Shelby County, Alabama v. Eric Holder, Jr.

Filing

OPINION [1570822] filed (Pages: 26) for the Court by Judge Griffith, CONCURRING OPINION (Pages: 6) by Judge Tatel, OPINION CONCURRING IN THE JUDGMENT (Pages: 3) by Judge Silberman. [14-5138]

USCA Case #14-5138

Document #1570822

Filed: 09/01/2015

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 10, 2015

Decided September 1, 2015
No. 14-5138

SHELBY COUNTY, ALABAMA,
APPELLANT
v.
LORETTA E. LYNCH, IN HER 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 Brendan J. Morrissey and J. Michael
Connolly. William S. Consovoy and Thomas R. McCarthy
entered appearances.
Dale Ho argued the cause for intervenor-appellees. With
him on the brief were Jon M. Greenbaum, Sherrilyn Ifill,
Janai S. Nelson, Christina A. Swarns, Ryan P. Haygood,
Natasha M. Korgaonkar, Leah C. Aden, and Deuel Ross.
Moffatt L. McDonald, Arthur B. Spitzer, and John M. Nonna
entered appearances.

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Nathaniel S. Pollock, Attorney, U.S. Department of
Justice, argued the cause for appellees. With him on the brief
was Mark L. Gross, Attorney.
Before: TATEL and GRIFFITH, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GRIFFITH.
Concurring opinion filed by Circuit Judge TATEL.
Opinion concurring in the judgment filed by Senior
Circuit Judge SILBERMAN.
GRIFFITH, Circuit Judge:
Shelby County, Alabama, prevailed in a challenge to the
constitutionality of section 4 of the Voting Rights Act of 1965
(VRA) and now seeks attorneys’ fees from the Government
under the Act’s fee-shifting provision. The district court
found that Shelby County was not entitled to receive fees
because its victory did not advance any of the goals Congress
meant to promote by making fees available. We agree.
I
The historical and legal background to this dispute has
been set out several times over the history of this case. See
Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2619-21 (2013);
Shelby Cnty., Ala. v. Holder, 679 F.3d 848, 853-58 (D.C. Cir.
2012), rev’d, 133 S. Ct. 2612; Shelby Cnty., Ala. v. Holder, 43
F. Supp. 3d 47, 50-52 (D.D.C. 2014); Shelby Cnty., Ala. v.
Holder, 811 F. Supp. 2d 424, 428-41 (D.D.C. 2011), aff’d,
679 F.3d 848 (D.C. Cir. 2012), rev’d, 133 S. Ct. 2612 (2013).

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We assume familiarity with those discussions and will cover
only the topics relevant to this fee dispute.
A
In the aftermath of the Civil War, the Nation ratified the
Thirteenth, Fourteenth, and Fifteenth Amendments to the
Constitution in an effort to stamp out the race-based forms of
legal oppression that the states had imposed throughout the
first century of the Republic. These amendments worked a
profound change by sweeping away the most appalling forms
of legal subjugation that had defined the pre-Civil War era.
Black Americans now held the sovereign franchise and were
entitled to equal treatment under the law. But racial prejudice
is not only insidious, it is resilient. The serpent of statesponsored racism remained in the garden and “the blight of
racial discrimination” simply switched its focus to a new
battleground and “infected the electoral process” that black
citizens had only begun to enter. South Carolina v.
Katzenbach, 383 U.S. 301, 308 (1966). Almost as soon as
Reconstruction ended, a number of states adopted a variety of
devices to suppress the newly established franchise of black
citizens. Id. at 310. Literacy tests, grandfather clauses, poll
taxes, and property qualifications prevented black Americans
from voting at all. Id. at 310-11. And cunning district design
and other tactics almost completely diluted the political power
of black citizens. See Shaw v. Reno, 509 U.S. 630, 640
(1993).
It was not until the 1950s that Congress began to take
action to secure the promise of equal citizenship extended
after the Civil War; among other things, Congress passed
three statutes authorizing individual suits to protect voting
rights. Katzenbach, 383 U.S. at 313. But case-by-case
litigation proved too slow, so Congress enacted a

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further-reaching solution to “rid the country of racial
discrimination in voting,” id. at 315: the Voting Rights Act of
1965. The VRA contained two principal provisions. The first,
section 2, created a permanent, nationwide replacement for
earlier civil rights statutes and authorized individual suits
against any state or local jurisdiction that adopted a voting
practice that had a discriminatory purpose or result. See
Thornburg v. Gingles, 478 U.S. 30, 35 (1986). The second,
section 5, was even more dramatic: It imposed on “covered
jurisdictions” the requirement of obtaining “preclearance” for
“all changes in state election procedure” from a three-judge
federal district court in Washington, D.C., or from the
Attorney General before they could take effect. Nw. Austin
Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 198, 203
(2009). The scope of section 5 was set by a formula in section
4 of the Act that covered any state or political subdivision that
met certain telltale criteria of discriminatory voting practices
as of November 1, 1964. See Shelby County, 679 F.3d at 855.
The scope of this intrusion onto state affairs, Congress found,
was justified by the severity and intractability of the problem
posed by racial discrimination in voting. Under the older caseby-case approach to litigating voting abuses, progress had
been “painfully slow,” in part “because of the intransigence of
[s]tate and local officials and repeated delays in the judicial
process,” but also because “even after apparent defeat
resisters [sought] new ways and means of discriminating.”
H.R. Rep. No. 89-439, at 9-10 (1965). “Barring one
contrivance too often . . . caused no change in result, only
methods.” Id. at 10. In the face of this record, Congress
concluded that there was “little basis for supposing” that
without legislative action “the [s]tates and subdivisions
affected will themselves remedy the present situation . . . .” S.
Rep. No. 89-162, at 19 (1965). “Thus, to keep minorities from
continuing to be victimized by [s]tates and political
subdivisions’ actions, Congress sought, through [sections 4

