Shelby County, AL v. Holder, et al.

Justia.com Opinion Summary: Shelby County contended that when Congress reauthorized section 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c(a), in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. Applying the congruence and proportionality standard of review in Northwest Austin Municipal Utility District No. One v. Holder, the court affirmed the judgment of the district court.

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United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT Argued January 19, 2012 Decided May 18, 2012 No. 11-5256 SHELBY COUNTY, ALABAMA, APPELLANT v. ERIC H. HOLDER, JR., IN HIS OFFICIAL CAPACITY AS ATTORNEY GENERAL OF THE UNITED STATES, ET AL., APPELLEES Appeal from the United States District Court for the District of Columbia (No. 1:10-cv-00651) Bert W. Rein argued the cause for appellant. With him on the briefs were William S. Consovoy, Thomas R. McCarthy, and Brendan J. Morrissey. John C. Neiman Jr., Solicitor General, Office of the Attorney General for the State of Alabama, and Robert D. Tambling, Assistant Attorney General, were on the brief for amicus curiae State of Alabama in support of appellant. Thomas C. Horne, Attorney General, Office of the Attorney General for the State of Arizona, David R. Cole, Solicitor General, Michele L. Forney and James E. Barton II, Assistant Attorneys General, and Samuel S. Olens, Attorney 2 General, Office of the Attorney General of the State of Georgia, were on the brief for amici curiae States of Arizona and Georgia. Steven J. Lechner was on the brief as amicus curiae Mountain States Legal Foundation in support of appellant. Sarah E. Harrington, Attorney, U.S. Department of Justice, argued the cause for appellee. With her on the brief were Ronald C. Machen Jr., U.S. Attorney, and Diana K. Flynn and Linda F. Thome, Attorneys. Eric T. Schneiderman, Attorney General, Office of the Attorney General for the State of New York, Barbara D. Underwood, Solicitor General. Jim Hood, Attorney General, Office of the Attorney General for the State of Mississippi, and Kamala D. Harris, Attorney General, Office of the Attorney General for the State of California, were on the brief for amici curiae New York, et al., in support of appellees. John Payton, Debo P. Adegbile, Elise C. Boddie, Ryan P. Haygood, Dale E. Ho, Natasha M. Korgaonkar, Arthur B. Spitzer, Jon M. Greenbaum, and John M. Nonna were on the brief for intervenors-appellees Earl Cunningham, et al., in support of appellees. Deborah N. Archer and Aderson B. Francois were on the brief for amicus curiae The New York Law School Racial Justice Project in support of appellee. Elizabeth B. Wydra was on the brief for amicus curiae Constitutional Accountability Center in support of appellees. 3 Before: TATEL and GRIFFITH, Circuit Judges, and WILLIAMS, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge TATEL. Dissenting opinion filed by Senior Circuit Judge WILLIAMS. TATEL, Circuit Judge: In Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct. 2504 (2009), the Supreme Court raised serious questions about the continued constitutionality of section 5 of the Voting Rights Act of 1965. Section 5 prohibits certain âcovered jurisdictionsâ from making any change in their voting procedures without first demonstrating to either the Attorney General or a three-judge district court in Washington that the change âneither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color.â 42 U.S.C. § 1973c(a). The Supreme Court warned that the burdens imposed by section 5 may no longer be justified by current needs and that its geographic coverage may no longer sufficiently relate to the problem it targets. Although the Court had no occasion to resolve these questions, they are now squarely before us. Shelby County, Alabama, a covered jurisdiction, contends that when Congress reauthorized section 5 in 2006, it exceeded its enumerated powers. The district court disagreed and granted summary judgment for the Attorney General. For the reasons set forth in this opinion, we affirm. I. The Framers of our Constitution sought to construct a federal government powerful enough to function effectively yet limited enough to preserve the hard-earned liberty fought 4 for in the War of Independence. They feared not state government, but centralized national government, long the hallmark of Old World monarchies. As a result, â[t]he powers delegated by the . . . Constitution to the federal government, are few and defined,â while â[t]hose which are to remain in the State governments are numerous and indefinite.â The Federalist No. 45 (James Madison). Close to the people, state governments would protect their liberties. But the experience of the nascent Republic, divided by slavery, taught that states too could threaten individual liberty. So after the Civil War, the Reconstruction Amendments were added to the Constitution to limit state power. Adopted in 1865, the Thirteenth Amendment prohibited involuntary servitude. Adopted three years later, the Fourteenth Amendment prohibited any state from âdepriv[ing] any person of life, liberty, or property, without due process of lawâ or âdeny[ing] to any person within its jurisdiction the equal protection of the laws,â and granted Congress âpower to enforceâ its provisions âby appropriate legislation.â U.S. Const. amend. XIV. Finally, the Fifteenth Amendment declared that â[t]he right of citizens . . . to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitudeâ and vested Congress with âpower to enforce this article by appropriate legislation.â U.S. Const. amend. XV. Following Reconstruction, however, âthe blight of racial discrimination in voting . . . infected the electoral process in parts of our country for nearly a century.â South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). As early as 1890, âthe States of Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginiaâ began employing tests and devices âspecifically designed to prevent Negroes 5 from voting.â Id. at 310. Among the most notorious devices were poll taxes, literacy tests, grandfather clauses, and property qualifications. See Shelby Cnty. v. Holder, 811 F. Supp. 2d 424, 428 (D.D.C. 2011); see also Katzenbach, 383 U.S. at 310â11. Also widely employed, both immediately following Reconstruction and again in the mid-twentieth century, were âlaws designed to dilute black voting strength,â including laws that âgerrymandered election districts, instituted at-large elections, annexed or deannexed land . . . and required huge bonds of officeholders.â Shelby Cnty., 811 F. Supp. 2d at 429 (internal quotation marks omitted). The courts and Congress eventually responded. The Supreme Court struck down grandfather clauses, Guinn v. United States, 238 U.S. 347 (1915), and white primaries, Smith v. Allwright, 321 U.S. 649 (1944). Congress âenact[ed] civil rights legislation in 1957, 1960, and 1964, which sought to âfacilitat[e] case-by-case litigation against voting discrimination.â â Shelby Cnty., 811 F. Supp. 2d at 430 (alteration in original) (quoting Katzenbach, 383 U.S. at 313). But Congress soon determined that such measures were inadequate: case-by-case litigation, in addition to being expensive, was slowâslow to come to a result and slow to respond once a state switched from one discriminatory device to the nextâand thus had âdone little to cure the problem of voting discrimination.