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                                                                         [PUBLISH]




               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 17-11941
                           ________________________

                      D.C. Docket No. 5:14-cv-00540-AKK



GARY VOKETZ,
for himself and on behalf of the citizens of Decatur, Alabama, and the State of
Alabama,

                                                               Plaintiff - Appellant,

                                      versus

DECATUR, ALABAMA, CITY OF,
the; a municipal corporation,
CITY COUNCIL OF DECATUR, THE,
DON KYLE,
ROGER ANDERS,
BILLY JACKSON, et al.,

                                                            Defendants - Appellees,

AL ROBINSON,
DORIS A. BAKER,
DR. SAMUEL T. KING,
ANNIE R. PRIEST,
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                                                          Intervenors Defendants - Appellees.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Alabama
                             ________________________

                                    (September 13, 2018)

Before TJOFLAT and JULIE CARNES, Circuit Judges, and BLOOM, * District
Judge.

JULIE CARNES, Circuit Judge:

       In 2010, Decatur residents passed a referendum to change Decatur’s form of

government, including how the city council was elected. City officials, however,

decided not to implement the referendum because they believed doing so would

violate § 5 of the Voting Rights Act. Gary Voketz filed this lawsuit in 2014 to

compel Decatur to implement the referendum. The City and its current

councilmembers again contend that they cannot do so because it would violate § 5.

       After initially denying the defendants’ motion for summary judgment based

on § 5, the district court reversed itself and granted summary judgment. We

disagree with the court’s second decision. By striking down § 4(b)’s coverage

formula that defined the jurisdictions to which § 5 applies, the Supreme Court’s

*
   Honorable Beth Bloom, United States District Judge for the Southern District of Florida,
sitting by designation.


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decision in Shelby County v. Holder, 570 U.S. 529 (2013), rendered § 5

inapplicable to Decatur. Thus, § 5 does not prohibit Decatur from implementing

the referendum and reforming its government now, in 2018. Accordingly, we

REVERSE the district court.

I.    BACKGROUND

      A.     Factual Background

      In 2009, Voketz, a Decatur resident, began circulating a petition for a

referendum to change the form of government of Decatur, Alabama. Decatur had

redrawn its voting districts in 2004 to comply with the Voting Rights Act. By

doing so, the City freed itself from a 1988 consent decree that governed its

electoral procedures. Given this new freedom, Voketz sought a referendum to

change Decatur’s form of government from mayor-council to council-manager.

      At the time Voketz began circulating his petition, Decatur’s mayor-council

government was led by a mayor elected at large and five city councilmembers

elected from single-member voting districts. One of the five councilmember

voting districts had a black voting-age majority.

      Voketz’s referendum to change to a council-manager government would

retain the five-member city council but would modify how those members were

elected. Instead of all members being elected through single-member voting


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districts, two members would be elected at large—one of whom would serve as

mayor. Ala. Code § 11-43A-8. The remaining three councilmembers would be

elected by single-member districts. Id. § 11-43A-9.

      Voketz’s efforts were successful, and, in 2010, the referendum passed, and

the residents of Decatur elected to change to a council-manager form of

government.

      Drawing new single-member districts that satisfied both federal and state

law, however, put Decatur between a rock and a hard place. Section 5 of the

Voting Rights Act required that Decatur, as a covered jurisdiction, preclear any

changes to its voting laws either with the Department of Justice or by obtaining a

declaratory judgment from the United States District Court for the District of

Columbia. 52 U.S.C. § 10304(a). Without preclearance, § 5 stipulated that

covered jurisdictions like Decatur could not enact or administer any laws that

would have a retrogressive effect on minority voting power—meaning that a

minority population’s ability to elect its preferred candidate could not be

decreased. Id.; see also Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 478 (1997).

      Meanwhile, Alabama law required that Decatur’s voting districts “contain[ ]

as nearly an equal number of people as possible.” Ala. Code § 11-43A-9. But,

because of the overall population numbers and geographic spread of Decatur’s


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black voting-age population, the only feasible way (according to the City) to

comply with § 5 and preserve a majority-black voting district was to draw districts

that were greatly unequal in population.