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and 5] to ‘shift the benefit of time and inertia from the
perpetrators of evil to the victim.’” H.R. Rep. No. 109-478, at
8 (2006) (quoting Katzenbach, 383 U.S. at 328).
“The historic accomplishments of the Voting Rights Act
are undeniable.” Northwest Austin, 557 U.S. at 201. “The
Act . . . proved immensely successful at redressing racial
discrimination and integrating the voting process.” Shelby
County, 133 S. Ct. at 2626. The change wrought by section 5
in particular can hardly be overstated. As Congress put it
when reauthorizing the VRA in 2006, section 5 was a “vital
prophylactic tool[], protecting minority voters from devices
and schemes that continue[d] to be employed by covered
[s]tates and jurisdictions.” H.R. Rep. No. 109-478, at 21; see
also id. at 24 (“[T]he existence of [s]ection 5 deterred covered
jurisdictions from even attempting to enact discriminatory
voting changes.”); S. Rep. No. 94-295, at 19 (1975) (“[I]t is
largely [s]ection 5 which has contributed to the gains thus far
achieved in minority political participation. Moreover, it is
[s]ection 5 which serves to insure that this progress shall not
be destroyed through new procedures and techniques.”).
The coverage formula in section 4 and the preclearance
regime in section 5 of the VRA were both originally subject
to five-year sunset clauses. Northwest Austin, 557 U.S. at 199.
When their scheduled expiration drew near in 1970, Congress
renewed both provisions and once again set an expiration date
for five years later. The House supported the reauthorization
by a vote of 272 to 132, the Senate by a margin of 64 to 12. J.
Morgan Kousser, The Strange, Ironic Career of Section 5 of
the Voting Rights Act, 1965-2007, 86 TEX. L. REV. 667, 687
(2008). When the next deadline approached in 1975, Congress
reauthorized both provisions yet again with a seven-year
sunset clause, this time by a vote of 346 to 56 in the House
and 77 to 12 in the Senate. Id. at 705-06. In 1982, with the

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seven-year window coming to an end, Congress reauthorized
both provisions a third time, but added a twenty-five-year
sunset clause. The House voted for reauthorization 389 to 24
and the Senate 85 to 8. Id. at 707. Finally, in 2006, Congress
again reauthorized both provisions for another twenty-five
years. In the House, 390 members supported reauthorization,
with 33 opposed. Id. In the Senate, the vote was 98 to 0 in
favor of reauthorization. Id. When he signed the
reauthorization into law, President George W. Bush
remarked: “The Voting Rights Act . . . broke the
segregationist lock on the ballot box . . . . Today, we renew a
bill that helped bring a community on the margins into the life
of American democracy.” Press Release, Office of the Press
Secretary, The White House, President Bush Signs Voting
Rights Act Reauthorization and Amendments Act of 2006
(July 27, 2006), 2006 WL 2076688, at *1-2. Because of this
series of reauthorizations, neither section 4 nor section 5 ever
expired. Congress made some changes to the provisions along
the way, twice altering the basic coverage formula in section
4 so that it would include even more jurisdictions. Shelby
County, 133 S. Ct. at 2620.
B
Shelby County, Alabama, was covered by the section 5
preclearance regime under the formula set out in section 4 of
the VRA and challenged the constitutionality of both in a suit
filed in district court in the District of Columbia.
After losing in the district court and before us, Shelby
County ultimately prevailed when the Supreme Court ruled
the coverage formula unconstitutional. Shelby County, 133 S.
Ct. at 2631. The Court explained that “‘the Framers of the
Constitution [also] intended the [s]tates to keep for
themselves, as provided in the Tenth Amendment, the power

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to regulate elections.’” Id. at 2623 (quoting Gregory v.
Ashcroft, 501 U.S. 452, 461-62 (1991)). Moreover, “[n]ot only
do [s]tates retain sovereignty under the Constitution, there is
also a ‘fundamental principle of equal sovereignty’ among the
[s]tates.” Id. (quoting Northwest Austin, 557 U.S. at 203). The
Court held that the VRA constituted a departure from those
principles by infringing on the sovereignty of the states to
design their own electoral process and burdening only some
states while leaving others unaffected. Id. at 2623-24.
Congress could only impose burdens that departed so
significantly from constitutional norms if the burdens were
justified under “current conditions.” Id. at 2627. But, the
Court explained, the coverage formula had never evolved to
match the Nation’s social and political changes. Congress had
“ignore[d] these developments, keeping the focus on decadesold data relevant to decades-old problems, rather than current
data reflecting current needs.” Id. at 2629. Congress could not,
the Court explained, impair the equal dignity of the states and
infringe on their sovereignty simply by relying on the
existence of a problem in the past. Id. Because the coverage
formula did not adequately target contemporary conditions,
the Court struck it down. Id. at 2631.
On remand to the district court, Shelby County filed a
motion for attorneys’ fees, seeking $2 million in fees and
$10,000 in costs. The 1975 amendments to the VRA had
introduced a fee-shifting provision at section 14(e) of the Act,
which provides:
In any action or proceeding to enforce the voting
guarantees of the fourteenth or fifteenth amendment,
the court, in its discretion, may allow the prevailing
party, other than the United States, a reasonable
[attorneys’] fee, reasonable expert fees, and other
reasonable litigation expenses as part of the costs.

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52 U.S.C. § 10310(e). 1 Shelby County insisted that it had
prevailed in an “action or proceeding to enforce the voting
guarantees” of the Fourteenth and Fifteenth Amendments
(which, for ease of reference, we shall term the
Reconstruction Amendments) and so should receive fees
under section 14(e). The Government opposed. The district
court sided with the Government, concluding that Shelby
County was not entitled to fees because, far from helping
ensure compliance with the VRA, its lawsuit had explicitly
opposed Congress’s enforcement mechanism by trying—and
succeeding—to have the coverage formula declared
unconstitutional.
Shelby County timely appealed. We have jurisdiction over
a final order of the district court under 28 U.S.C. § 1291. As
the question in this case is whether the district court correctly
applied the proper legal standard to determine whether Shelby
County should receive fees, we review the decision de novo.
See Conservation Force v. Salazar, 699 F.3d 538, 542 (D.C.
Cir. 2012).
II

1

The Voting Rights Act was originally codified in Title 42 of
the United States Code. Section 14(e) was first codified as 42
U.S.C. § 1973l(e). On September 1, 2014, the Office of the Law
Revision Counsel recodified the VRA and other provisions related
to voting and elections into a new Title 52. See Editorial
Reclassification, Office of the Law Revision Counsel,
http://uscode.house.gov/editorialreclassification/t52/index.html (last
visited Sept. 1, 2015). We will cite to the current version of the
Code.

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We agree with the district court that Shelby County is not
entitled to fees.
A
The rules governing this dispute are straightforward. Feeshifting provisions set out the criteria a court must use to
determine whether a party is even eligible for fees. In addition
to those statutory criteria, the Supreme Court has also created
an additional requirement: A party can only receive fees if it
also shows that it is entitled to them, meaning that its victory
in court helped advance the rationales that led Congress to
create fee-shifting provisions in the first place. Though the
entitlement requirement does not appear in the text of any feeshifting provision, the Supreme Court has enforced it on a
number of occasions and both this court and Congress have
accepted that a prevailing party must show entitlement to
receive a fee award. See Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 418 (1978) (“The terms of [the feeshifting provision in Title VII] provide no indication whatever
of the circumstances under which [a prevailing party] should
be entitled to attorney’s fees.” (emphasis added)).
The Court has also explained that the primary rationale for
such fee-shifting provisions—and the only rationale on which
Shelby County relies to justify its entitlement to fees here—is
encouraging private parties to bring civil rights lawsuits by
protecting them from the costs of litigation. In no
circumstances is a fee award a prize. Nor is it a bonus form of
compensation to a litigant whose position the court finds
sympathetic. It is an inducement to private parties to engage in
favored activity. A party is entitled to fees only when it shows
that its success in litigation advanced the goals Congress
intended the relevant fee-shifting provision to promote. When
a party’s success did not advance those goals, it is not entitled
to fees.