â Katzenbach, 383 U.S. at 313. Determined to ârid the country of racial discrimination in voting,â id. at 315, Congress passed the Voting Rights Act of 1965. Unlike prior legislation, the 1965 Act combined a permanent, case-by-case enforcement mechanism with a set of more stringent, temporary remedies designed to target 6 those areas of the country where racial discrimination in voting was concentrated. Section 2, the Actâs main permanent provision, forbids any âstandard, practice, or procedureâ that âresults in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.â 42 U.S.C. § 1973(a). Applicable nationwide, section 2 enables individuals to bring suit against any state or jurisdiction to challenge voting practices that have a discriminatory purpose or result. See Thornburg v. Gingles, 478 U.S. 30, 35 (1986). Reaching beyond case-by-case litigation and applying only in certain âcovered jurisdictions,â section 5âthe focus of this litigationââprescribes remedies . . . which go into effect without any need for prior adjudication.â Katzenbach, 383 U.S. at 327â28. Section 5 suspends âall changes in state election procedure until they [are] submitted to and approved by a three-judge Federal District Court in Washington, D.C., or the Attorney General.â Nw. Austin, 129 S. Ct. at 2509. A jurisdiction seeking to change its voting laws or procedures must either submit the change to the Attorney General or seek preclearance directly from the three-judge court. If it opts for the former and if the Attorney General lodges no objection within sixty days, the proposed law can take effect. 42 U.S.C. § 1973c(a). But if the Attorney General lodges an objection, the submitting jurisdiction may either request reconsideration, 28 C.F.R. § 51.45(a), or seek a de novo determination from the three-judge district court. 42 U.S.C. § 1973c(a). Either way, preclearance may be granted only if the jurisdiction demonstrates that the proposed change to its voting law neither âhas the purpose nor . . . the effect of denying or abridging the right to vote on account of race or color.â Id. Prior to section 5âs enactment, states could stay ahead of plaintiffs and courts â âby passing new discriminatory voting 7 laws as soon as the old ones had been struck down.â â Beer v. United States, 425 U.S. 130, 140 (1976) (quoting H.R. Rep. No. 94-196, at 57â58 (1975)). But section 5 âshift[ed] the advantage of time and inertia from the perpetrators of the evil to its victim.â Katzenbach, 383 U.S. at 328. It did so by placing âthe burden on covered jurisdictions to show their voting changes are nondiscriminatory before those changes can be put into effect.â Shelby Cnty., 811 F. Supp. 2d at 431. Section 5 thus âpre-empted the most powerful tools of black disenfranchisement,â Nw. Austin, 129 S. Ct. at 2509, resulting in âundeniableâ improvements in the protection of minority voting rights, id. at 2511. Section 4(b) contains a formula that, as originally enacted, applied section 5âs preclearance requirements to any state or political subdivision of a state that âmaintained a voting test or device as of November 1, 1964, and had less than 50% voter registration or turnout in the 1964 presidential election.â Shelby Cnty., 811 F. Supp. 2d at 432 (citing Voting Rights Act of 1965, Pub. L. No. 89-110, § 4(b), 79 Stat. 437, 438 (â1965 Actâ)). Congress chose these criteria carefully. It knew precisely which states it sought to cover and crafted the criteria to capture those jurisdictions. Id. (citing testimony before Congress in 2005â2006). Unsurprisingly, then, the jurisdictions originally covered in their entirety, Alabama, Georgia, Louisiana, Mississippi, South Carolina, and Virginia, âwere those southern states with the worst historical records of racial discrimination in voting.â Id. Because section 4(b)âs formula could be both over- and underinclusive, Congress incorporated two procedures for adjusting coverage over time. First, as it existed in 1965, section 4(a) allowed jurisdictions to earn exemption from coverage by obtaining from a three-judge district court a 8 declaratory judgment that in the previous five years (i.e., before they became subject to the Act) they had used no test or device âfor the purpose or with the effect of denying or abridging the right to vote on account of race or color.â 1965 Act § 4(a). This âbailoutâ provision, as subsequently amended, addresses potential overinclusiveness, allowing jurisdictions with clean records to terminate their section 5 preclearance obligations. Second, section 3(c) authorizes federal courts to require preclearance by any non-covered state or political subdivision found to have violated the Fourteenth or Fifteenth Amendments. 42 U.S.C. § 1973a(c). Specifically, courts presiding over voting discrimination suits may âretain jurisdiction for such period as [they] may deem appropriateâ and order that during that time no voting change take effect unless either approved by the court or unopposed by the Attorney General. Id. This judicial âbail-inâ provision addresses the formulaâs potential underinclusiveness. As originally enacted in 1965, section 5 was to remain in effect for five years. In South Carolina v. Katzenbach, the Supreme Court sustained the constitutionality of section 5, holding that its provisions âare a valid means for carrying out the commands of the Fifteenth Amendment.â 383 U.S. at 337. Congress subsequently renewed the temporary provisions, including sections 4(b) and 5, in 1970 (for five years), then in 1975 (for seven years), and again in 1982 (for twenty-five years). In each version, â[t]he coverage formula [in section 4(b)] remained the same, based on the use of voting-eligibility tests [or devices] and the rate of registration and turnout among all voters, but the pertinent dates for assessing these criteria moved from 1964 to include 1968 and eventually 1972.â Nw. Austin, 129 S. Ct. at 2510. In 1975 Congress made one significant change to section 4(b)âs scope: it amended the definition of âtest or deviceâ to include the 9 practice of providing only English-language voting materials in jurisdictions with significant non-English-speaking populations. Act of Aug. 6, 1975, Pub. L. No. 94-73, § 203, 89 Stat. 400, 401â02 (codified at 42 U.S.C. § 1973b(f)(3)). Although not altering the basic coverage formula, this change expanded section 4(b)âs scope to encompass jurisdictions with records of voting discrimination against âlanguage minorities.â See Briscoe v. Bell, 432 U.S. 404, 405 (1977). The Supreme Court sustained the constitutionality of each extension, respectively, in Georgia v. United States, 411 U.S. 526 (1973), City of Rome v. United States, 446 U.S. 156 (1980), and Lopez v. Monterey County, 525 U.S. 266 (1999). Significantly for the issue before us, the 1982 version of the Voting Rights Act made bailout substantially more permissive. Prior to 1982, bailout was extremely limited: no jurisdiction could bail out if it had used discriminatory voting tests or practices when it first became subject to section 5, even if it had since eliminated those practices. Shelby Cnty., 811 F. Supp. 2d at 434. By contrast, after 1982 the Act allowed bailout by any jurisdiction with a âcleanâ voting rights record over the previous ten years. Id. The 1982 reauthorization also permitted a greater number of jurisdictions to seek bailout. Previously, âonly covered states (such as Alabama) or separately-covered political subdivisions (such as individual North Carolina counties) were eligible to seek bailout.