      The tension between preserving a majority-black voting district and

equalizing population between the districts proved unworkable. Of the six

potential district maps evaluated by the City, five had maximum population

deviations between districts of 24.09% or more. To comply with Alabama’s equal

population requirement, Decatur adopted the sixth plan that had a population

deviation of only 3.62%. The sixth map, however, required the removal of the

majority-black voting district because, under that map, the district would have only

a 34.96% black voting-age population.

      Nevertheless, Decatur submitted the sixth plan to the Department of Justice

for preclearance under § 5 in October 2011. In December 2011, DOJ sent Decatur

a “more information request.” The request informed Decatur that “the information

sent is insufficient to enable [DOJ] to determine” whether the new plan complied

with § 5, and it asked for further documentation and data on voting behavior and

election results. Faced with this request, Decatur determined that the new

information would likely demonstrate that the redistricting plan violated the Voting

Rights Act.


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      So, in January 2012, the city council released a resolution declaring that “it

is mathematically impossible for the City to have three single-member voting

districts with each district containing as nearly an equal number of people as

possible that will not have a retrogressive impact on the Black voters of Decatur.”

And, instead of providing DOJ with additional information, the City withdrew the

council-manager districting plan and created a new plan (redrawn to accommodate

the 2010 census) under the original government structure with five single-member

voting districts that preserved the majority-black voting district. DOJ precleared

this new plan, and regularly scheduled elections took place in 2012.

      B.     Procedural History

      In February 2014, Voketz filed this lawsuit in Alabama state court against

the City of Decatur and the city council—Don Kyle, Roger Anders, Billy Jackson,

Charles Kirby, and Charles Ard—(collectively, “Defendants”) seeking declaratory

and injunctive relief to compel Decatur to implement the 2010 referendum and

reform Decatur’s governmental structure. Defendants removed to federal court

and moved for summary judgment on the grounds that “[a] change to the council-

manager form of government and method of electing City officials approved in the

2010 referendum would violate Section 5 of the Voting Rights Act.” The district

court denied the motion and concluded that the Supreme Court’s holding in Shelby


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County v. Holder, 570 U.S. 529 (2013)—which freed Decatur of any obligation to

comply with § 5—applied retroactively, so § 5 posed no barrier to implementation

of the referendum.

      After the Supreme Court decided Harris v. Arizona Independent

Redistricting Commission, _ U.S. _, 136 S. Ct. 1301 (2016), Defendants moved for

reconsideration. The district court reversed its initial order and granted summary

judgment to Defendants. Contrary to its initial decision, the court concluded that

Harris demonstrated that Shelby County was not retroactive and that Defendants

thereby had a valid § 5 defense. Voketz filed a timely appeal under 28 U.S.C.

§ 1291.

II.   STANDARD OF REVIEW

      We review a district court’s grant of summary judgment de novo, viewing all

factual inferences in the light most favorable to the nonmoving party. Greenberg

v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). To grant

summary judgment, the moving party must show “that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).




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III.   DISCUSSION

       At issue in this appeal is whether § 5 prohibits Defendants from

implementing the 2010 referendum now in 2018. To resolve this, we first examine

the Voting Rights Act and the Supreme Court’s decision in Shelby County.

Section 5 of the Act prohibits only those jurisdictions covered under § 4(b) from

changing their voting procedures without first preclearing the changes. Shelby

County struck down § 4(b)’s coverage formula as unconstitutional. As a result,

there are no covered jurisdictions for § 5 to apply to, so § 5 is functionally

unenforceable.

       From this, it logically follows that § 5 does not restrict Decatur’s post-Shelby

County implementation of the 2010 referendum. Because Voketz seeks only to

compel Defendants to implement the referendum going forward, § 5 cannot

prohibit it because § 5 no longer applies to Decatur. And, because Voketz seeks

only prospective relief, Shelby County’s retroactivity is not at issue.

       A.    The Voting Rights Act and Shelby County
       We begin by examining sections 4 and 5 of the Voting Rights Act, the

interaction between the two, and how Shelby County’s invalidation of § 4(b)’s

coverage formula impacted § 5.