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The Court first explained this standard in Newman v.
Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). In Piggie
Park, a district court had refused to award fees to parties who
unmistakably prevailed in a suit brought under Title II of the
Civil Rights Act of 1964. The Court found that refusal an
error. The prevailing parties were entitled to fees and so the
district court was required to award them. The Court
explained that Congress meant for fee-shifting provisions in
civil rights statutes to encourage private parties to bring their
own civil rights litigation. Congress was well aware that “the
Nation would have to rely in part upon private litigation as a
means of securing broad compliance” with Title II, given the
obvious impossibility of the federal Government identifying
and prosecuting every violation. Id. at 401. Indeed, the Court
continued, a private party bringing a civil rights suit “does so
not for himself alone but also as a private attorney general,
vindicating a policy that Congress considered of the highest
priority.” Id. at 402 (internal quotation marks omitted). Yet
without a provision enabling prevailing parties to recover their
fees, “successful plaintiffs” would be “routinely forced to bear
their own attorneys’ fees,” meaning that “few aggrieved
parties would be in a position to advance the public interest”
by bringing civil rights litigation. Id. This obviously posed a
problem, given congressional awareness that private litigation
was an indispensable element of any successful enforcement
program. See, e.g., Allen v. State Bd. of Elections, 393 U.S.
544, 556 (1969) (“The achievement of the Act’s laudable goal
could be severely hampered . . . if each citizen were required
to depend solely on litigation instituted at the discretion of the
Attorney General.”). Congress solved this problem with feeshifting provisions. In other words, Congress enacted feeshifting provisions to encourage victims of discrimination to
invest the resources needed to litigate civil rights violations
and to distribute the cost of successful enforcement among

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lawbreakers. Because the prevailing parties in Piggie Park
had acted as “the chosen instrument of Congress,”
Christiansburg Garment, 434 U.S. at 418, by helping to
“secur[e] broad compliance” with Title II, Piggie Park, 390
U.S. at 401, they were entitled to fees.
Decades ago, we held that the Piggie Park standard also
governs claims for attorneys’ fees under the VRA. See
Donnell v. United States, 682 F.2d 240, 245 (D.C. Cir. 1982)
(“‘Congress depends heavily upon private citizens to enforce
the fundamental rights involved [in the Voting Rights Act].
[Fee] awards are a necessary means of enabling private
citizens to vindicate these Federal rights.’” (quoting S. Rep.
No. 94-295, at 40 (1975))). Shelby County insists that it is
entitled to fees under Piggie Park. We disagree. Shelby
County is not entitled to fees because its challenge to the
constitutionality of the coverage formula did not help
“secur[e] broad compliance with” the VRA. Piggie Park, 390
U.S. at 401.
As a general matter, a plaintiff who prevails in a lawsuit in
connection with a civil rights statute typically will have
helped enforce that statute exactly as Congress hoped and so
will usually be entitled to fees under Piggie Park. See Piggie
Park, 390 U.S. at 402 (“[O]ne who succeeds in obtaining an
injunction under [Title II] should ordinarily recover an
attorney’s fee unless special circumstances would render such
an award unjust.”). But the Court has made very clear that
success in a lawsuit alone does not resolve the separate
question of whether the successful party is entitled to fees. See
Christiansburg Garment, 434 U.S. at 418 (explaining that
merely prevailing in an action under Title VII “provide[s] no
indication whatever of the circumstances under which [the
prevailing party] should be entitled to attorney’s fees.”
(emphasis added)). Instead, entitlement turns on whether the

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prevailing party’s success advanced the purposes Congress
meant to promote by making fees available—in particular,
under the Piggie Park standard, whether the prevailing party
helped “secur[e] broad compliance” with the civil rights
statute in question. Piggie Park, 390 U.S. at 401.
For example, in Christiansburg Garment, an employer
was accused of wrongful discrimination in violation of Title
VII of the Civil Rights Act of 1964. 434 U.S. at 414. The
defendant employer prevailed in the subsequent litigation,
proving that it had not discriminated unlawfully. Having
prevailed in a Title VII suit, the defendant was thus eligible
for fees under the text of the statute’s fee-shifting provision.
The defendant insisted that it was also entitled to fees under
Piggie Park for the same reason: It had won in court and so
should receive fees. The Court rejected this argument. The
Piggie Park standard entitles parties to receive fees for which
they may be eligible only when they shoulder the burden of
acting as “the chosen instrument of Congress” and “vindicate
‘a policy that Congress considered of the highest priority’” by
enforcing compliance with a statute. Id. at 418 (quoting Piggie
Park, 390 U.S. at 402). The defendant employer in
Christiansburg Garment did nothing more than prove it had
not engaged in the alleged misconduct. Therefore, even
though the defendant prevailed and was eligible for fees, it
was not entitled to them under the Piggie Park standard.
The Court came to effectively the same conclusion in a
different context in Independent Federation of Flight
Attendants v. Zipes, 491 U.S. 754 (1989). In Zipes, an
intervenor union opposed the settlement of a Title VII class
action by a class of employees against their employer, arguing
that the collective bargaining agreement should preclude the
employer from agreeing to the settlement. After the
employees won judicial approval for the settlement of their

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class action, they argued that they were entitled to have the
intervenor pay their fees. Just as in Christiansburg Garment,
the Court found that the plaintiffs were not entitled to fees,
even though they had prevailed, because Congress did not
mean to use fee-shifting provisions as a general reward for
victory. Id. at 761-64. Instead, fee-shifting provisions are
designed to further the “central purpose” of civil rights
statutes—“vindicating the national policy against wrongful
discrimination by encouraging victims to make the
wrongdoers pay at law.” Id. at 761. The plaintiffs in Zipes had
not helped enforce compliance with Title VII by fighting with
the intervenor union over which of the employer’s legal
obligations would take precedence. Therefore they were not
entitled to fees from the intervenor under the Piggie Park
standard.
In both Christiansburg Garment and Zipes, the Court also
explained that Congress intended fee-shifting provisions in
civil rights statutes to require parties who took “frivolous” or
“unreasonable” positions to pay the fees of their successful
opponents. Christiansburg Garment, 434 U.S. at 421; Zipes,
491 U.S. at 761. In both cases, the Court relied on this
secondary rationale to craft a separate standard for fee awards
to a party that successfully defeats such vexatious arguments.
But in neither case could the prevailing parties rely on the
Piggie Park standard because, though each party had won an
action brought under a civil rights statute, neither had helped
ensure compliance with the civil rights laws. 2
B
2

In both Christiansburg Garment and Zipes, the Court went on
to conclude that the prevailing plaintiffs were not entitled to fees
under the alternative frivolous litigation standard.