â Id. After 1982, political subdivisions within a covered state could bail out even if the state as a whole was ineligible. Id. Setting the stage for this litigation, Congress extended the Voting Rights Act for another twenty-five years in 2006. See Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 10 2006, Pub. L. No. 109-246, 120 Stat. 577 (â2006 Actâ). In doing so, it acted on the basis of a legislative record âover 15,000 pages in length, and includ[ing] statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.â Shelby Cnty., 811 F. Supp. 2d at 435 (internal quotation marks omitted). Congress also amended section 5 to overrule the Supreme Courtâs decisions in Georgia v. Ashcroft, 539 U.S. 461, 479â80 (2003) (which held that âany assessment of the retrogression of a minority groupâs effective exercise of the electoral franchise depends on an examination of all the relevant circumstancesâ and that âa court should not focus solely on the comparative ability of a minority group to elect a candidate of its choiceâ), and Reno v. Bossier Parish School Board, 528 U.S. 320, 328 (2000) (âBossier IIâ) (which held that âthe âpurposeâ prong of § 5 covers only retrogressive dilutionâ). See 2006 Act § 5 (codified at 42 U.S.C. § 1973c(b)â(d)). The 2006 Actâs constitutionality was immediately challenged by âa small utility districtâ subject to its provisions. See Nw. Austin, 129 S. Ct. at 2508. After finding the district ineligible for bailout, the three-judge district court concluded that the reauthorized Voting Rights Act was constitutional. Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221, 283 (D.D.C. 2008). On appeal, the Supreme Court identified two âserious . . . questionsâ about section 5âs continued constitutionality, namely, whether the âcurrent burdensâ it imposes are âjustified by current needs,â and whether its âdisparate geographic coverage is sufficiently related to the problem that it targets.â Nw. Austin, 129 S. Ct. at 2512â13. But invoking the constitutional avoidance doctrine, id. at 2508, 2513, the Court interpreted the statute to allow any covered jurisdiction, including the utility district bringing suit in that case, to seek 11 bailout, thus avoiding the need to resolve the âbig question,â id. at 2508: Did Congress exceed its constitutional authority when it reauthorized section 5? Now that question is squarely presented. II. Shelby County filed suit in the U.S. District Court for the District of Columbia, seeking both a declaratory judgment that sections 4(b) and 5 of the Voting Rights Act are facially unconstitutional and a permanent injunction prohibiting the Attorney General from enforcing them. Shelby Cnty., 811 F. Supp. 2d at 427. Unlike the utility district in Northwest Austin, Shelby County never sought bailout, and for good reason. Because the county had held several special elections under a law for which it failed to seek preclearance and because the Attorney General had recently objected to annexations and a redistricting plan proposed by a city within Shelby County, the County was clearly ineligible for bailout. See id. at 446 n.6. As the district courtâJudge John D. Batesârecognized, the âserious constitutional questionsâ raised in Northwest Austin could âno longer be avoided.â Id. at 427. Addressing these questions in a thorough opinion, the district court upheld the constitutionality of the challenged provisions and granted summary judgment for the Attorney General. After reviewing the extensive legislative record and the arguments made by Shelby County, the Attorney General, and a group of defendant-intervenors, the district court concluded that âSection 5 remains a âcongruent and proportional remedyâ to the 21st century problem of voting discrimination in covered jurisdictions.â Id. at 428. Responding to the Supreme Courtâs concerns in Northwest Austin, the district court found the record evidence of 12 contemporary discrimination in covered jurisdictions âplainly adequate to justify section 5âs strong remedial and preventative measures,â id. at 492 (internal quotation marks omitted), and to support Congressâs predictive judgment that failure to reauthorize section 5 â âwould leave minority citizens with the inadequate remedy of a Section 2 action,â â id. at 498 (quoting H.R. Rep. No. 109-478, at 57 (2006)). This evidence consisted of thousands of pages of testimony, reports, and data regarding racial disparities in voter registration, voter turnout, and electoral success; the nature and number of section 5 objections; judicial preclearance suits and section 5 enforcement actions; successful section 2 litigation; the use of âmore information requestsâ and federal election observers; racially polarized voting; and section 5âs deterrent effect. Id. at 465â66. As to section 4(b), the district court acknowledged that the legislative record âprimarily focused on the persistence of voting discrimination in covered jurisdictionsârather than on the comparative levels of voting discrimination in covered and non-covered jurisdictions.â Id. at 507. Nonetheless, the district court pointed to âseveral significant pieces of evidence suggesting that the 21st century problem of voting discrimination remains more prevalent in those jurisdictions that have historically been subject to the preclearance requirementââincluding the disproportionate number of successful section 2 suits in covered jurisdictions and the âcontinued prevalence of voting discrimination in covered jurisdictions notwithstanding the considerable deterrent effect of Section 5.â Id. at 506â07. Thus, although observing that Congressâs reauthorization âensured that Section 4(b) would continue to focus on those jurisdictions with the worst historical records of voting discrimination,â id. at 506, the district court found this continued focus justified by current 13 evidence that discrimination remained concentrated in those juridictions. See id. (explaining that Congress did not renew the coverage formula to punish past sins, but rather because it found âsubstantial evidence of contemporary voting discrimination by the very same jurisdictions that had histories of unconstitutional conductâ). Finally, the district court emphasized that Congress had based reauthorization not on âa perfunctory review of a few isolated examples of voting discrimination by covered jurisdictions,â but had â âapproached its task seriously and with great care.â â Id. at 496 (quoting Nw. Austin, 573 F. Supp. 2d at 265). Given this, the district court concluded that Congressâs predictive judgment about the continued need for section 5 in covered jurisdictions was due âsubstantial deference,â id. at 498 (internal quotation marks omitted), and therefore âdecline[d] to overturn Congressâs carefully considered judgment,â id. at 508. Our review is de novo. See McGrath v. Clinton, 666 F.3d 1377, 1379 (D.C. Cir. 2012) (âWe review the district courtâs decision to grant summary judgment de novo.