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                1.      Sections 4 and 5 of the Voting Rights Act

         Sections 4 and 5 of the Voting Rights Act of 1965—as they existed in the

most recent reauthorization of the Act in 2006 1—together prevented covered

political jurisdictions from enacting or enforcing laws that harmed minority voting

rights in certain ways. Section 4(b) contained a coverage formula—a laundry list

of different criteria based off statistics and determinations made about states and

political subdivisions from the 1960’s and 70’s.2 Shelby County, 570 U.S. at 551.

Section 4(b)’s coverage formula determined what jurisdictions were subject to

regulation under § 5. Id. at 550 (“The provisions of § 5 apply only to those

jurisdictions singled out by § 4.”).

         Section 5 requires that, for “covered jurisdictions” under § 4(b), “no change

in voting procedures c[an] take effect until it [is] approved by federal authorities in

Washington, D.C.—either the Attorney General or a court of three judges.” Id. at

537. A jurisdiction can obtain this “preclearance” only by demonstrating that the

1
 Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and
Amendments Act, 120 Stat. 577 (2006).
2
    For example, § 4(b) covered “any State” or “political subdivision” that:

         the Attorney General determines maintained on November 1, 1964, any test or device [to
         impair minority voting rights], and . . . less than 50 per centum of the persons of voting
         age residing therein were registered on November 1, 1964, or . . . less than 50 per centum
         of such persons voted in the presidential election of November 1964.

52 U.S.C. § 10303(b).

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change neither has a “discriminatory purpose,” nor “diminish[es] the ability of

citizens, on account of race, color, or language minority status, ‘to elect their

preferred candidates of choice.’” Id. at 539 (quoting 52 U.S.C. § 10304).3 This

second requirement—that a voting procedure not have a discriminatory effect—

incorporates a retrogression standard, meaning that changing a voting procedure

violates § 5 only if it “would lead to a retrogression in the position of racial

minorities with respect to their effective exercise of the electoral franchise”

compared to the jurisdiction’s previous election procedures. Reno v. Bossier

Parish Sch. Bd., 520 U.S. 471, 478 (1997) (internal quotation marks omitted); see

also Georgia v. Ashcroft, 539 U.S. 461, 477 (2003) (“[A] voting change with a

discriminatory but nonretrogressive . . . effect does not violate § 5.”).

       If a covered jurisdiction does not obtain preclearance for a change to its

voting procedures, § 5 prohibits that jurisdiction from “enact[ing] or seek[ing] to

administer” the change. 52 U.S.C. § 10304(a). In other words, “changes in

election practices are not ‘effective as laws until and unless [they are] cleared

pursuant to § 5.’” McCain v. Lybrand, 465 U.S. 236, 245 (1984) (quoting Conner

v. Waller, 421 U.S. 656, 656 (1975)); see also Clark v. Roemer, 500 U.S. 646,


3
  At the time Shelby County was decided, sections 4 and 5 of the Voting Rights Act were
codified at 42 U.S.C. § 1973b and § 1973c, respectively. They are now codified at 52 U.S.C.
§ 10303 and § 10304.


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652–53 (1991) (“If voting changes subject to § 5 have not been precleared, § 5

plaintiffs are entitled to an injunction prohibiting the State from implementing the

changes.”).

      Section 5’s preclearance requirements and prohibitions are thus dependent

on § 4(b)’s coverage formula. Shelby County, 570 U.S. at 550. Because § 5 only

applies to the jurisdictions identified in § 4(b), it becomes toothless without it. See

id. at 559 n.1 (Ginsburg, J., dissenting) (“[W]ithout [§ 4(b)’s] formula, § 5 is

immobilized.”).

              2.    Shelby County held § 4(b)’s coverage formula to be
                    unconstitutional, rendering § 5 inapplicable

      The Supreme Court held in Shelby County that § 4(b)’s coverage formula

was unconstitutional. Under the Fifteenth Amendment, “a statute’s ‘current

burdens’ must be justified by ‘current needs,’ and any ‘disparate geographic

coverage’ must be ‘sufficiently related to the problem that it targets.’” Shelby

County, 570 U.S. at 550–51 (quoting Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193, 203 (2009)). In Shelby County, the Court observed that,

although § 4(b)’s coverage formula was constitutional when first passed in the

1960’s, “[t]here is no denying . . . that the conditions that originally justified these

measures no longer characterize voting in the covered jurisdictions.” Id. at 535.