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1
Section 14(e) of the VRA permits district courts to award
fees to a party who prevailed in an “action or proceeding to
enforce the voting guarantees of the fourteenth or fifteenth
amendment.” 52 U.S.C. § 10310(e). To show that it is eligible
for fees under the statute, Shelby County must demonstrate
that it prevailed in an action to enforce the voting guarantees
of the Reconstruction Amendments. The Government
concedes that Shelby County is a “prevailing party,” but
argues that it is nonetheless not eligible for fees because its
lawsuit did not enforce the “voting guarantees” of the
Reconstruction Amendments. As it turns out, this is a
difficult question. The Government submits that the only
“voting guarantees” secured by those amendments are
individual voting rights and that Shelby County’s lawsuit was
aimed instead at vindicating the structural rights of states and
other political jurisdictions. Shelby County insists to the
contrary that the Reconstruction Amendments “reflect
guarantees to individuals and states alike: to individuals, to be
free from discrimination; and to states, to be free from
unwarranted regulation.” To settle this dispute we would need
to determine what voting rights the Reconstruction
Amendments actually guarantee.
However, Shelby County could not win fees even if it
were correct about the contours of the Reconstruction
Amendments. Section 14(e) serves only to identify those
eligible for fees. As we have explained, the prevailing party
must also show that it is entitled to fees. See Christiansburg
Garment, 434 U.S. at 418 (“The terms of [the fee-shifting
provision in Title VII] provide no indication whatever of the
circumstances under which [a prevailing party] should be
entitled to attorney’s fees.” (emphasis added)); cf. Nationwide

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Bldg. Maint., Inc. v. Sampson, 559 F.2d 704, 710 (D.C. Cir.
1977) (explaining that a prevailing party’s “eligibility for an
award of attorney fees does not mean that it is necessarily
entitled to such an award” (emphasis added)).
As we will explain below, Shelby County is not entitled to
attorneys’ fees because its lawsuit did not advance any of the
purposes that Congress meant to promote by making fees
available. Therefore we do not need to determine whether
Shelby County or the Government is correct about what
“voting guarantees” are secured by the Reconstruction
Amendments. Resolving that question is immaterial to the
outcome of this case. And because we need not answer that
constitutional question, we will not do so. See, e.g., Elk Grove
Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11 (2004) (advising
courts “to guard jealously and exercise rarely our power to
make constitutional pronouncements”); PDK Labs. Inc. v.
U.S. Drug Enforcement Agency, 362 F.3d 786, 799 (D.C. Cir.
2004) (Roberts, J., concurring in part and concurring in the
judgment) (“[T]he cardinal principle of judicial restraint—if it
is not necessary to decide more, it is necessary not to decide
more—counsels us to go no further.”).
2
We agree with the district court that Shelby County is not
entitled to fees under Piggie Park. Shelby County’s argument
boils down to the proposition that Congress introduced the
fee-shifting provision into the VRA in 1975 with the express
goal of inducing a private party to bring a lawsuit to neuter
the Act’s central tool. But that makes no sense. As we know
from numerous statements by the Supreme Court, Congress
enacted fee-shifting provisions in civil rights statutes to
“secur[e] broad compliance” with those statutes, not to
immobilize them. Piggie Park, 390 U.S at 401. Nor did

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Congress need to enlist private suits to challenge the
constitutionality of the coverage formula in the way that it
needed to rely on private parties to pursue individual
enforcement litigation. See id. (“[T]he Nation would have to
rely in part upon private litigation as a means of securing
broad compliance with the law.”); see also Allen, 393 U.S. at
556 (“The achievement of the Act’s laudable goal could be
severely hampered . . . if each citizen were required to depend
solely on litigation instituted at the discretion of the Attorney
General.”). To the contrary, Congress carefully preserved the
power to invalidate the coverage formula by repeatedly
including a sunset provision that would ensure the formula’s
expiration at some point in the future absent new
authorization. Because of these successive sunset clauses,
invalidating provisions of the Act did not even require both
houses of Congress and the President to agree. Either house of
the legislature could have refused to pass reauthorizing
legislation, or the President could have refused to sign it, and
thereby invalidated the coverage formula or forced alteration
to the provision by insisting on revisions before agreeing to
reauthorization legislation.
In other words, Shelby County’s lawsuit neither advanced
Congress’s purpose nor performed some service Congress
needed help to accomplish. It defies common sense and
ignores the structure and history of the Act to think otherwise.
Therefore we conclude that Shelby County is not entitled to
fees under the Piggie Park standard.
Shelby County tries to justify its entitlement to fees by
relying on a number of counterarguments. None persuade us.
Most importantly, Shelby County points to section 14(b) of
the Act, which provides that “[n]o court other than the District
Court for the District of Columbia shall have jurisdiction to
issue any declaratory judgment . . . or any restraining order or

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temporary or permanent injunction against the execution or
enforcement of any provision” of the VRA. 52 U.S.C.
§ 10310(b). Shelby County argues that section 14(b) created a
new cause of action authorizing constitutional challenges to
the VRA. Therefore, the argument goes, Congress must have
meant to encourage constitutional challenges. If not, it would
have had no reason to establish a cause of action allowing
private parties to bring such challenges. And if so, Shelby
County insists that its success in striking down section 4
advanced Congress’s purposes after all. On this peg Shelby
County has hung its hopes.
But it is by no means clear that section 14(b) creates a
new cause of action. The more natural reading is that the
provision simply limits jurisdiction over constitutional
challenges to the VRA to the District Court for the District of
Columbia. The available evidence supports this view. To
begin with, Congress had no need to create a new cause of
action. The grants of jurisdiction in 28 U.S.C. § 1331 and in
the Declaratory Judgment Act, 28 U.S.C. § 2201, provide
adequate authorization for any attack on the VRA’s
constitutionality. Because parties already had all the
authorization they needed to mount lawsuits arguing that the
Act was not constitutional, Congress had no need to create a
new cause of action for such suits. We also note that Attorney
General Katzenbach’s testimony during the Senate hearings
on the VRA strongly suggests that section 14(b) is a venue
provision. 3 During the Senate hearings, General Katzenbach
3

Attorney General Katzenbach was one of the principal
drafters of the VRA. See Dougherty Cnty., Ga., Bd. of Ed. v. White,
439 U.S. 32, 37 (1978). The Court has often relied on his testimony
to Congress regarding the Act to help illuminate the statute’s terms.
See, e.g., Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 376

