5, appropriate legislation.

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Section 2 deals with abridgment of the right to vote.

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I have great sympathy for Judge Williams' opinion.

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responding to your argument?

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Well, actually, it wasn't.

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Judge Williams' opinion was dealing heavily with the formula and whether the formula continued to be appropriate.

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But did Judge Williams dissent?

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Did his argument that

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pre-clearance forced or deprived the states of an option for maximizing minority voting because of amendments in the 2006 amendment.

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That wasn't responsive to anything you argued, was it?

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Well, I mean, that dealt with the substantive standards of Section 5.

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Well, Counselor, did you rely on the 14th Amendment or did you not?

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Yes, we did.

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Because the VRA was originally founded exclusively on the 15th, it was expanded to the 14th.

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To make our case, we had to show that neither the 14th nor the 15th justified the VRA in current circumstances.

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That was the core of the case.

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That's the way the Supreme Court decided the case.

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So you argued that the legislation was not appropriate

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Section 5 of the 14th.

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And therefore, beyond the power of the Congress to intervene in state affairs, because preexisting, what were the rights?

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Who had the right to structure elections quite freely?

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It was the people and the states to the extent the people gave them those rights.

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The 15th Amendment said, yes, you can do it, but you can't do it in ways that discriminate by race.

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And the 14th Amendment is read to give broader federal control over that.

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So you have the right first.

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I'm struck by the fact that the 14th Protection of the Right to Vote is not focused on race at all.

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Correct.

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So your theory, I'm sorry.

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Go ahead.

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And so I guess from our point of view, what we were doing was to say the situation, Congress changed the situation by enacting in the states ratifying the 15th Amendment to give an additional set of powers, anti-discrimination powers to the federal government.

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if appropriately exercised.

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So there's a balance in those amendments.

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If you go back to the legislative history of the amendments, there was an argument as to whether this should be a delegated, enumerated power.

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The power to run state elections could have been done by amendment to the Constitution.

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It wasn't, because there was a tension in there.

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To what extent should the federal government be allowed to intervene?

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And if you look at a case like Oregon v. Mitchell.

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In Oregon v. Mitchell, the Congress said, we're going to declare

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18 years old as the voting age, both for federal and state election.

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The Supreme Court says, well, for federal elections, you have an enumerated delegated power.

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You have the power to set the conditions of federal elections.

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You can do it.

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But you can't intervene against the states there and against the people who have decided, no, they want to preserve this right to people 21 and above.

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So that line's been drawn throughout this jurisdiction.

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So your theory then, I want to be sure to understand, your theory is then that this case is brought

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under the voting rights of the 15th Amendment protected by the amendment, because what you're doing is you're enforcing the appropriate legislation language of Section 2, which protects the states from unnecessary interference by the federal government as it enforces the nondiscrimination provisions, right?

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not only the states, but the people thereof.

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Excuse me, were you talking about the 15th Amendment?

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Well, you know what?

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They both have the same enforcement clause.

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They're very similar.

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So your view is that the appropriate legislation, when the framers of the amendment put that in there, they weren't just thinking that it had to be appropriate to enforce

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to prohibit discrimination in voting, but it had to be also protective of state sovereignty and autonomy, correct?

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Well, it had to be appropriate, meaning it had to meet the circumstances justifying the kind of intervention that was being done.

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Do you think that the, but no, but I want to be sure.

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So you see the appropriate legislation as including

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protection of, well that's what you say in your, in your, in your, in your, in your, in your, in your,

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It says... Your Honor, I'm not sure our brief said that.

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I mean, that's not the way we articulated it, because that preexisting right was there, and what the appropriate limitation did was say to Congress, you can't interfere with a preexisting right unless you have appropriate circumstances in which this intervention supports the first clause of the Fifth Amendment.

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But what I was asking is whether you think that's what they were, the framers were thinking of when they put that language in there.

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And I'm saying, I think the framers were thinking in two directions.

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One, what can we do to safeguard individuals against discrimination, either by the federal or state government in the 15th Amendment?

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And second, they were saying, well, how do we delimit that power so that it doesn't

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become a takeover and a usurpation of the originating the right of the people through government to structure their electoral process.

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Do you think that we should interpret Section 2 of the 13th Amendment the same way?

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It's identical language.

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Well, I think that, I mean, we did not challenge that, and I don't know.

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I know you didn't, but this is identical language to what's in the 13th Amendment.

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I'm asking you whether, when Congress banned slavery and gave, we added the 13th Amendment to the Constitution and gave Congress authority to enforce it by appropriate means, that the framers of that amendment included in that protection of existing State sovereignty.

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Well, and I think that one could envision, hypothetically, cases in which the Congress has the broad power to prohibit slavery.

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But there may be questions.

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For example, in a penal system, if you require hard labor, is that slavery?

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And so that gets into the question of, is this the right of the people through the states to adjudicate, or does the power now sweep?

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And so you could argue about what's appropriate in that recall.

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And just to back up, and those are some of the voting guarantees.

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And so we've got two words, voting and guarantee.

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And I think we're discussing what is guarantee.

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But with respect, voting means with respect to voting.

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And first of all, that had to be put in there because the Fourteenth Amendment deals with a whole variety of subjects.

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So if you said guarantees of the Fourteenth Amendment, you'd have much broader legislation.

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But voting has been interpreted, you know, if you go all the way back to Allen, and the question, is it encompassed within the vote to determine whether you have a single district or a multi-district?

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And the answer is yes.

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That's part of voting, how you structure the government, how you structure the process, always been deemed to be part of voting, making the vote effective.

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And so the VRA says in Section 14C,

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And therefore, the question then becomes, when you intervene in that, do you have an appropriate basis to do it?

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Let me ask you to sort of move to the entitlement question a little bit.

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Piggy Park tells us that attorney's fees are available for suits that vindicate the Voting Rights Act.

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The language of the case is vindicate a policy that Congress considered of the highest priority.

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Right.

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Help me understand how your suit could be seen as vindicating a policy that Congress considered of the highest priority when the purpose of your suit was to declare unconstitutional the means Congress had decided upon.

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Piggie Park dealt with a specific circumstance in enforcement of the Civil Rights Act.