â). On appeal, Shelby County reiterates its argument that, given the federalism costs section 5 imposes, the provision can be justified only by contemporary evidence of the kind of â âunremitting and ingenious defianceâ â that existed when the Voting Rights Act was originally passed in 1965. Appellantâs Br. 8 (quoting Katzenbach, 383 U.S. at 309). Insisting that the legislative record lacks âevidence of a systematic campaign of voting discrimination and gamesmanship by the covered jurisdictions,â Shelby County contends that section 5âs remedy is unconstitutional because it is no longer congruent and proportional to the problem it seeks to cure. Id. at 8â9; see also City of Boerne v. Flores, 521 U.S. 507, 520 (1997) (âThere must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted 14 to that end.â). In addition, Shelby County argues, section 4(b) contains an âobsoleteâ coverage formula that fails to identify the problem jurisdictions, and because the jurisdictions it covers are not uniquely problematic, the formula is no longer rational â âin both practice and theory.â â Appellantâs Br. 11â 12 (quoting Katzenbach, 383 U.S. at 330). III. Northwest Austin sets the course for our analysis, directing us to conduct two principal inquiries. First, emphasizing that section 5 âauthorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs,â the Court made clear that â[p]ast success alone . . . is not adequate justification to retain the preclearance requirements.â 129 S. Ct. at 2511. Conditions in the South, the Court pointed out, âhave unquestionably improvedâ: racial disparities in voter registration and turnout have diminished or disappeared, and âminority candidates hold office at unprecedented levels.â Id. Of course, â[i]t may be that these improvements are insufficient and that conditions continue to warrant preclearance under the Act.â Id. at 2511â12. But âthe Act imposes current burdens,â and we must determine whether those burdens are âjustified by current needs.â Id. at 2512. Second, the Act, through section 4(b)âs coverage formula, âdifferentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty.â Id. (internal quotation marks omitted). And while equal sovereignty â âdoes not bar . . . remedies for local evils,â â id. (omission in original) (quoting Katzenbach, 383 U.S. at 328â 29), the Court warned that section 4(b)âs coverage formula may âfail[] to account for current political conditionsââthat is, â[t]he evil that § 5 is meant to address may no longer be 15 concentrated in the jurisdictions singled out for preclearance.â Id. These concerns, the Court explained, âare underscored by the argumentâ that section 5 may require covered jurisdictions to adopt race-conscious measures that, if adopted by noncovered jurisdictions, could violate section 2 of the Act or the Fourteenth Amendment. Id. (citing Georgia v. Ashcroft, 539 U.S. at 491 (Kennedy, J., concurring) (â[C]onsiderations of race that would doom a redistricting plan under the Fourteenth Amendment or § 2 seem to be what save it under § 5.â)). To be sure, such â[d]istinctions can be justified in some cases.â Id. But given section 5âs serious federalism costs, Northwest Austin requires that we ask whether section 4(b)âs âdisparate geographic coverage is sufficiently related to the problem that it targets.â Id. Before addressing Northwest Austinâs two questions, we must determine the appropriate standard of review. As the Supreme Court noted, the standard applied to legislation enacted pursuant to Congressâs Fifteenth Amendment power remains unsettled. See id. at 2512â13 (noting, but declining to resolve the partiesâ dispute over the appropriate standard of review). Reflecting this uncertainty, Shelby County argues that the âcongruence and proportionalityâ standard for Fourteenth Amendment legislation applies, see City of Boerne, 521 U.S. at 520, whereas the Attorney General insists that Congress may use âany rational meansâ to enforce the Fifteenth Amendment, see Katzenbach, 383 U.S. at 324. Although the Supreme Court declined to resolve this issue in Northwest Austin, the questions the Court raisedâwhether section 5âs burdens are justified by current needs and whether its disparate geographic reach is sufficiently related to that problemâseem to us the very questions one would ask to determine whether section 5 is âcongruen[t] and proportional[] [to] the injury to be prevented,â City of Boerne, 16 521 U.S. at 520. We thus read Northwest Austin as sending a powerful signal that congruence and proportionality is the appropriate standard of review. In any event, if section 5 survives the arguably more rigorous âcongruent and proportionalâ standard, it would also survive Katzenbachâs ârationalityâ review. Of course, this does not mean that the Supreme Courtâs prior decisions upholding the Voting Rights Act are no longer relevant. Quite to the contrary, Katzenbach and City of Rome tell us a great deal about â[t]he evil that § 5 is meant to address,â Nw. Austin, 129 S. Ct. at 2512, as well as the types of evidence that are probative of âcurrent needs,â id. Moreover, City of Boerne relied quite heavily on Katzenbach for the proposition that section 5, as originally enacted and thrice extended, was a model of congruent and proportional legislation. See City of Boerne, 521 U.S. at 525â26, 530 (relying on Katzenbach to explain how the Court evaluates remedial legislation under the Fourteenth and Fifteenth Amendments); see also id. at 532â33 (describing characteristics of the Voting Rights Act, as analyzed by Katzenbach and City of Rome, that made it congruent and proportional). We can likewise seek guidance from the Courtâs Fourteenth Amendment decisions applying the congruent and proportional standard to other legislation. In those cases, the Court made clear that the record compiled by Congress must contain evidence of state âconduct transgressing the Fourteenth Amendmentâs substantive provisions,â Coleman v. Court of Appeals of Md., 132 S. Ct. 1327, 1333 (2012), and that invasions of state interests based on âabstract generalities,â id. at 1337, or âsupposition and conjecture,â id. at 1336, cannot be sustained. Once satisfied that Congress has 17 identified a pattern of constitutional violations, however, the Court has deferred to Congressâs judgment, even in the face of a rather sparse legislative record. In Nevada Department of Human Resources v. Hibbs, for example, the Court upheld the constitutionality of the family-care provision of the Family and Medical Leave Act, which allows eligible employees to take up to twelve weeks of unpaid leave, and âcreates a private right of action to seek both equitable relief and money damages against any employer (including a public agency).