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was asked the purpose of section 14(b). He explained that it
would channel all significant VRA litigation, enforcement
suits and constitutional challenges alike, into one court, and
prevent multiple parallel constitutional challenges unfolding
in courts throughout the country. To Enforce the 15th
Amendment to the Constitution of the United States: Hearing
on S.1564 Before the S. Comm. on the Judiciary, 89th Cong.
at 144 (1965) (statement of Nicholas Katzenbach, Attorney
General of the United States) (“[T]he [preclearance]
determinations are to be made in the three-judge court in the
District of Columbia . . . . And it seems to us that if the
integrity of that practice were to be preserved, then you had to
have a corresponding provision here, otherwise you are going
to have the act tested in a variety of different courts. So it
seemed to us that the important thing was to get this act
tested, to get it tested in one court, and not to interfere with
the jurisdiction of that court, and provide an appeal to the
Supreme Court.” (emphasis added)). General Katzenbach said
nothing about encouraging or authorizing constitutional
challenges.
The Supreme Court seems to have put this issue to rest in
Allen v. State Board of Elections, 393 U.S. 544 (1969). In
Allen, the Court held that private citizens can sue for
declaratory judgment that a jurisdiction must obtain
preclearance for any change in voting practices. The Court
also held that citizens could file such actions anywhere in the
country, not only in the District of Columbia. In reaching this
conclusion the Court explained that section 14(b) imposed a
“restriction” on lawsuits authorized by some other cause of
(2000); McCain v. Lybrand, 465 U.S. 236, 247 (1984); United
States v. Bd. of Comm’rs of Sheffield, Ala., 435 U.S. 110, 128 n.15,
142-46 (1978); Allen, 393 U.S. at 567.

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action; it never suggested that the provision authorized or
created a cause of action for suits. Id. at 560 (emphasis
added). The Court also noted that section 14(b) presented a
“question involving the jurisdiction of the district courts,” not
involving the right of parties to bring lawsuits. Id. at 557
(emphasis added). The discussion in Allen strongly indicates
that section 14(b) is only a venue provision. And a number of
other Supreme Court cases that mention section 14(b) in
passing also uniformly refer to it as a venue provision, not as
a cause of action. See Shaw v. Reno, 509 U.S. 630, 637 (1993)
(noting that section 14(b) “vests the District Court for the
District of Columbia with exclusive jurisdiction to issue
injunctions against the execution of the Act”); Hathorn v.
Lovorn, 457 U.S. 255, 267 (1982) (noting that section 14(b)
raised a “jurisdictional” issue); Katzenbach v. Morgan, 384
U.S. 641, 645 (1966) (noting that, “[p]ursuant to [section]
14(b),” parties challenging the VRA’s constitutionality had
“commenced [their] proceeding in the District Court for the
District of Columbia”). 4
Shelby County points to a single sentence in Allen, in
which the Court referred to section 14(b) as one of the “Act’s
enforcement provisions” and said that a suit of the kind
identified in section 14(b) “would involve an attack on the
4

The Fifth and Ninth Circuits have also referred to section
14(b) solely as a venue provision. See Brown v. City of Shreveport,
158 F.3d 583, *1 (5th Cir. 1998) (per curiam) (unpublished) (citing
section 14(b) to explain that “[t]he district court for the District of
Columbia has exclusive jurisdiction over actions against federal
officers or employees challenging the enforcement of the Voting
Rights Act”); Reich v. Larson, 695 F.2d 1147, 1149 (9th Cir. 1983)
(holding that, under section 14(b), constitutional challenges to the
VRA “can only be brought in the District of Columbia district
court”).

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constitutionality of the Act itself.” 393 U.S. at 558. We do not
understand why Shelby County thinks this remark helps its
case. Given that section 14(b) requires any attack on the
constitutionality of a VRA provision to be filed in federal
court in the District of Columbia, all such cases necessarily
come under the heading of a “section 14(b) injunctive action,”
irrespective of whether that section also serves to create a
cause of action. The Court’s remark in Allen therefore proves
nothing either way. 5 And as we have just said, the rest of the
Court’s discussion of section 14(b) in Allen suggests much
more strongly that the section is a jurisdictional venue
provision, not a cause of action.
In any event, even if Shelby County were right that
section 14(b) creates a cause of action—a dubious proposition
given the evidence—the County still would not be entitled to
fees under the Piggie Park standard. Piggie Park does not ask
whether Congress intended to authorize Shelby County’s
challenge. The only question under Piggie Park is whether
Congress intended to encourage constitutional challenges to
the VRA as a way of “securing broad compliance” with the
statute, Piggie Park, 390 U.S. at 401, and thus made
attorneys’ fees available to promote such challenges. Shelby
County has not given us any reason to believe that Congress
5

Shelby County also insists that the Supreme Court understood
section 14(b) to create a cause of action when it mentioned in
Katzenbach v. Morgan that “[p]ursuant to [section] 14(b),” the
parties challenging the VRA’s constitutionality in that case
had “commenced [the] proceeding in the District Court for the
District of Columbia.” 384 U.S. at 645. Shelby County’s reliance
on Katzenbach is even more mystifying than its reliance on Allen.
As we have already said, this remark apparently indicates that the
Court in Katzenbach perceived section 14(b) as no more than a
venue provision.

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did so. Shelby County’s lawsuit did not facilitate enforcement
of the VRA; it made enforcing the VRA’s preclearance
regime impossible. And as we have already explained,
Congress did not need to rely on private challenges to the
Act’s constitutionality. The fact that Congress may have
created a cause of action permitting such a suit does nothing
to persuade us, in the face of these other considerations, that
Congress also intended to use fees to encourage suits that
sought to strike down its own carefully crafted enforcement
program. Therefore Shelby County’s insistence that section
14(b) creates a cause of action is irrelevant.
Shelby County tries to bolster its argument by explaining
all the reasons why Congress might have regarded
constitutional challenges to the VRA as socially beneficial.
But as we have already said, the Piggie Park standard does
not determine fee entitlement based on whether Congress
would applaud or condemn an individual litigant. Instead,
entitlement under Piggie Park turns on whether Congress
intended to use fees to encourage the prevailing party’s
litigation as part of a program for ensuring compliance with
the Act. Though Shelby County may have vindicated other
values, invalidating one of the VRA’s central provisions did
not promote compliance with the Act.
Shelby County’s other arguments are no more persuasive.
For example, Shelby County insists we must find it entitled to
fees because winning this lawsuit enforced the voting
guarantees of the Reconstruction Amendments. This
argument thoroughly misses the point. Whether Shelby
County defended the rights secured in the Reconstruction
Amendments is relevant to whether the County is eligible for
fees, not whether it is entitled to them. We do not decide
whether Shelby County is right about the contours of those
Amendments because we do not need to do so. Shelby County