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So it set a general rule.

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And the question is not, are we Piggie Park as such?

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It is, was it contested in this case that the Piggie Park rule would apply to a plaintiff?

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And we are of a plaintiff.

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It's not a defendant case.

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That's a certain type of plaintiff, right?

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It's a plaintiff that's seeking to vindicate the congressional policies.

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It's a private attorney general.

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If you say you're foursquare on Piggy Park, yes, but that standard was viewed by the, certainly by the court below, and the parties have not contested that that would equally imply to anybody who succeeded in enforcing a voting guarantee.

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Now, you might say, well, that isn't quite the same thing as somebody who vindicates a statutory policy and so writes that.

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It isn't the same thing, is it?

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But that doesn't mean the standard isn't equally applicable.

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And certainly the Congress standard, the Christian work standard, so to speak, is entirely different in its facts.

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Well, isn't this exactly the core of Judge Bates' opinion below?

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your position is contrary to the statute, i.e.

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therefore, Congress would not have possibly authorized attorney's fees to challenge the constitutionality of the statute.

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And he's at something like that, although he did say we were not enforcing the voting guarantees, which is fundamentally different.

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Well, but at the very end of his opinion, that's his final... That's the nail he puts in your coffin.

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And it's really easily falsifiable, and I'll tell you why.

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If Congress passed a statute effecting voting that was attacked under the 15th Amendment as- Why do you not- Why don't you keep the 14th?

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Because your case is stronger on the 14th than it is on the 13th.

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Because the 14th Amendment- Because look at the language of the 14th that says, in any way a bridge, voting is any way a bridge.

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whereas the fifteenth talks about racism.

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I'm surprised you don't hammer the fourteenth.

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I know you mentioned the fourteenth.

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Well, we could argue, I guess what I'm saying is we could argue, derivatively, that the fifth incorporates the fourteenth.

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The fourteenth, by its terms,

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only deals with the states.

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And so that's why we had focused.

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And so I'm just giving you an example.

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If Congress passed a law that could be challenged either under the 15th or the 5th deriving from the 14th, the fact that it was passed by an overwhelming majority would not put it outside the language that Congress passed

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in the fee's provision, because the person bringing the case would have succeeded in enforcing a guarantee, and here a more traditional guarantee, I should be free from racial discrimination.

[00:19:08] Speaker 05:
I'm not sure you're answering the point.

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Maybe I'm missing it.

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Let me repeat.

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Bates says, how could we possibly conclude that Congress would wish to incentivize an attack on the constitutionality of the Congress's statute?

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And the answer we have given is Congress passed a clause, a... You said 14E trumps that.

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14E, that's the first expression of the congressional will.

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And that clause says expressly, if you enforce the guarantees,

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And you prevail.

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You seek to.

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You bring an action or a procedure.

[00:19:43] Speaker 03:
But Mr. Ryan, aren't you just emphasizing the distinction between eligibility and entitlement?

[00:19:48] Speaker 03:
14 EE is the portal through which one determines fees.

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You're eligible for them, right?

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And that's this broad inquiry as to whether you're seeking to enforce the voting guarantees.

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But at least as I read Piggy Park, there's a separate inquiry now as to entitlement.

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And that's the question that both Judge Silberman and I were asking, and I think Judge Bates relied on.

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It's hard to see under Piggy Park how you're entitled to these fees because you're striking

[00:20:23] Speaker 03:
You're seeking to strike a provision that is unconstitutional provision of Congress.

[00:20:30] Speaker 06:
That's a gloss on the legislative language because the legislative language is quite straightforward.

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You know, if you prevail in an action or proceeding to enforce the guarantees, you're entitled to attorney's fees.

[00:20:43] Speaker 04:
Well, actually, I think Judge Griffith was focusing on the language in Piggy Park, which says that the fee provision is designed to promote private litigation as a means of securing broad compliance with the law.

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And the law in that case was the Civil Rights Act of 1964.

[00:20:59] Speaker 04:
And Drew, let's assume you're right that you're seeking to enforce rights guaranteed by the 14th and 15th Amendment, but not through the law passed by Congress.

[00:21:09] Speaker 04:
So his point is that Piggy Park

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says, raises a serious question about your eligibility for it.

[00:21:17] Speaker 06:
Well, he put a gloss on that, and he treated it as if there were two alternative standards.

[00:21:21] Speaker 06:
I mean, and the one, the other one, Christian Borg, which you applied, has no comparison to this case, because it was a defense case.

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It didn't create any law of broad applicability.

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It was defended on the grounds it was untimely.

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There was no wrongdoing in the constitutional or statutory sense by the party against whom the fees were sought.

[00:21:41] Speaker 06:
So there's nothing about that case that compares to this one.

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Now, the statute, we want to be fair with the court, the statute talks about discretion.

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So the question, how is discretion to be exercised?

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And that's what you're raising, Judge Griffith.

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But the premise of Judge Bates' exercise of discretion was that we were not pursuing the kind of right, the purposive kind of right.

[00:22:05] Speaker 06:
That's the word he used, purposive.

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And our belief is the statute doesn't say purpose is right.

[00:22:11] Speaker 06:
The statute says if you enforce the guarantees, you're entitled.

[00:22:14] Speaker 03:
But Piggy Park, how do we, if we were to write an opinion that you would like, how do we get around Piggy Park?

[00:22:22] Speaker 06:
I'd say that maybe in another case one could argue about is

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Is the bound on discretion in Piggy Park authorized?

[00:22:33] Speaker 06:
There are other cases.

[00:22:34] Speaker 06:
We pointed out Fogarty, where the court said it was even-handed.

[00:22:37] Speaker 06:
Both parties are eligible for fees.

[00:22:39] Speaker 05:
Counsel, is the structure of Title VII the same as the structure of this case?

[00:22:45] Speaker 06:
No.

[00:22:45] Speaker 06:
Title VII is, after all, a statutory enactment.

[00:22:48] Speaker 06:
And these fees were sought.

[00:22:51] Speaker 05:
You don't have anything in Title VII that's like this limitation of appropriate legislation.

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or a language in any way abridging, you don't have something like that.

[00:23:06] Speaker 06:
Title VII is more binary.