â 538 U.S. 721, 724 (2003) (internal quotation marks omitted). Although evidence of discriminatory leave policies by state governments was hardly extensive, see Tennessee v. Lane, 541 U.S. 509, 528â29 & n.17 (2004) (describing the limited evidence relied upon in Hibbs, âlittle of which concerned unconstitutional state conductâ), the Court deferred to Congressâs âreasonabl[e] conclu[sions],â Hibbs, 538 U.S. at 734, and held that the evidence was âweighty enough to justifyâ prophylactic legislation, id. at 735. Similarly, in Lane the Court considered whether Congress had authority under the Fourteenth Amendment to pass Title II of the Americans with Disabilities Act, which prohibits public entities, including states, from discriminating on the basis of disability in their services, programs, and activities. 541 U.S. at 513. Looking into the record and noting the long history of state discrimination against disabled individuals, the Court found it ânot difficult to perceive the harm that Title II is designed to address.â See id. at 524â25. It held, again with great deference to Congressâs take on the evidence, that the record, âincluding judicial findings of unconstitutional state action, and statistical, legislative, and anecdotal evidence of the widespread exclusion of persons with disabilities from the enjoyment of public services,â made âclear beyond peradventureâ that Title II was appropriate prophylactic legislation, id. at 529âand this despite the fact that the record 18 included only two reported decisions finding unconstitutional state action of the precise type at issue, see id. at 544 (Rehnquist, C.J., dissenting). By contrast, the Court has found that Congress exceeded its Fourteenth Amendment authority where the legislative record revealed a âvirtually complete absenceâ of evidence of unconstitutional state conduct. Id. at 521 (majority opinion) (citing Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 647â48 (1999)); see also City of Boerne, 521 U.S. at 530 (legislative record âlack[ed] examples of modern instancesâ of the targeted constitutional violations); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 89 (2000) (âCongress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation.â). We read this case law with two important qualifications. First, we deal here with racial discrimination in voting, one of the gravest evils that Congress can seek to redress. See Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886) (â[The right to vote] is regarded as a fundamental political right, because preservative of all rights.â); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 216 (1995) (âracial classifications [are] constitutionally suspect and subject to the most rigid scrutinyâ (citation omitted) (internal quotation marks omitted)). When Congress seeks to combat racial discrimination in votingâ protecting both the right to be free from discrimination based on race and the right to be free from discrimination in voting, two rights subject to heightened scrutinyâit acts at the apex of its power. See Hibbs, 538 U.S. at 736 (noting that it is âeasier for Congress to show a pattern of unconstitutional violationsâ when it enforces rights subject to heightened scrutiny); Lane, 541 U.S. at 561â63 (Scalia, J., dissenting) (âGiving [Congressâs enforcement powers] more expansive 19 scope with regard to measures directed against racial discrimination by the States accords to practices that are distinctively violative of the principal purpose of the [Reconstruction Amendments] a priority of attention that [the Supreme] Court envisioned from the beginning, and that has repeatedly been reflected in [the Courtâs] opinions.â). Expressly prohibited by the Fifteenth Amendment, racial discrimination in voting is uniquely harmful in several ways: it cannot be remedied by money damages and, as Congress found, lawsuits to enjoin discriminatory voting laws are costly, take years to resolve, and leave those elected under the challenged law with the benefit of incumbency. Second, although the federalism costs imposed by the statutes at issue in Hibbs and Lane (abrogating sovereign immunity to allow suits against states for money damages) are no doubt substantial, the federalism costs imposed by section 5 are a great deal more significant. To be sure, in most cases the preclearance process is âroutineâ and âefficient[],â resulting in prompt approval by the Attorney General and rarely if ever delaying elections. See Reauthorizing the Voting Rights Actâs Temporary Provisions: Policy Perspectives and Views from the Field: Hearing Before the Subcomm. on the Constitution, Civil Rights and Propery Rights of the S. Comm. on the Judiciary, 109th Cong. 312â13 (2006) (testimony of Donald M. Wright, North Carolina State Board of Elections) (stating that most preclearance submissions âtake only a few minutes to prepareâ and that the Justice Department cooperates with jurisdictions to ensure that âpreclearance issue[s] d[o] not delay an electionâ). But section 5 sweeps broadly, requiring preclearance of every voting change no matter how minor. Section 5 also places the burden on covered jurisdictions to demonstrate to the Attorney General or a three-judge district court here in Washington that the 20 proposed law is not discriminatory. Given these significant burdens, in order to determine whether section 5 remains congruent and proportional we are obligated to undertake a review of the record more searching than the Supreme Courtâs review in Hibbs and Lane. Although our examination of the record will be probing, we remain bound by fundamental principles of judicial restraint. Time and time again the Supreme Court has emphasized that Congressâs laws are entitled to a âpresumption of validity.â City of Boerne, 521 U.S. at 535. As the Court has explained, when Congress acts pursuant to its enforcement authority under the Reconstruction Amendments, its judgments about âwhat legislation is needed . . . are entitled to much deference.â Id. (internal quotation marks omitted). Even when applying intermediate scrutiny, the Court has accorded Congress deference âout of respect for its authority to exercise the legislative power,â and in recognition that Congress âis far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.â Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195, 196 (1997) (internal quotation marks omitted) (rejecting a First Amendment challenge to the âmust-carryâ provisions of the Cable Television Consumer Protection and Competition Act). And critically for our purposes, although Northwest Austin raises serious questions about section 5âs constitutionality, nothing in that opinion alters our duty to resolve those questions using traditional principles of deferential review. Indeed, the Court reiterated not only that âjudging the constitutionality of an Act of Congress is âthe gravest and most delicate duty that [a court] is called on to perform,â â Nw. Austin, 129 S. Ct. at 2513 (quoting Blodgett v. Holden, 275 U.S. 142, 147â48 (1927) (Holmes, J., concurring)), but also that â[t]he Fifteenth 21 Amendment empowers âCongress,â not the Court, to determine in the first instance what legislation is needed to enforce it,â id. A. Guided by these principles, we begin with Northwest Austinâs first question: Are the current burdens imposed by section 5 âjustified by current needsâ? 129 S. Ct. at 2512. The Supreme Court raised this question because, as it emphasized and as Shelby County argues, the conditions which led to the passage of the Voting Rights Act âhave unquestionably improved[,] . . . no doubt due in significant part to the Voting Rights Act itself.