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did not help secure compliance with the VRA by convincing
the Court to strike down the VRA’s signature statutory
device. Therefore Shelby County is not entitled to fees under
Piggie Park.
Shelby County also points out that “nothing in the
legislative history suggests that Congress was disavowing
promotion of other types of litigation authorized under the
statute . . . .” Perhaps, but the legislative history does make
clear that Congress intended for courts to award fees under
the VRA, pursuant to the Piggie Park standard, when
prevailing parties helped secure compliance with the statute.
Most notably, the Senate Report explains that Congress was
adopting section 14(e) because the Nation “depends heavily
on private citizens to enforce” the Act. S. Rep. No. 94-295, at
40 (1975). Shelby County cannot plausibly argue that
Congress “depend[ed] heavily on private citizens” to bring
constitutional challenges to the coverage formula, especially
because the sunset provision empowered even one house of
the legislature to invalidate section 4 by refusing to support
reauthorization.
Shelby County insists that if it is not entitled to fees, the
incentives to bring VRA actions would be distorted. Other
jurisdictions seeking to invalidate provisions of the VRA on
constitutional grounds in the future would have to bear the
costs of litigating those challenges, while facing the prospect,
if they lost, of fee liability to private parties that intervened on
the Government’s behalf. The distorted incentives of which
Shelby County warns seem at best hypothetical. Shelby
County has not identified any case in which an intervenordefendant has obtained fees from a plaintiff jurisdiction for
helping the Government defend the VRA’s constitutionality,
nor have we found such a case ourselves. Thus Shelby
County’s fear that future unsuccessful challengers would face

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the prospect of paying the fees of intervenor-defendants is
mere speculation. Moreover, Shelby County does not seem to
believe that these distorted incentives would actually
materialize. In its reply brief Shelby County maintained that it
would not have been liable for fees as to the intervenordefendants in this case had Shelby County lost. But more to
the point, even if we accepted Shelby County’s
prognostication and overlooked the internal contradictions of
its argument, this issue is not relevant to our decision here.
We need not decide whether our legal conclusion would
actually create unequal litigation incentives or weigh the
undesirability of that consequence as a matter of policy. Such
considerations are the province of Congress, not the courts.
Shelby County also argues that finding it not entitled to
fees would merely constitute punishment because we dislike
the results of Shelby County’s success even though
“unsympathetic litigants” routinely win fees when they
prevail under civil rights statutes. Appellant’s Br. 33-34. As
an initial matter, we reject Shelby County’s premise. Our
decision in no way rests on any assessment of the social value
of Shelby County’s suit. Nor do we find Shelby County not
entitled to fees based on the assumption that it brought this
suit as an “opponent of individual voting rights.” Id. at 43.
What is more, Shelby County misapprehends the cases on
which this argument relies. The “unsympathetic” litigants
Shelby County identifies won fee awards when they helped to
enforce the statute in question, irrespective of whether the
legal theory or practical effect of that suit was universally
appealing. Some observers may be surprised, puzzled, or even
upset when, pursuant to a fee-shifting provision, a court
awards fees to a Caucasian man in a VRA suit, see Maloney v.
City of Marietta, 822 F.2d 1023, 1026 (11th Cir. 1987), or a
large corporation in a § 1983 suit, see Sable Commc’ns of

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Cal. Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 193 (9th Cir.
1989), or even wealthy plaintiffs who sued a state
government, see Lavin v. Husted, 764 F.3d 646, 650-51 (6th
Cir. 2014). But when prevailing parties—no matter who they
are—help enforce a civil rights statute, they are entitled to
fees. Shelby County’s problem here is not that this lawsuit
may have upset some observers. We find Shelby County not
entitled because its lawsuit did not enforce compliance with
the VRA and because Congress did not intend to use fees to
encourage the invalidation of the Act’s provisions.
In the same vein, Shelby County argues that we should be
guided here by the analysis that persuaded the court to grant
fees in Lawrence v. Bowsher, 931 F.2d 1579 (D.C. Cir. 1991).
In that case, the district court dismissed a former federal
employee’s claim that he had been unlawfully discharged
from his job, finding that he had not first exhausted the
administrative remedies required under Title VII. Id. at 1580.
The plaintiff successfully argued to us that Title VII did not
apply to his class of federal employees and so he was not
subject to an exhaustion requirement. Id. As a result, other
federal employees who belonged to the same category as the
plaintiff were then excluded from the scope of Title VII and
no longer benefitted from its protections. Id. After prevailing,
the plaintiff sought attorneys’ fees under Title VII. Id. The
district court refused to grant fees, concluding that a plaintiff
whose lawsuit “was positively harmful to the civil rights of
others” should not receive a fee award under a civil rights
statute. Id. (internal quotation marks omitted). We disagreed,
holding that “[a] district court may not deny fees to a
prevailing plaintiff simply because his litigating position,
although a correct interpretation of the law, does not comport
with the court’s vision of a position that would, in a broad
sense, protect civil rights.” Id. (internal quotation marks
omitted). Shelby County submits that this case is exactly

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analogous to Lawrence v. Bowsher: We should not deny fees
simply because some observers find the invalidation of the
coverage formula undesirable as a matter of policy. We
disagree with Shelby County’s reading of Lawrence v.
Bowsher. We think that case helps illustrate exactly how
Shelby County’s suit differs from those in which prevailing
parties are entitled to fees. The plaintiff there contributed to
enforcement of Title VII by defining the category of
individuals that Congress intended to protect, ensuring that
the actions Congress meant to prohibit—and no other
actions—would be prosecuted. That is precisely the kind of
private enforcement action Congress meant the fee-shifting
provision to encourage. Not so here. Shelby County defeated
Congress’s plans for enforcement of the VRA by invalidating
the coverage formula and immobilizing section 5. Of course,
as we have learned, Congress’s plans violated the
Constitution. But Shelby County’s suit, unlike the suit in
Lawrence v. Bowsher, did not contribute to enforcement of
the VRA. For that reason Shelby County is not entitled to
fees.
Finally, Shelby County argues that the approach we have
taken to understanding section 14(e) is in error. Shelby
County accepts that the Supreme Court has several times, in
Piggie Park, Christiansburg Garment, and Zipes, discussed
and relied on the purposes Congress intended to advance
through fee awards. And Shelby County admits that in those
cases the Court explained that prevailing parties are entitled to
fees when their lawsuits advanced one or another purpose that
Congress planned to advance by enacting the fee-shifting
provision. Shelby County even acknowledges that we have
adopted the Piggie Park standard to govern fee entitlement
under section 14(e). See Donnell, 682 F.2d at 245. Yet Shelby
County insists nonetheless that neither we nor the Court has
ever taken the additional step of determining the specific kind