[00:23:11] Speaker 06:
It's a paradigm in which somebody says, the statute gives me certain rights, I'm enforcing them, the other party says no, either you can't because you're untimely or you're wrong.

[00:23:21] Speaker 06:
But it doesn't present the same kind of opportunity that this did to actually challenge itself under the language of the Constitution.

[00:23:29] Speaker 06:
And I think it's when the Congress enacts statutory language, that's the first and primary reference.

[00:23:36] Speaker 06:
The glosses one could put on it are different.

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And nobody in this case contested that a successful plaintiff who enforces a guarantee

[00:23:46] Speaker 06:
should be treated for discretionary purposes under Picky Park.

[00:23:49] Speaker 06:
What was contested is, well, you're more like a defendant, therefore you should be under Christian Board, which we don't think has any applicability.

[00:23:57] Speaker 06:
We're not a defendant.

[00:23:59] Speaker 06:
We affirmatively sought to be protected by a guarantee that's within the amendment.

[00:24:04] Speaker 06:
We established a principle of broad applicability.

[00:24:07] Speaker 06:
And the government was a wrongdoer.

[00:24:09] Speaker 06:
The government had imposed costs on Shelby County in an unconstitutional manner.

[00:24:17] Speaker 05:
Am I correct reading your briefs that you are absolutely foregoing any claim of attorney's fees against the interviewer?

[00:24:25] Speaker 05:
Yes.

[00:24:26] Speaker 05:
Absolutely.

[00:24:26] Speaker 05:
There's no question about it.

[00:24:27] Speaker 05:
There's no question.

[00:24:28] Speaker 06:
Forever and ever and ever and ever.

[00:24:31] Speaker 06:
And I will say this.

[00:24:31] Speaker 06:
The original motion might have been read more generally against defendants.

[00:24:37] Speaker 06:
We made clear to the district court, both in brief and expressly, that we were not seeking- And in your brief here.

[00:24:44] Speaker 06:
Yes.

[00:24:44] Speaker 06:
And we've said it.

[00:24:46] Speaker 06:
And we do not seek it, and we certainly respect the teaching of Zipes in that regard, and the government is fully capable of paying it.

[00:24:53] Speaker 06:
And I'd say one other thing.

[00:24:54] Speaker 06:
One thing that the statute was intended to do, and it certainly comes in legislative history, is avoid imbalance in resources.

[00:25:02] Speaker 06:
That is to say, one concern was, well, if you seek to enforce your rights as an individual, the resources are on the other side.

[00:25:09] Speaker 06:
But here, it's backwards.

[00:25:12] Speaker 06:
Shelby is less resourced because the only

[00:25:14] Speaker 06:
Tardy

[00:25:18] Speaker 05:
have enough resources.

[00:25:19] Speaker 06:
Excuse me.

[00:25:20] Speaker 06:
Well, they may not have enough.

[00:25:21] Speaker 06:
But relative to Shelby County, they're a lot better off.

[00:25:23] Speaker 06:
But the point being that it's not an imbalance in resources.

[00:25:26] Speaker 06:
This kind of litigation can hold to control against the federal government.

[00:25:29] Speaker 04:
I just have a follow-up question to Judge Silverman.

[00:25:33] Speaker 04:
The footnote in the intervener's brief says, I think this is a footnote.

[00:25:40] Speaker 04:
They say, although Shelby has said it's not seeking fees as a legal matter,

[00:25:48] Speaker 04:
You've taken the position that defending interveners are, quote, responsible parties.

[00:25:56] Speaker 04:
You disavow that too now?

[00:25:58] Speaker 06:
Well, what we did, we take that position, but we recognize that under Zipes, in order to be a party against whom a fee could be awarded, you have to be a wrongdoer.

[00:26:09] Speaker 06:
And we did not claim they were wrongdoers.

[00:26:11] Speaker 06:
The actions here were all actions of the attorney general, not the actions of the interveners.

[00:26:16] Speaker 06:
And in fact, we had contested their intervention in the beginning on a mandatory basis.

[00:26:20] Speaker 06:
We kind of said, look, they're permissive and under a restriction that says you're in a quasi amicus, come one, come all.

[00:26:25] Speaker 06:
We never tried to restrict people from having their say, but we did not recognize them as an active party here.

[00:26:33] Speaker 06:
They're a philosophical party, and they're no different from any other taxpayer.

[00:26:37] Speaker 06:
But since we considered that this would be a case that would involve many people, we didn't try to restrict briefing in the case, and we haven't here.

[00:26:45] Speaker 04:
Anything else?

[00:26:46] Speaker 04:
Okay, thank you.

[00:26:47] Speaker 06:
Thank you.

[00:26:48] Speaker 04:
We'll hear from the intervener defense, Mr. Cohn.

[00:27:00] Speaker 02:
Good morning, Your Honors.

[00:27:02] Speaker 02:
My name is Dale Ho of the American Civil Liberties Union on behalf of the defendant-intervenors.

[00:27:08] Speaker 02:
We requested oral argument, as I believe Your Honors know, in response to the Court's order of April 3rd directing counsel for the parties to be prepared to address the defendant-intervenors' standing.

[00:27:18] Speaker 02:
And we read that order in light of Shelby County's statement in footnote 12 of its reply brief, which I think we understood as the first time that Shelby County was expressly and clearly stating that it was not seeking fees against the defendant interveners.

[00:27:33] Speaker 02:
So I think we're all in agreement, at least counsel are, that the defendant interveners don't have a direct financial stake in the outcome of this dispute.

[00:27:44] Speaker 05:
as if you were amicus.

[00:27:47] Speaker 02:
Well, I think since the only dispute now at this point lies... Well, I have a question for you, since you were amicus.

[00:27:55] Speaker 05:
Suppose a new Congress were to pass a new version of the Voting Rights Act, which in your

[00:28:11] Speaker 05:
are what we live by.

[00:28:13] Speaker 05:
And it was, in your view, blatantly discriminatory against minorities.

[00:28:25] Speaker 05:
You would sue under those circumstances, I'm sure.

[00:28:28] Speaker 05:
Would you not?

[00:28:30] Speaker 02:
It's a little bit of a vague hypothetical judgment, but if we believed that a new enactment of Congress violated the 15th Amendment, it's likely some party would sue.