Congress’s failure to update the formula “ignore[d]” recent positive developments

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in voting rights and instead “ke[pt] the focus on decades-old data relevant to

decades-old problems, rather than current data reflecting current needs.” Id. at

553. Thus, because § 4(b) triggered heavy preclearance burdens under § 5 based

on forty-year old information that no longer reflected modern reality, the Court

“declare[d] § 4(b) unconstitutional” and held that “[t]he formula in that section can

no longer be used as a basis for subjecting jurisdictions to preclearance.” Id. at

557.

       Although the Court “issue[d] no holding on § 5 itself,” id., § 4(b)’s

invalidation effectively brought § 5 down with it. Section 5’s preclearance

requirements no longer apply because, without § 4(b)’s coverage formula, there are

no covered jurisdictions for § 5 to apply to. See id. at 559 n.1 (Ginsburg, J.,

dissenting) (“The Court purports to declare unconstitutional only the coverage

formula set out in § 4(b). But without that formula, § 5 is immobilized.” (citation

omitted)); Thompson v. Att’y Gen. of Miss., 129 F. Supp. 3d 430, 435 (S.D. Miss.

2015) (three-judge panel) (“[W]ithout a coverage formula, no jurisdictions are

presently covered by § 5’s preclearance requirement.”).

       Altogether, there are three takeaways from this examination of the Voting

Rights Act and Shelby County. First, § 5 applies only to covered jurisdictions

under § 4(b). Second, § 5 prohibits those jurisdictions from enacting or


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administering changes in their voting procedures without first obtaining

preclearance. Finally, after Shelby County, there are no covered jurisdictions under

§ 4(b), so § 5’s prohibitions do not apply to any jurisdictions.

      B.     Post-Shelby County, § 5 Does Not Prohibit Decatur from
             Implementing the 2010 Referendum
      Putting these three takeaways together leads to one conclusion: § 5 does not

prohibit or regulate any voting procedure changes after Shelby County. Although

§ 5 may have prohibited covered jurisdictions from altering their voting procedures

without preclearance when § 4(b) was still in force, that is undeniably no longer

the case after Shelby County. Shelby County “stop[ped] any application of § 5 by

holding that § 4(b)’s coverage formula is unconstitutional.” 570 U.S. at 587

(Ginsburg, J., dissenting). So, after Shelby County, formerly covered jurisdictions

may alter their voting procedures without regard to § 5.

      Indeed, § 5 places no limits on what laws noncovered jurisdictions may pass

or enforce. Section 5 prevents only covered jurisdictions from enacting and

administering changes to their voting procedures. 52 U.S.C. § 10304(a). It does

not affect noncovered jurisdictions. See Shelby County, 570 U.S. at 550 (“The

provisions of § 5 apply only to those jurisdictions singled out by § 4.”). Further,

the Act expressly allows covered jurisdictions to “bail out” of coverage. See 52

U.S.C. § 10303(a); Nw. Austin, 557 U.S. at 199 (describing the bailout

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requirements). If a jurisdiction successfully bails out, then it is no longer a covered

jurisdiction and thus no longer subject to § 5. At that point, the previously covered

jurisdiction may enact or administer changes to its voting procedures regardless of

what § 5 may have previously required. See Nw. Austin, 557 U.S. at 199, 205–06

(holding that constitutional questions about sections 4 and 5 could be avoided

because a covered jurisdiction that bails out of coverage frees itself from the

restrictions of sections 4 and 5). It logically follows that § 5 does not prohibit

noncovered jurisdictions from enacting or administering laws, whether they are

noncovered because Shelby County invalidated § 4(b)’s coverage formula, because

they have bailed out, or because they were never covered to begin with.