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of plaintiff, argument, or motivation that Congress had
intended to reward with fees. But we have not based our
approach on such considerations. Rather, we have applied the
Piggie Park standard as directed by the Court and as urged by
Shelby County. Under that standard, we have considered
whether the outcome of Shelby County’s suit—the
invalidation of the coverage formula of the VRA—was the
kind of outcome that Congress thought would enhance
enforcement of the VRA and made fees available to promote.
We think it was not. Therefore Shelby County is not entitled
to fees.
C
Even though Shelby County has based its argument for
fees entirely on Piggie Park, the district court considered
whether Shelby County might also be entitled to fees under
the Christiansburg Garment standard, which would allow a
fee award only if the Government’s defense of the coverage
formula’s constitutionality was frivolous or without
foundation. See Shelby County, 43 F. Supp. 3d at 68-71. But
since Shelby County has never maintained that it could even
theoretically obtain fees under that standard, we do not
believe we should resolve whether Christiansburg Garment
should sometimes apply in cases like this one. It is enough to
resolve this fee dispute by holding that Shelby County is not
entitled to fees under the only standard it has urged us to
apply.
III
For the foregoing reasons, we affirm the district court’s
denial of Shelby County’s application for attorneys’ fees.

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TATEL, Circuit Judge, concurring: Although I agree with
Judge Griffith that Shelby County is not entitled to recover
attorneys’ fees, I find nothing at all “difficult” about the
question whether the County is even eligible for fees under
section 14(e) of the Voting Rights Act. See Op. at 14.
Resolving this case on that threshold issue, moreover, would
not require us “to decide more . . . [than] necessary,” id. at 15
(internal quotation marks omitted)—or, for that matter, any
new question of law.
Recall that Shelby County is eligible for fees only if its
lawsuit—an action to invalidate the VRA’s preclearance
regime—qualifies as an “action or proceeding to enforce the
voting guarantees of the fourteenth or fifteenth amendment.”
52 U.S.C. § 10310(e). As filed and briefed, the County’s suit
does not meet this standard. Neither in its complaint nor in
any brief filed in the district court, this court, or the Supreme
Court did Shelby County even hint that its suit would protect
any voting right guaranteed by the Fourteenth or Fifteenth
Amendment. Instead, as Judge Bates recognized in rejecting
the County’s request for fees, Shelby County expressly and
repeatedly stated that it sought to enforce the Tenth
Amendment by “vindicat[ing] federalism interests and the
‘fundamental principle of equal sovereignty’ among the
states.” Shelby County, Alabama v. Holder, 43 F. Supp. 3d 47,
57 (D.D.C. 2014) (quoting Compl. ¶ 43); see also Br. for
Shelby County at 23, Shelby County, Alabama v. Holder, 133
S. Ct. 2612 (2013) (contending that VRA preclearance
provisions “encroach[ed] on Tenth Amendment rights”).
Indeed, in its cert petition, Shelby County framed the relevant
question as whether Congress’s reauthorization of Section 5
of the Voting Rights Act “exceeded its authority under the
Fifteenth Amendment and thus violated the Tenth
Amendment and Article IV of the United States
Constitution,” and it was on this issue that the County
ultimately prevailed. See Shelby County, 133 S. Ct. at 2623,
2631 (invalidating VRA’s preclearance coverage formula

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under Tenth Amendment). But now seeking to qualify for fees
under section 14(e), the County has changed its tune, claiming
that its suit in fact sought to enforce the Fourteenth and
Fifteenth Amendments’ “voting guarantees,” 52 U.S.C.
§ 10310(e), by vindicating what it calls those Amendments’
“guarantee of local voting autonomy,” Appellant’s Reply Br.
3. This claim is meritless.
Anyone wishing to discover what “voting guarantees” the
Fourteenth and Fifteenth Amendments protect must begin
with the Amendments’ text. Section One of the Fifteenth
Amendment provides that the “right of citizens of the United
States 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 servitude.” Section One of the Fourteenth
Amendment declares, among other things, that “[n]o State
shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”
Obviously, neither of these provisions includes any
guarantee of state autonomy over voting. By its plain terms,
the Fifteenth Amendment enshrines only one “voting
guarantee,” i.e., the “right of citizens of the United States to
vote” free from discrimination based on “race, color, or
previous condition of servitude.” Furthermore, and contrary to
Shelby County’s claim that the Amendment protects “state
autonomy over voting,” Appellant’s Reply Br. 14, the
Amendment’s prohibition against discrimination is expressly
directed at the states. And although the Fourteenth
Amendment says nothing about “voting guarantees”—indeed,
as adopted, the Amendment did not even protect the right to
vote—the Supreme Court has subsequently interpreted the
Amendment’s Equal Protection Clause as “guarantee[ing] the
opportunity for equal participation by all voters.” Reynolds v.
Sims, 377 U.S. 533, 566 (1964). Like the Fifteenth

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Amendment, moreover, it secures that right against the states.
The two Amendments thus “guarantee” not state autonomy,
but rather the right of citizens to vote, and they expressly
guarantee that right against state interference.
Shelby County, however, claims to have found a
“concomitant guarantee[]” of local voting autonomy lurking
in the two Amendments’ enforcement provisions. Appellant’s
Br. 14. That Congress may enforce the Amendments only by
“appropriate” legislation, the County insists, means that the
enforcement provisions guarantee “the constitutional right of
sovereign States . . . to regulate state and local elections as
they see fit.” Id. at 43. But this claim finds no support in the
constitutional text. Section Two of the Fifteenth Amendment
provides that “[t]he Congress shall have power to enforce this
article by appropriate legislation.” Using virtually identical
language, Section Five of the Fourteenth Amendment
provides that “[t]he Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.” By their
plain text, neither clause “guarantees” any right, voting or
otherwise. Rather, they give Congress power to enforce the
“articles,” i.e., equal protection of the laws (Fourteenth
Amendment) and the right of citizens to vote free from
discrimination based on race (Fifteenth Amendment).
Shelby County cites nothing to support its argument that
the two enforcement clauses somehow also protect state
autonomy, and for good reason. Added to the Constitution in
the wake of this nation’s bloody civil war to “take away all
possibility of oppression by law because of race or color,” Ex
parte Virginia, 100 U.S. 339, 345 (1880), the Amendments
were intended to limit state autonomy, not protect it. Owing
largely to their enforcement provisions, see id., they
“establish[ed] . . . the federal government as the main
protector of citizens’ rights,” granting “the national state the