[00:28:36] Speaker 02:
14th or 15th.

[00:28:37] Speaker 02:
14th or 15th.

[00:28:37] Speaker 02:
14th or 15th.

[00:28:38] Speaker 02:
14th or 15th.

[00:28:38] Speaker 02:
14th or 15th.

[00:28:39] Speaker 02:
14th or 15th.

[00:28:39] Speaker 02:
14th or 15th.

[00:28:39] Speaker 02:
14th or 15th.

[00:28:40] Speaker 02:
14th or 15th.

[00:28:41] Speaker 02:
14th or 15th.

[00:28:41] Speaker 02:
14th or 15th.

[00:28:42] Speaker 02:
14th or 15th.

[00:28:42] Speaker 02:
14th or 15th.

[00:28:42] Speaker 05:
14th or 15th.

[00:28:43] Speaker 05:
14th or 15th.

[00:28:43] Speaker 02:
14th or 15th.

[00:28:43] Speaker 02:
14th or 15th.

[00:28:44] Speaker 02:
14th or 15th.

[00:28:44] Speaker 02:
14th or 15th.

[00:28:44] Speaker 02:
14th or 15th.

[00:28:45] Speaker 05:
14th or 15th.

[00:28:45] Speaker 05:
14th or 15th.

[00:28:46] Speaker 02:
14th or 15th.

[00:28:46] Speaker 05:
14th or 15th.

[00:28:46] Speaker 05:
14th or 15th.

[00:28:47] Speaker 05:
14th or 15th.

[00:28:47] Speaker 05:
14th or 15th.

[00:28:47] Speaker 05:
14th or 15th.

[00:28:48] Speaker 05:
14th or 15th.

[00:28:48] Speaker 05:
14th or 15th.

[00:28:49] Speaker 02:
14th or 15th.

[00:28:49] Speaker ?:
14th

[00:28:50] Speaker 02:
If an enactment of Congress directly violated the 14th and 15th Amendments prohibitions on racial discrimination, and the 14th only applies to the states but is incorporated against the federal government through the Fifth Amendment, then I think we would.

[00:29:04] Speaker 05:
Or some parties certainly probably would.

[00:29:09] Speaker 02:
If there were a violation of those amendments guarantees against racial discrimination in voting, then I think a party could be entitled to attorney's fees.

[00:29:20] Speaker 04:
Right.

[00:29:21] Speaker 04:
Well, let me ask you a different type of thing.

[00:29:24] Speaker 04:
Suppose under the Old Voting Rights Act, a state submitted say a redistricting plan that it thought was most protective of minority voting power.

[00:29:36] Speaker 04:
and the Attorney General objective.

[00:29:41] Speaker 04:
And that state sues, arguing that it's seeking to protect rights guaranteed by the 14th and 15th Amendments, and it wins.

[00:29:53] Speaker 04:
In other words, we rule that Section 5 is unconstitutional with respect as applied to that particular submission.

[00:30:02] Speaker 04:
Would that state get fees?

[00:30:07] Speaker 02:
It's hard for me to see how a jurisdiction could obtain fees in that situation, Judge Tabel.

[00:30:15] Speaker 02:
The cases in which jurisdictions seeking, acting as plaintiffs in a case under the Voting Rights Act, have obtained fees have generally been situations where the position of their adversary has been frivolous or unreasonable.

[00:30:32] Speaker 04:
No, no, but I know that.

[00:30:33] Speaker 04:
I know what those cases are.

[00:30:34] Speaker 04:
I'm just asking about this case.

[00:30:36] Speaker 04:
Why wouldn't that state be seeking to enforce voting rights guaranteed by the 14th, 15th Amendment?

[00:30:45] Speaker 04:
Because we're just not arguing as Shelby is here.

[00:30:49] Speaker 04:
Maybe Shelby's right.

[00:30:50] Speaker 04:
I don't know.

[00:30:50] Speaker 04:
But it's not arguing that it's seeking to protect state sovereignty or state autonomy over the voting process.

[00:30:58] Speaker 04:
It's arguing our redistricting plan is more protective of minority voting rights

[00:31:05] Speaker 04:
then the alternative and the Justice Department rejected it.

[00:31:09] Speaker 04:
Why isn't that a suit brought to protect rights guaranteed by the 14th and 15th Amendments?

[00:31:14] Speaker 02:
Well, I think what the jurisdiction in that circumstance, Judge Tatel, would be seeking to do would be seeking to enhance the influence or the political power of the minority community, which I think is distinct from what is protected by the 14th or 15th Amendments.

[00:31:30] Speaker 02:
Those amendments prohibit racial discrimination in voting, but don't in any way sort of seek to maximize political influence of minority communities.

[00:31:38] Speaker 05:
The 14th Amendment doesn't refer to race.

[00:31:43] Speaker 05:
15th does, not the 14th.

[00:31:45] Speaker 02:
The 15th Amendment by its terms does explicitly refer to race.

[00:31:48] Speaker 02:
The 14th Amendment has been interpreted to prohibit undue burdens on voting rights, for instance, in the Anderson-Burdick context in a race neutral manner.

[00:31:58] Speaker 04:
See, I would have thought your answer to my question was, yeah, of course they would get fees, but that's not this case.

[00:32:04] Speaker 05:
I would like one other question.

[00:32:06] Speaker 05:
It's perfectly clear, is it not?

[00:32:08] Speaker 05:
that under both the 14th and 15th amendments and the voting guarantees under the Voting Rights Act apply to non-minorities.

[00:32:25] Speaker 02:
Judge Silverman, the 15th Amendment clearly prohibits any kind of racial discrimination on voting, regardless of who's at issue.

[00:32:32] Speaker 02:
Now, there are provisions of the Voting Rights Act that directly protect minority groups specifically.

[00:32:40] Speaker 05:
I'm talking specifically about the 14th and 15th now.

[00:32:43] Speaker 05:
The voting guarantees of the 14th and 15th are certainly those that would extend to non-minorities.

[00:32:52] Speaker 02:
So if your question, Judge Silverman, is do the prohibitions on racial discrimination and voting contained in the 14th and 15th Amendments apply in a race-neutral manner, then I believe the answer to that question would be yes.