â Id. at 2511. Congress also recognized this progress when it reauthorized the Act, finding that âmany of the first generation barriers to minority voter registration and voter turnout that were in place prior to the [Voting Rights Act] have been eliminated.â H.R. Rep. No. 109-478, at 12. The dissentâs charts nicely display this progress. Racial disparities in voter registration and turnout have ânarrowed considerablyâ in covered jurisdictions and are now largely comparable to disparities nationwide. Id. at 12â17; see also Dissenting Op. at 12â13 figs.I & II. Increased minority voting, in turn, has âresulted in significant increases in the number of African-Americans serving in elected offices.â H.R. Rep. No. 109-478, at 18; see also Dissenting Op. at 15 fig.III. For example, in the six states fully covered by the 1965 Act, the number of African Americans serving in elected office increased from 345 to 3700 in the decades since 1965. H.R. Rep. No. 109-478, at 18. But Congress found that this progress did not tell the whole story. It documented âcontinued registration and turnout disparitiesâ in both Virginia and South Carolina. Id. at 25. Virginia, in particular, âremain[ed] an outlier,â S. Rep. 22 No. 109-295, at 11 (2006): although 71.6 percent of white, non-Hispanic voting age residents registered to vote in 2004, only 57.4 percent of black voting age residents registered, a 14.2-point difference. U.S. Census Bureau, Reported Voting and Registration of the Total Voting-Age Population, at tbl.4a, available at http://www.census.gov/hhes/www/ socdemo/voting/publications/p20/2004/tables.html (last visited May 9, 2012). Also, although the number of African Americans holding elected office had increased significantly, they continued to face barriers to election for statewide positions. Congress found that not one African American had yet been elected to statewide office in Mississippi, Louisiana, or South Carolina. In other covered states, â âoften it is only after blacks have been first appointed to a vacancy that they are able to win statewide office as incumbents.â â H.R. Rep. No. 109-478, at 33 (quoting Natâl Commân on the Voting Rights Act, Protecting Minority Voters: The Voting Rights Act at Work 1982â2005, at 38 (2006) (âNatâl Commân Reportâ)). Congress considered other types of evidence that, in its judgment, âshow[ed] that attempts to discriminate persist and evolve, such that Section 5 is still needed to protect minority voters in the future.â Id. at 21. It heard accounts of specific instances of racial discrimination in voting. It heard analysis and opinions by experts on all sides of the issue. It considered, among other things, six distinct categories of evidence: (1) Attorney General objections issued to block proposed voting changes that would, in the Attorney Generalâs judgment, have the purpose or effect of discriminating against minorities; (2) âmore information requestsâ issued when the Attorney General believes that the information submitted by a covered jurisdiction is insufficient to allow a preclearance determination; (3) successful lawsuits 23 brought under section 2 of the Act; (4) federal observers dispatched to monitor elections under section 8 of the Act; (5) successful section 5 enforcement actions filed against covered jurisdictions for failing to submit voting changes for preclearance, as well as requests for preclearance denied by the United States District Court for the District of Columbia; and (6) evidence that the mere existence of section 5 deters officials from even proposing discriminatory voting changes. Finally, Congress heard evidence that case-by-case section 2 litigation was inadequate to remedy the racial discrimination in voting that persisted in covered jurisdictions. Before delving into the legislative record ourselves, we consider two arguments raised by Shelby County that, if meritorious, would significantly affect how we evaluate that record. First, Shelby County argues that section 5 can be sustained only on the basis of current evidence of âa widespread pattern of electoral gamesmanship showing systematic resistance to the Fifteenth Amendment.â Appellantâs Br. 23. According to the County, the preclearance remedy may qualify as congruent and proportional only âwhen it addresses a coordinated campaign of discrimination intended to circumvent the remedial effects of direct enforcement of Fifteenth Amendment voting rights.â Id. at 7. We disagree. For one thing, how could we demand evidence of gamesmanship of the sort present at the time of Katzenbach given that section 5 preclearance makes such tactics virtually impossible? Equally important, Shelby Countyâs argument rests on a misreading of Katzenbach. Although the Court did describe the situation in 1965 as one of âunremitting and ingenious defiance of the Constitution,â Katzenbach, 383 U.S. at 309, nothing in Katzenbach suggests 24 that such gamesmanship was necessary to the Courtâs judgment that section 5 was constitutional. Rather, the critical factor was that âCongress had found that case-by-case litigation was inadequate to combat widespread and persistent discrimination in voting.â Id. at 328; see also id. at 313â15 (explaining why laws facilitating case-by-case litigation had âproved ineffectiveâ). In City of Rome, the Court, while recognizing that âundeniableâ progress had been made, sustained section 5âs constitutionality without ever mentioning gamesmanship of any kind, 446 U.S. at 181â82; it relied instead on racial disparities in registration, the low number of minority elected officials, and the number and nature of Attorney General objections, id. at 180â81. Reinforcing this interpretation of Katzenbach and City of Rome, the Supreme Court explained in City of Boerne that â[t]he [Voting Rights Actâs] new, unprecedented remedies were deemed necessary given the ineffectiveness of the existing voting rights laws, and the slow, costly character of case-by-case litigation,â 521 U.S. at 526 (citation omitted). The Court reiterated the point in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 373 (2001): âIn [enacting the Voting Rights] Act . . . Congress also determined that litigation had proved ineffective . . . .â This emphasis on the inadequacy of case-by-case litigation makes sense: if section 2 litigation is adequate to deal with the magnitude and extent of constitutional violations in covered jurisdictions, then Congress might have no justification for requiring states to preclear their voting changes. Put another way, what is needed to make section 5 congruent and proportional is a pattern of racial discrimination in voting so serious and widespread that caseby-case litigation is inadequate. Given this, the question before us is not whether the legislative record reflects the kind 25 of âingenious defianceâ that existed prior to 1965, but whether Congress has documented sufficiently widespread and persistent racial discrimination in voting in covered jurisdictions to justify its conclusion that section 2 litigation remains inadequate. If it has, then section 5âs âsubstantial federalism costsâ remain justified because preclearance is still needed to remedy continuing violations of the Fifteenth Amendment. Second, Shelby County urges us to disregard much of the evidence Congress considered because it involves âvote dilution, going to the weight of the vote once cast, not access to the ballot.