      As a result, § 5 is inapplicable to Decatur, a formerly covered jurisdiction,

and does not prohibit Decatur from now altering its voting procedures. And that is

precisely what Voketz seeks—purely prospective relief requiring Defendants to

implement the 2010 referendum going forward. Because Decatur is no longer a

covered jurisdiction under § 4(b)—and thus no longer subject to § 5—§ 5 does not

currently prohibit Decatur from altering its voting procedures. Although § 5 may

have prohibited implementing the referendum without preclearance when it was

originally passed before Shelby County (an issue we do not address here), that

plainly is not the case now that Decatur is no longer a covered jurisdiction. Thus,


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§ 5 cannot prohibit any voting procedure change that Decatur makes now or in the

future.

      The only other court to consider this issue reached the same conclusion. In

Thompson v. Attorney General of Mississippi, a three-judge panel denied a

requested preliminary injunction based on a formerly-covered jurisdiction’s

alleged violation of § 5 after Shelby County. 129 F. Supp. 3d 430 (S.D. Miss.

2015). Similar to the facts here, Thompson concerned a Mississippi law that was

passed in 1980 that the plaintiffs alleged could not be enforced after Shelby County

because it never received preclearance. Id. at 435. The court observed that,

although the law would have been unenforceable “before Shelby County,” “[t]he

result of Shelby County is that § 5 cannot be enforced at all.” Id. Accordingly, the

court denied the plaintiff’s request for a preliminary injunction. Id. at 436.

Thompson’s reasoning and holding that § 5 no longer prohibits changes to voting

procedures—even for laws passed while § 5 was still applicable—agrees with our

analysis and conclusion here.

      Defendants’ § 5 defense rests entirely on the premise that a law that was

unenforceable under § 5 before Shelby County is unenforceable forever. Section 5,

however, does not invalidate or nullify laws, nor does it mandate that they may

never be administered. Instead, it prohibits covered jurisdictions from “enact[ing]


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or seek[ing] to administer” voting procedure changes without preclearance. See 52

U.S.C. § 10304(a). Section 5 acts as an obstacle to the implementation of any

changes until those changes are precleared. See McCain, 465 U.S. at 245; Clark,

500 U.S. at 652–53. Once a jurisdiction is removed from coverage and § 5 no

longer applies, the obstacle is removed, and the jurisdiction may freely implement

its desired changes.

      Defendants concede as much. At oral argument, Defendants acknowledged

that if this lawsuit were reversed—if Defendants had decided to implement the

2010 referendum and Voketz sued to stop it—§ 5 would pose no obstacle. Indeed,

this is precisely what Thompson held. And we can see no reason why the outcome

should be different here. Decatur was free the moment Shelby County was decided

to either enact a new law duplicating the referendum or to simply administer the

original. See Thompson, 129 F. Supp. 3d at 435 (“[F]ormerly covered states may

now immediately ‘enact or seek to administer’ voting laws, practices, and

procedures without having to await review by the Department of Justice.”

(footnote omitted)). Whether Defendants freely choose to implement the 2010

referendum or they are compelled to do so through this lawsuit, after Shelby

County, neither violates § 5.




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      The district court got it right in its original order when it observed that

Voketz was seeking “a prospective-only application of Shelby County” and denied

Defendants’ motion for summary judgment. The district court erred by later

reversing itself and granting summary judgment to Defendants. In doing so, the

district court did not explicitly address how § 5 could, post-Shelby County, prevent

Defendants from implementing the 2010 referendum. Instead the court appears to

have operated from the presumption that § 5 barred implementation unless Shelby

County was retroactive. If Voketz was challenging pre-Shelby County actions

based on Defendants’ failure to implement the referendum, Shelby County’s

retroactivity might be at issue. But this case does not concern retroactivity.

Voketz seeks only prospective declaratory and injunctive relief that requires

Decatur to implement the referendum going forward. Shelby County need not be

retroactive for Voketz to be entitled to such relief.

                                   CONCLUSION

      It may be that Section 2 of the Voting Rights Act, the Constitution, or state

law could impose some obstacle that prevents Defendants from implementing the

2010 referendum now. We do not know the answer to that question. What we do




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know is that Section 5 does not stand in the way. The district court’s order

granting summary judgment to Defendants is therefore REVERSED. 4




4
  Because we reverse the district court’s order granting summary judgment to Defendants, we do
not address Voketz’s alternative argument that the district court abused its discretion by limiting
discovery.


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