[00:33:06] Speaker 04:
Thank you.

[00:33:07] Speaker 02:
Thank you, Your Honor.

[00:33:15] Speaker 01:
I want to talk about five reasons to reject Shelby County's argument that what it was doing in this litigation was seeking to enforce the voting guarantees of the 14th or 15th Amendments, and that's the only basis for fee eligibility that Shelby County is raising here.

[00:33:35] Speaker 01:
The first is the plain language.

[00:33:36] Speaker 01:
Grants of authority to Congress under Section 2 of the 15th Amendment and Section 5 of the

[00:33:41] Speaker 01:
14th Amendment or not.

[00:33:42] Speaker 05:
Sorry, I can't hear you.

[00:33:43] Speaker 01:
Sorry.

[00:33:44] Speaker 01:
Grants of authority to Congress under Section 2 of the 15th Amendment and Section 5 of the 14th Amendment are not voting guarantees to states.

[00:33:54] Speaker 01:
The fact that the authority that is given to Congress under those sections is not unlimited does not make everything that falls outside of that authority somehow a guarantee or specifically a voting guarantee.

[00:34:08] Speaker 04:
And the second point is that... Well, that's what his argument is.

[00:34:11] Speaker 04:
His argument is that appropriate means that it has to be appropriate to eliminating racial discrimination in voting, but anything that goes beyond that would be an interference in state sovereignty and autonomy over the voting process.

[00:34:28] Speaker 01:
Your Honor, I understand that's his theory.

[00:34:31] Speaker 05:
I would modify his theory, it's broader than that, that something that goes beyond that bridges

[00:34:37] Speaker 05:
the right to vote, as it's referred to in Section 2 of the 14th Amendment, as it extends to the states.

[00:34:45] Speaker 01:
So to be clear, Shelby County has never brought an equal protection clause claim on behalf of its citizens.

[00:34:56] Speaker 03:
In this case, Shelby County's claim on the merits was... That's not an equal protection claim that Judge Silver's talking about.

[00:35:02] Speaker 03:
It's the right of the people to organize their elections according to majority rule.

[00:35:08] Speaker 03:
That's the voting right that's being referred to in the 14th Amendment, Section 2.

[00:35:13] Speaker 03:
Why isn't that a voting guarantee?

[00:35:16] Speaker 03:
It is a voting guarantee.

[00:35:18] Speaker 03:
And the language of the statute says voting guarantees not just of the 15th Amendment, but of the 14th Amendment.

[00:35:23] Speaker 03:
And one of the voting guarantees of the 14th Amendment, according to Section 2, can't abridge the right of the people to put their elections together the way

[00:35:32] Speaker 03:
They decide by majority rule?

[00:35:34] Speaker 01:
Your Honor, this case is about what that term means in the fees provision in Section 14E.

[00:35:42] Speaker 01:
And what I would submit is the straightforward reading of the fees provision is that the voting guarantees of the 14th or 15th Amendment are the voting guarantees that they affirmatively make, not the

[00:36:00] Speaker 01:
appropriate mislimitations on Congress's authority.

[00:36:03] Speaker 01:
And I think Section 3 of the Voting Rights Act confirms that.

[00:36:06] Speaker 05:
What about Section 2?

[00:36:08] Speaker 05:
What about Section 2 of the 14th Amendment?

[00:36:11] Speaker 05:
I keep referring to it.

[00:36:15] Speaker 05:
Or in any way abridged.

[00:36:17] Speaker 05:
Voting rights in any way abridged.

[00:36:21] Speaker 01:
For one, I don't think that's the argument that Shelby County has made.

[00:36:26] Speaker 05:
I think they've founded their entire argument on- They do rely on the 14th Amendment.

[00:36:30] Speaker 01:
But they specifically in their complaint, they rely on the appropriateness limitations of the Section 5 of the 14th Amendment and Section 2 of the 15th Amendment.

[00:36:39] Speaker 05:
Would you say, would you come out differently if they had explicitly referred to it in any way abridged?

[00:36:46] Speaker 01:
Well, because I know, because I don't think that's what Congress intended by the voting guarantees of the 14th and 15th Amendment in the statute, and I think that's clear from context.

[00:36:58] Speaker 03:
From your brief, your argument is that it's an individual voting right.

[00:37:01] Speaker 00:
That's right.

[00:37:02] Speaker 03:
What is the basis for that?

[00:37:03] Speaker 03:
Where do you get that from?

[00:37:04] Speaker 03:
That the voting guarantees of the 14th and 15th Amendment referred to in 14E are individual

[00:37:11] Speaker 03:
voting rights only.

[00:37:13] Speaker 03:
Why don't they include the voting rights of the county to organize its elections according to

[00:37:21] Speaker 03:
its own sense of what's fair and equitable and just.

[00:37:23] Speaker 01:
Well, I think that this Court can look to the context of the statute, and I would point to two things at least.

[00:37:30] Speaker 01:
Number one is Section 3 of the Voting Rights Act, which uses the same phrase to describe cases that are clearly individual voting rights cases, but it also uses the phrase voting guarantees of Section 4 F2, which is a provision that

[00:37:46] Speaker 01:
provides voting rights for members of language minority groups.

[00:37:49] Speaker 01:
So I think it's clear from context that when... It puzzles me about your position.

[00:37:52] Speaker 05:
I do, for the life of me, do not understand why Shelby County is not asserting individual rights.

[00:38:00] Speaker 05:
I mean, Shelby County is not an abstraction.

[00:38:04] Speaker 05:
There are human beings living there.

[00:38:06] Speaker 05:
So why in Shelby County asserts a claim here?

[00:38:11] Speaker 05:
Why is it not asserting a claim in behalf of its citizens?

[00:38:15] Speaker 01:
It's not.

[00:38:15] Speaker 01:
It's not.

[00:38:16] Speaker 05:
Individuals.

[00:38:17] Speaker 01:
Well, the rights that it was asserting are the federalism-based rights and the equal sovereignty rights that the Supreme Court relied on.

[00:38:29] Speaker 01:
And those aren't the voting guarantees that Congress was referring to in section 14E.