â Appellantâs Br. 26. Specifically, the County faults Congress for relying on selective annexations, certain redistricting techniques, at-large elections, and other practices that do not prevent minorities from voting but instead âdilute minority voting strength,â 2006 Act § 2(b)(4)(A). According to the County, because the Supreme Court has ânever held that vote dilution violates the Fifteenth Amendment,â Bossier II, 528 U.S. at 334 n.3, we may not rely on such evidence to sustain section 5 as a valid exercise of Congressâs Fifteenth Amendment enforcement power. It is true that neither the Supreme Court nor this court has ever held that intentional vote dilution violates the Fifteenth Amendment. But the Fourteenth Amendment prohibits vote dilution intended âinvidiously to minimize or cancel out the voting potential of racial or ethnic minorities.â City of Mobile v. Bolden, 446 U.S. 55, 66 (1980); see also, e.g., Shaw v. Reno, 509 U.S. 630, 641 (1993). Although the Courtâs previous decisions upholding section 5 focused on Congressâs power to enforce the Fifteenth Amendment, the same âcongruent and proportionalâ standard, refined by the inquiries set forth in Northwest Austin, appears to apply 26 âirrespective of whether Section 5 is considered [Fifteenth Amendment] enforcement legislation, [Fourteenth Amendment] enforcement legislation, or a kind of hybrid legislation enacted pursuant to both amendments.â Shelby Cnty., 811 F. Supp. 2d at 462 (footnote omitted); see also City of Boerne, 521 U.S. at 518 (suggesting that Congressâs âpower to enforce the provisions of the Fifteenth Amendmentâ is âparallelâ to its power to enforce the Fourteenth Amendment). Indeed, when reauthorizing the Act in 2006, Congress expressly invoked its enforcement authority under both the Fourteenth and Fifteenth Amendments. See H.R. Rep. No. 109-478, at 90 (â[T]he Committee finds the authority for this legislation under amend. XIV, § 5 and amend. XV, § 2.â); id. at 53 & n.136 (stating that Congress is acting under its Fourteenth and Fifteenth Amendment powers in reauthorizing the Voting Rights Act). Accordingly, like Congress and the district court, we think it appropriate to consider evidence of unconstitutional vote dilution in evaluating section 5âs validity. See City of Rome, 446 U.S. at 181 (citing Congressâs finding that â[a]s registration and voting of minority citizens increase[], other measures may be resorted to which would dilute increasing minority voting strengthâ as evidence of the continued need for section 5 (internal quotation marks omitted)). Consideration of this evidence is especially important given that so-called âsecond generationâ tactics like intentional vote dilution are in fact decades-old forms of gamesmanship. That is, âas African Americans made progress in abolishing some of the devices whites had used to prevent them from voting,â both in the late nineteenth century and again in the 1950s and 1960s, â[o]fficials responded by adopting new measures to minimize the impact of black 27 reenfranchisement.â Voting Rights Act: Evidence of Continued Need: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 141â43 (2006) (âEvidence of Continued Needâ). These measuresââwell-knownâ tactics such as â âpack[ing]â â minorities into a single district, spreading minority voters thinly among several districts, annexing predominately white suburbs, and so onâwere prevalent âforms of vote dilutionâ then, and Congress determined that these persist today. Id. Specifically, Congress found that while âfirst generation barriersââflagrant attempts to deny access to the polls that were pervasive at the time of Katzenbachâhave diminished, âsecond generation barriersâ such as vote dilution have been âconstructed to prevent minority voters from fully participating in the electoral process.â 2006 Act § 2(b)(2) (congressional findings). Although such methods may be âmore subtle than the visible methods used in 1965,â Congress concluded that their âeffect and results are the same, namely a diminishing of the minority communityâs ability to fully participate in the electoral process and to elect their preferred candidates of choice.â H.R. Rep. No. 109-478, at 6. Having resolved these threshold issues, we return to the basic question: Does the legislative record contain sufficient probative evidence from which Congress could reasonably conclude that racial discrimination in voting in covered jurisdictions is so serious and pervasive that section 2 litigation remains an inadequate remedy? Reviewing the record ourselves and focusing on the evidence most probative of ongoing constitutional violations, we believe it does. To begin with, the record contains numerous âexamples of modern instancesâ of racial discrimination in voting, City of Boerne, 521 U.S. at 530. Just a few recent examples: 28 ⢠⢠⢠⢠⢠Kilmichael, Mississippiâs abrupt 2001 decision to cancel an election when âan unprecedented numberâ of African Americans ran for office, H.R. Rep. No. 109478, at 36â37 (internal quotation marks omitted); Webster County, Georgiaâs 1998 proposal to reduce the black population in three of the education boardâs five single-member districts after the school district elected a majority black school board for the first time, Voting Rights Act: Section 5 of the ActâHistory, Scope, and Purpose: Hearing Before Subcomm. on the Constitution of the House Judiciary Comm., 109th Cong. 830â31 (2006) (âHistory, Scope, and Purposeâ); Mississippiâs 1995 attempt to evade preclearance and revive a dual registration system âinitially enacted in 1892 to disenfranchise Black votersâ and previously struck down by a federal court, H.R. Rep. No. 109-478, at 39; Washington Parish, Louisianaâs 1993 attempt to reduce the impact of a majority-African American district by âimmediately creat[ing] a new at-large seat to ensure that no white incumbent would lose his seat,â id. at 38; Waller County, Texasâs 2004 attempt to reduce early voting at polling places near a historically black university and its threats to prosecute students for âillegal voting,â after two black students announced their intent to run for office, Evidence of Continued Need 185â86. The legislative record also contains examples of overt hostility to black voting power by those who control the electoral process. In Mississippi, for instance, state legislators opposed an early 1990s redistricting plan that would have 29 increased the number of black majority districts, referring to the plan publicly as the âblack planâ and privately as the ânigger plan,â Modern Enforcement of the Voting Rights Act: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 22 (2006) (âModern Enforcementâ) (internal quotation marks omitted); see also S. Rep. No. 109-295, at 14. In Georgia, the state House Reapportionment Committee Chairman âtold his colleagues on numerous occasions, âI donât want to draw nigger districts,â â