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authority to intervene in local affairs to protect the basic rights
of all American citizens,” Eric Foner, The Supreme Court and
the History of Reconstruction—and Vice Versa, 112
COLUMBIA L. REV. 1585, 1587 (2012).
The Supreme Court has long recognized this proposition.
In Ex parte Virginia, decided just years after the Fifteenth
Amendment’s ratification, the Court declared that the
Reconstruction Amendments “were intended to be, what they
really are, limitations of the power of the States and
enlargements of the power of Congress.” 100 U.S. at 345.
With respect to Congress’s power to enforce the
Amendments, the Court explained:
Whatever legislation is appropriate, that is, adapted
to carry out the objects the amendments have in
view, whatever tends to enforce submission to the
prohibitions they contain, and to secure to all persons
the enjoyment of perfect equality of civil rights and
the equal protection of the laws against State denial
or invasion, if not prohibited, is brought within the
domain of congressional power.
Id. at 345–46 (emphasis added). In Fitzpatrick v. Bitzer, the
Court, elucidating Congress’s authority to enforce the
substantive guarantees of the Fourteenth Amendment,
recognized that the Amendment “quite clearly contemplates
limitations on [the states’] authority.” 427 U.S. 445, 453
(1976). And in City of Boerne v. Flores, the Court, harkening
back to Ex parte Virginia, emphasized that the Reconstruction
Amendments’ enforcement provisions ensure that Congress
has “the power to make the [Amendments’] substantive
constitutional prohibitions against the States effective.” 521
U.S. 507, 522 (1997). The Court explained that they
constitute a “positive grant of legislative power to Congress,”

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authorizing “[l]egislation which deters or remedies
constitutional violations . . . even if in the process
it . . . intrudes into legislative spheres of autonomy previously
reserved to the States.” Id. at 517–18 (internal quotation
marks omitted).
Given this century and a half of precedent, rejecting
Shelby County’s argument hardly requires that we “make
constitutional pronouncements,” Op. at 15 (internal quotation
marks omitted), or otherwise attempt to delimit, once and for
all, the precise contours of the Reconstruction Amendments,
see id. at 14, 21. It suffices to recognize, as the Supreme
Court has time and again, that the Fourteenth and Fifteenth
Amendments protect not state autonomy, but rather individual
rights “against State denial or invasion.” Ex parte Virginia,
100 U.S. at 346.
Of course, Congress’s remedial authority under the
Fourteenth and Fifteenth Amendments is “not unlimited,” as
it “extends only to enforcing the provisions of [those]
Amendment[s].” City of Boerne, 521 U.S. at 518–19
(emphasis added) (internal quotation marks and alteration
omitted). But when Congress oversteps the limits of that
power, it does not, as Shelby County contends, violate any
“guarantee” of the Fourteenth or Fifteenth Amendment.
Instead, as always happens when Congress exceeds its
enumerated authority and breaches the bounds of federalism,
it violates the Tenth Amendment, which reserves to the states
all “powers not delegated to the United States by the
Constitution, nor prohibited by it to the States.” See, e.g.,
Printz v. United States, 521 U.S. 898, 919 (1997); New York
v. United States, 505 U.S. 144, 177 (1992). Indeed, as noted
above, such was the basis for Shelby County’s original
complaint in this very case, as well as for the Supreme
Court’s decision in the County’s favor. Put in terms of the

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VRA’s fee-shifting provision, then, Shelby County brought
this case to enforce the federalism “guarantees” of the Tenth
Amendment, not the “voting guarantees” of the Fourteenth or
Fifteenth Amendment. Shelby County is thus ineligible for
attorneys’ fees.
Finally, I agree with Judge Silberman that Shelby County
would have been eligible for fees had it prevailed in a suit
brought on behalf of voters to vindicate their Fourteenth and
Fifteenth Amendment rights to be free from discrimination in
voting. But that is not the case the County filed.

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SILBERMAN, Senior Circuit Judge, concurring in the
judgment: At oral argument, I asked counsel for the NAACP
(originally the intervenor) the following hypothetical. Suppose
a new Congress were to pass a version of the Voting Rights Act
that was discriminatory to African-American voters. If you sued
and prevailed on grounds that the new statute violated both the
“right to vote” under the Fifteenth Amendment (which protects
against interference by both the states and the United States), as
well as the right to vote pursuant to the equal protection clause
of the Fourteenth Amendment, see Reynolds v. Sims, 377 U.S.
533 (1964), would you be entitled to attorney’s fees under the
Voting Rights Act. The answer was unequivocally yes, and I
think that is correct.
But that dialogue demonstrates two logical flaws in the
court’s opinion. The first is that the attorney’s fees provision
does not speak to suits to enforce the Voting Rights Act, similar
to prior cases dealing with civil rights statutes, but “rather an
action or proceeding to enforce the voting guarantees of the
Fourteenth and Fifteenth Amendments.” In other words, a suit
that challenges the constitutionality of a version of the Voting
Rights Act can not be rejected merely because it challenges the
Voting Rights Act. Therefore, much of the court’s discussion on
this point is irrelevant.
The second logical flaw, similar to the first, which the
district court and Judge Griffith’s opinion emphasize, is that it
is allegedly inconceivable that any Congress would authorize
attorney’s fees for an action challenging the legality of the very
statute in which attorney’s fees are authorized. The problem is
that the statute authorizing attorney’s fees was passed in 1975,
whereas the recent statute challenged in this case was passed in

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2006.1 So, whether attorney’s fees are allowed depends not on
the view of the recent Congress, but rather on the words of the
1975 Congress.
I also disagree with the government that Shelby County
could not have recovered fees because its lawsuit was inherently
one on behalf of state autonomy. Actually, the original case
could have been framed as one protecting the rights of
individual voters in governed jurisdictions not to be
discriminated against under the Fourteenth and Fifteenth
Amendments. After all, the Section 5 procedure did limit the
ability of voters to expeditiously change various voting practices
and insofar as the formula for inclusion of covered jurisdictions
was arbitrary, it was discriminatory. (Indeed, Section 2 of the
Fourteenth Amendment actually speaks of preventing the right
to vote of anyone being in any way “abridged.”2)
Nevertheless, I concur in the judgment in this case
because I agree with Judge Tatel that the original suit was not
brought on behalf of the individual voting rights of the citizens
of Shelby County. Whether this goes to eligibility or
entitlement – the concepts are interrelated in the court’s opinion
– it is sufficient to conclude the action was not brought to
enforce the voting guarantees of the Fourteenth or Fifteenth
Amendment. It is simply not enough to rely, as does Shelby
County, on their original argument that the statute was not

1

Section 14(e) was originally codified as 42 U.S.C. §1973l(e), but was
later recodified with the Voting Rights Act as a whole into Title 52.

2

Although a specific remedy is provided. It is not clear whether, and
if so, how, it may be implemented by statute; in any event, it was not
relied upon by Shelby County.

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“appropriate” within the meaning of those amendments, because
its claim of inappropriateness – at least originally – was only
based on precepts of federalism of the Tenth Amendment, not
individual voting guarantees.

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