[00:38:35] Speaker 01:
What is your authority for that statement?

[00:38:37] Speaker 01:
So I would point to two things.

[00:38:41] Speaker 01:
I think it's clear from context that when Congress was, when they talked about the voting guarantees of a particular provision or a particular statutory or particular amendment, they were talking about the voting guarantees that provision or that amendment affirmatively

[00:39:02] Speaker 01:
supplies and then also it's so when when the statute was amended in 1975 and 14e the fees provision was added that fees provision originally read as it does now the voting guarantees at the 14th

[00:39:17] Speaker 01:
or 15th Amendment.

[00:39:18] Speaker 01:
But Congress also amended Section 3, which previously said the guarantees of the 15th Amendment.

[00:39:28] Speaker 01:
It amended it to say, now we're saying the voting guarantees of the 14th or 15th Amendment.

[00:39:32] Speaker 01:
And it's clear from context that what they were doing is saying, well, now we're going to add, because we've added these language rights provisions, and the 14th Amendment gives us the authority to do that.

[00:39:44] Speaker 01:
we're going to add the voting guarantees of the 14th Amendment to refer to a subset of the equal protection rights, individual equal protection rights that the 14th Amendment guarantees.

[00:39:54] Speaker 01:
And then finally, just the legislative history, it makes plain that what Congress thought it was doing in 1975 when it enacted the fees provision was giving folks whose voting rights were denied

[00:40:10] Speaker 01:
an incentive, an ability to vindicate the rights.

[00:40:14] Speaker 03:
But they didn't use the narrow language that you're pressing upon them now.

[00:40:17] Speaker 03:
They used broad language, voting guarantees in the 14th and 15th Amendment.

[00:40:21] Speaker 01:
But I think if, so in the legislative history, I think it's clear that what they intended was

[00:40:29] Speaker 01:
to provide these sorts of individual rights.

[00:40:32] Speaker 01:
Congress says, for example, fees awards are necessary.

[00:40:35] Speaker 03:
There's no question that the individual rights are part and parcel of it, but what is there in the face of the statute that would limit it to the individual rights?

[00:40:46] Speaker 03:
And that's the answer.

[00:40:48] Speaker 03:
There's nothing.

[00:40:48] Speaker 03:
Now, tell me about Piggy Park, though.

[00:40:50] Speaker 03:
I think that's your stronger argument.

[00:40:52] Speaker 03:
But maybe I'm misreading Piggy Park.

[00:40:54] Speaker 01:
Well, I think that the Piggy Park, Congress legislated based on the backdrop of this dual standard framework.

[00:41:01] Speaker 01:
And it's clear that Congress intended that framework to apply to this fees provision, and that Congress expected explicitly that- Well, you're talking about Title VII.

[00:41:09] Speaker 05:
And as I said earlier, Title VII, it's either a binary question, either there's discrimination or not discrimination.

[00:41:19] Speaker 05:
legislation.

[00:41:21] Speaker 01:
Your Honor, I don't think I am.

[00:41:22] Speaker 01:
I'm talking about what Congress was expecting to apply to this particular fees provision.

[00:41:27] Speaker 01:
I think it's absolutely clear that Congress thought that the dual standard framework would apply, and it's also absolutely clear that they thought that... So you're saying 14E was passed in light of Piggy Park?

[00:41:37] Speaker 03:
Yes.

[00:41:38] Speaker 05:
I think that's a fair proposition.

[00:41:40] Speaker 05:
They certainly considered Piggy Park, and it does apply to some situations, but not all.

[00:41:48] Speaker 01:
Please argue.

[00:41:49] Speaker 01:
Right, so they looked at the park and they said, we recognize that in voting cases sometimes the parties who are really enforcing the guarantees that we're trying to promote here, the voting rights, people whose civil rights are violated, sometimes those people in voting cases are in the position of a defendant because of the way Section 5 works.

[00:42:12] Speaker 01:
And so that's expressly there.

[00:42:14] Speaker 01:
And this court has said that in Medina.

[00:42:19] Speaker 05:
May I extend to one other question, if you would forgive me for interrupting you?

[00:42:26] Speaker 05:
You heard my question to the intervenor, Dashamigas.

[00:42:35] Speaker 05:
In the event that Congress should now address this question and pass legislation,

[00:42:48] Speaker 05:
in which Congress would pass a Voting Rights Act that was discriminatory.

[00:42:57] Speaker 05:
You would be in an awkward position in that situation.

[00:43:00] Speaker 05:
But then if the intervener were to sue, challenging it, would the intervener be entitled to attorney's fees?

[00:43:12] Speaker 05:
If they prevailed on the grounds that the new voting

[00:43:18] Speaker 05:
the 15th amendment.

[00:43:20] Speaker 01:
Your honor, our position is that in this kind of challenge, a pure constitutional challenge, what's going on is not enforcement of voting guarantees, as there would be in a section two case.

[00:43:35] Speaker 01:
Why?

[00:43:35] Speaker 05:
Why would you disagree with the intervener?

[00:43:38] Speaker 05:
They wouldn't be entitled to attorney's fees if they challenge that?

[00:43:41] Speaker 01:
We disagree with that, because in a case where it's just a matter of is the statute constitutional or not, nobody's enforcing any voting guarantees.

[00:43:51] Speaker 01:
There's no question of applying the laws in particular.

[00:43:53] Speaker 05:
The Congress passes a Voting Rights Act that preserves white hegemony throughout the country, and the ACLU challenges it as a blatant violation

[00:44:10] Speaker 05:
And they're not entitled to attorney's fees?

[00:44:12] Speaker 01:
Well, they certainly would be entitled to attorney's fees if the act is being applied to them and they're... No, no, yes, go ahead.

[00:44:19] Speaker 05:
And would they be entitled to attorney's fees under...

[00:44:22] Speaker 05:
the 1975 attorney speaks.

[00:44:26] Speaker 01:
They would be.

[00:44:27] Speaker 01:
So the answer is, yes, they'd be entitled to both.

[00:44:33] Speaker 01:
No, they're challenging it facially, as unconstitutional.