H.R. Rep. No. 109-478, at 67 (quoting Busbee v. Smith, 549 F. Supp. 495, 501 (D.D.C. 1982)). The district court pointed to numerous additional examples of intentional discrimination in the legislative record. See Shelby Cnty., 811 F. Supp. 2d at 472â76, 477â79, 480â81, 481â85, 485â87; see also Nw. Austin, 573 F. Supp. 2d at 258â62, 289â 301. In addition to these examples of flagrant racial discrimination, several categories of evidence in the record support Congressâs conclusion that intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed. We explore each in turn. First, Congress documented hundreds of instances in which the Attorney General, acting pursuant to section 5, objected to proposed voting changes that he found would have a discriminatory purpose or effect. Significantly, Congress found that the absolute number of objections has not declined since the 1982 reauthorization: the Attorney General interposed at least 626 objections during the twentytwo years from 1982 to 2004 (an average of 28.5 each year), compared to 490 interposed during the seventeen years from 1965 to 1982 (an average of 28.8 each year). Evidence of Continued Need 172; see also S. Rep. No. 109-295, at 13â14 30 (finding 754 objections between 1982 and the first half of 2006). Formal objections were not the only way the Attorney General blocked potentially discriminatory changes under section 5. Congress found that between 1990 and 2005, âmore information requestsâ (MIRs) prompted covered jurisdictions to withdraw or modify over 800 proposed voting changes. Evidence of Continued Need 2553, 2565; H.R. Rep. No. 109478, at 40â41. Although MIRs take no position on the merits of a preclearance request, Congress had evidence indicating that the Attorney General sometimes uses them to âsend signals to a submitting jurisdiction about the assessment of their proposed voting changeâ and to âpromot[e] compliance by covered jurisdictions.â Evidence of Continued Need 2541. Congress found that because â[t]he actions taken by a jurisdiction [in response to an MIR] are often illustrative of [its] motives,â the high number of withdrawals and modifications made in response to MIRs constitutes additional evidence of â[e]fforts to discriminate over the past 25 years.â H.R. Rep. No. 109-478, at 40â41. Shelby County contends that section 5 objections and MIRs, however numerous, âdo[] not signal intentional voting discriminationâ because they represent only the Attorney Generalâs opinion and need not be based on discriminatory intent. Appellantâs Br. 30â31; see also id. at 32. Underlying this argument is a fundamental principle with which we agree: to sustain section 5, the record must contain âevidence of a pattern of constitutional violations,â Hibbs, 538 U.S. at 729, and voting changes violate the constitution only if motivated by discriminatory animus, Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 481 (1997) (âBossier Iâ). Although not all objections rest on an affirmative finding of intentional 31 discrimination, the record contains examples of many that do. See Nw. Austin, 573 F. Supp. 2d at 289â301 (appendix providing examples of objections based on discriminatory intent). Between 1980 and 2004, the Attorney General issued at least 423 objections based in whole or in part on discriminatory intent. Voting Rights Act: Section 5â Preclearance Standards: Hearing Before the Subcomm. on the Constitution of the H. Comm. on the Judiciary, 109th Cong. 180â81 (2005) (âPreclearance Standardsâ). Moreover, in the 1990s, before the Supreme Court limited the Attorney Generalâs ability to object based on discriminatory but nonretrogressive intent, see Bossier II, 528 U.S. 320 (limiting the scope of section 5âs purpose prong in a decision overturned by the 2006 Act), âthe purpose prong of Section 5 had become the dominant legal basis for objections,â Preclearance Standards 177, with seventy-four percent of objections based in whole or in part on discriminatory intent, id. at 136. Although it is true that objections represent âonly one sideâs opinion,â Appellantâs Br. 30, Congress is entitled to rely upon the Attorney Generalâs considered judgment âwhen it prescribes civil remedies . . . under [section] 2 of the Fifteenth Amendment.â Katzenbach, 383 U.S. at 330 (explaining that âCongress obviously may avail itself of information from any probative source,â including evidence âadduced by the Justice Departmentâ). In fact, in City of Rome the Supreme Court considered objections to be probative evidence of unconstitutional voting discrimination. See 446 U.S. at 181. Shelby County also points out that the percentage of proposed voting changes blocked by Attorney General objections has steadily declinedâfrom a height of 4.06 percent (1968â1972) to 0.44 percent (1978â1982) to 0.17 percent (1993â1997) and to 0.05 percent (1998â2002). An 32 Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 219 (2006) (âIntroduction to the Expiring Provisionsâ). But the most dramatic decline in the objection rateâwhich, as the district court observed, âhas always been low,â Shelby Cnty., 811 F. Supp. 2d at 470âoccurred in the 1970s, before the Supreme Court upheld the Act for a third time in City of Rome. See Introduction to the Expiring Provisions 219. Also, the average number of objections per year has not declined, suggesting that the level of discrimination has remained constant as the number of proposed voting changes, many likely quite minor, has increased. See H.R. Rep. No. 109-478, at 22 (showing increase in the annual number of voting changes submitted for preclearance, from 300â400 per year in the early 1970s to 4000â5000 per year in the 1990s and 2000s). As the district court pointed out, there may be âmany plausible explanations for the recent decline in objection rates.â See Shelby Cnty., 811 F. Supp. 2d at 471. Even in the six years from 2000 to 2006, after objection rates had dropped to their lowest, Attorney General objections affected some 660,000 minority voters. The Continuing Need for Section 5 Pre-Clearance: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 58 (2006) (âContinuing Needâ). Ultimately, Congress believed that the absolute number of objections represented the better indicator of the extent of discrimination in covered jurisdictions. This judgmentâ whether to accord greater weight to absolute numbers or to objection ratesâis precisely the kind that a legislature is âfar better equippedâ than a court to evaluate, Turner Broad., 520 U.S. at 195 (internal quotation marks omitted). As for MIRs, we agree with Shelby County that they are less probative of discrimination than objections. An MIR does 33 not represent a judgment on the merits, and submitting jurisdictions might have many reasons for modifying or withdrawing a proposed change in response to one. But the record contains evidence from which Congress could âreasonabl[y] infer[],â id. (internal quotation marks omitted), that at least some withdrawals or modifications reflect the submitting jurisdictionâs acknowledgement that the proposed change was discriminatory. See Evidence of Continued Need 178 (stating that a jurisdictionâs decision to withdraw a proposed changes in response to an MIR âis frequently a