[00:44:43] Speaker 05:
Our position is no, but we don't think you need to get there because we think that what Congress meant by... One of the biggest arguments that Judge Bates used, as I said earlier, is that it's anomalous to conclude that a statute of Congress passed in what was 2005, 2006, can be challenged

[00:45:11] Speaker 05:
unless an attorney's fees should be awarded, because Congress would never have wanted someone to prevail to get attorney's fees challenging the legality of Congress's statute.

[00:45:23] Speaker 05:
That's your view.

[00:45:24] Speaker 05:
You made that argument in the brief, right?

[00:45:26] Speaker 01:
Right.

[00:45:26] Speaker 01:
And I think that's another thing that this court can look at.

[00:45:29] Speaker 05:
You know what the hole in that argument is, I think?

[00:45:32] Speaker 05:
You're talking about two different statutes, which was revealed in my conversation with him.

[00:45:39] Speaker 05:
You're talking about a 75 statute,

[00:45:42] Speaker 05:
that it provides attorney's fees.

[00:45:44] Speaker 05:
So we're looking at that statute as compared to what Congress did in 2000, was it 2006?

[00:45:50] Speaker 05:
So what is at stake here, and I think Judge Bates missed this,

[00:45:58] Speaker 05:
is what the 75 Congress intended.

[00:46:02] Speaker 01:
Right.

[00:46:03] Speaker 01:
And sitting in 1975, the idea that Congress was affirmatively trying to promote with attorney's fees this kind of constitutional challenges, it's inconsistent with the legislative history.

[00:46:13] Speaker 01:
It's also inconsistent with common sense.

[00:46:14] Speaker 01:
At every turn, when the Voting Rights Act was enacted in 1965, the constitutionality of Section 5 was challenged.

[00:46:25] Speaker 01:
It was challenged again when it was extended in 1970.

[00:46:29] Speaker 01:
There had been other constitutional challenges to the Voting Rights Act.

[00:46:32] Speaker 01:
So, sitting in 1975, Congress, there was no problem with, well, we need to give people, you know, we need to make sure that constitutionality of the Voting Rights Act is challenged.

[00:46:43] Speaker 05:
That's true, back in 1975, but the 75 Congress would set forth the attorney's fees couldn't contemplate

[00:46:54] Speaker 05:
that a congress 40 years later would

[00:47:02] Speaker 01:
Congress had every reason to expect that every time that, you know, these things would be challenged.

[00:47:16] Speaker 01:
And so there's no reason to think that Congress would have thought, well, we really need to make sure, you know, people have incentive to challenge the constitutionality of the Voting Rights Act, so we're going to incentivize that.

[00:47:26] Speaker 01:
take the unusual step and incentivize that with fees litigation.

[00:47:29] Speaker 01:
I would just make one other point, which is in Allen, the case that Shelby County is relying on heavily, which of course was before the fees provision was enacted, but referring to this language, the guarantees of the 15th Amendment and what it is naturally understood to mean, that Allen says

[00:47:50] Speaker 01:
The Voting Rights Act was drafted to make the guarantees of the 15th Amendment finally a reality for all citizens.

[00:47:57] Speaker 01:
That's not a statement that brings to mind Section 2 of the 15th Amendment and the appropriateness limitations found therein.

[00:48:06] Speaker 01:
So I submit that the natural reading of the language of 14E is that it

[00:48:15] Speaker 01:
is that it's trying to get at individual voting rights.

[00:48:22] Speaker 01:
And even if this Court disagrees with me on that, it should look at the Piggy Park-Christiansburg standard that Congress was legislating against the backdrop of and conclude that.

[00:48:32] Speaker 01:
Really, to get at what Piggy Park requires, to get at Congress's impact.

[00:48:37] Speaker 05:
No other question, Counsel, that you agree with the amendment.

[00:48:47] Speaker 05:
as well as minorities.

[00:48:50] Speaker 04:
I just have one more question because I just want to be sure I understand the government's position here.

[00:48:57] Speaker 04:
Suppose it was really clear in this case for whatever reason that this case was brought, that this was a case

[00:49:07] Speaker 04:
This was a case to enforce the voting guarantees of the 14th or 15th Amendment, either because of Section 2 of the 14th Amendment or because of their theory about appropriate legislation.

[00:49:18] Speaker 04:
Let's assume that's the case.

[00:49:21] Speaker 04:
Your position is that they still wouldn't be qualified under Piggy Park, right?

[00:49:25] Speaker 01:
That's right.

[00:49:26] Speaker 04:
And that's because they aren't enforcing the statute as written by Congress.

[00:49:30] Speaker 04:
Correct?

[00:49:30] Speaker 01:
Yes.

[00:49:31] Speaker 04:
And that's your position.

[00:49:32] Speaker 01:
And the one thing Park requires specifically is that the party be the chosen instrument of Congress to vindicate the policy that Congress considered the highest priority.

[00:49:42] Speaker 01:
And that's talking about the policy that it was considering when it was enacting a fees provision.

[00:49:46] Speaker 01:
So why did Congress enact a fees provision?

[00:49:49] Speaker 01:
What was it trying to accomplish with that?

[00:49:52] Speaker 01:
I submit that it was certainly not trying to accomplish incentivizing of constitutional challenges.

[00:49:58] Speaker 01:
What it was trying to accomplish was incentivizing individuals whose voting rights were violated, giving them the ability to enforce those rights.

[00:50:08] Speaker 04:
Okay.

[00:50:09] Speaker 04:
Thank you.

[00:50:11] Speaker 04:
We used, Mr. Ryan, I think we used, you would like two minutes?

[00:50:19] Speaker 06:
Your Honor, you raised, Judge Tatel, a question which is comparable to Ashforth v. Georgia, a case in which Georgia believed that its redistricting maximized the opportunity for minority participation in the legislature, and the federal government did not give it preclearance and challenged it.

[00:50:36] Speaker 06:
I just point out to you, in that case, when Georgia prevailed, the Justice Department settled with them and paid fees.

[00:50:44] Speaker 06:
So it recognized at that point that they had established

[00:50:47] Speaker 06:
a limitation of principle, which met your hypothetical.

[00:50:52] Speaker 06:
So I think at least that's one historic example that this wasn't taken so narrowly.

[00:50:57] Speaker 06:
And Judge Griffith on the Piggy Park point, which I think is important to you and I think important to the court,

[00:51:03] Speaker 06:
If you look back at the legislative history, the Congress kind of said, well, you know, we want to ensure that people are not deterred from asserting their rights, and therefore we're granting them post-aliesca.

[00:51:16] Speaker 06:
Because in aliesca, the court said, we can award rights to people who confer a public benefit.

[00:51:21] Speaker 06:
And we could have argued about that.

[00:51:22] Speaker 06:
The Supreme Court said, no, you can't.

[00:51:24] Speaker 06:
Congress responds and says, OK, then we'll provide it by statute specifically.

[00:51:28] Speaker 06:
So they do.

[00:51:30] Speaker 06:
And they say, well, you know, one good incentive is not to be too restrictive with discretion.

[00:51:35] Speaker 06:
It should be exercised only in special circumstances where someone has prevailed.

[00:51:40] Speaker 06:
No one argued special circumstances here.

[00:51:43] Speaker 06:
So it's the general standard that Congress chose.

[00:51:46] Speaker 06:
What about this litigation?

[00:51:48] Speaker 06:
Well, this litigation sounds alien to the Voting Rights Act.

[00:51:51] Speaker 06:
It was in fact founded jurisdictionally on the Voting Rights Act.

[00:51:55] Speaker 06:
because Section 14B, Congress made express provision for constitutional litigation, and the purpose was to resolve the question, what's the limit of appropriate?

[00:52:04] Speaker 06:
Have we gone too far or not?

[00:52:06] Speaker 06:
We don't want to stop.

[00:52:06] Speaker 03:
Congress also created a mechanism.

[00:52:09] Speaker 03:
It sunset the coverage formula each time.

[00:52:15] Speaker 03:
That was Congress's way of saying,

[00:52:18] Speaker 03:
You know, we recognize that this may be gone too far.

[00:52:20] Speaker 03:
We'll periodically revisit it.

[00:52:22] Speaker 03:
And they did each time they revisited it and kept it going.

[00:52:26] Speaker 03:
So Congress had in mind a way to address any problems that would arise with the coverage formula.

[00:52:33] Speaker 03:
They just didn't think there were any problems.

[00:52:34] Speaker 03:
So it seems to be a bit of a stretch to say, under the language of Piggy Park, that Congress, having created that mechanism to revisit the coverage formula periodically,

[00:52:45] Speaker 03:
also wanted to incentivize parties to challenge it in the courts.

[00:52:51] Speaker 03:
That seems inconsistent.

[00:52:53] Speaker 06:
The one way of Congress supervising the Voting Rights Act was reenactment periodic.

[00:53:00] Speaker 06:
Of course, they started to extend that to 25 years.

[00:53:02] Speaker 03:
But they did it.

[00:53:03] Speaker 03:
I mean, they looked at it, and they reenacted it.

[00:53:05] Speaker 03:
I understand.

[00:53:06] Speaker 06:
But that's one way.

[00:53:07] Speaker 06:
The other way was Congress recognized there was going to be a constitutional challenge.

[00:53:11] Speaker 06:
And it said, we're going to order that challenge.

[00:53:13] Speaker 06:
We're going to put it in the District of Columbia.

[00:53:15] Speaker 06:
Because as it was testified at the time, this will be a valuable thing.

[00:53:18] Speaker 06:
We ought to find out.

[00:53:20] Speaker 06:
not what we think, and not how we consider the record, but how the courts consider the record.

[00:53:25] Speaker 06:
So we're dealing with legislation that was expressly contemplated and is in fact authorized by the statute.

[00:53:33] Speaker 03:
Now the gravamen of the complaint is about what's

[00:53:35] Speaker 03:
It's hard to make that argument that after so many times of reauthorizing the coverage formula that they are sitting there waiting to find out what the courts have to say, whether the coverage formula is constitutional.

[00:53:48] Speaker 03:
Maybe in the first instance, very much so.

[00:53:51] Speaker 06:
But when you have the long crack record, it just seems too hard to... To be fair, in the first instance, they were more concerned with letter

[00:53:57] Speaker 06:
pre-clearance as such was authorized at all.

[00:54:01] Speaker 06:
But as it went on, it was clear people were challenging whether it should be applied here, whether it should be applied here, whether it had to be applied uniformly.

[00:54:08] Speaker 06:
Certainly by 2006, Congress was well aware there was going to be a challenge on that formula because it was antiquated and politically they decided they just didn't have the wherewithal to change it.

[00:54:17] Speaker 06:
But remember, this litigation not only set aside the formula as it exists, but it certainly indicated to the Congress, if you want to bring it back,

[00:54:26] Speaker 06:
here's the kind of thing you find.

[00:54:28] Speaker 06:
So it did a public service in that regard.

[00:54:30] Speaker 06:
It did what Congress wanted.

[00:54:31] Speaker 06:
It spelled out the boundaries of what's appropriate.

[00:54:35] Speaker 06:
So I think in that regard, this is the justification for public benefit coming from this litigation.

[00:54:41] Speaker 06:
And again, as you pointed out, the statutory language doesn't talk about purpose.

[00:54:45] Speaker 06:
It doesn't incorporate this concept individually.

[00:54:48] Speaker 06:
It could have written that.

[00:54:49] Speaker 06:
You could have written a statute that says where an individual seeks to

[00:54:53] Speaker 06:
attack discrimination under the Voting Rights Act or the amendments directly to be entitled to peace, but that's not what it says.

[00:55:00] Speaker 06:
It talks about a proceeding, an action of proceeding to do just that.

[00:55:04] Speaker 06:
This was the action of proceeding.

[00:55:06] Speaker 06:
We prevailed, and I think that there was no challenge to our argument that if we prevailed in that kind of case, then Piggy Park was the governing standard.

[00:55:16] Speaker 06:
Now, whether you could challenge it in some future case or not and say the discretion might be broader,

[00:55:21] Speaker 06:
as it is in the copyright area is a different question, but it wasn't preserved here.

[00:55:27] Speaker 04:
Okay.

[00:55:27] Speaker 04:
Thank you.

[00:55:28] Speaker 04:
Case submitted.