[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
VOTING RIGHTS ACT: AN EXAMINATION OF THE SCOPE AND CRITERIA FOR
COVERAGE UNDER THE SPECIAL PROVISIONS OF THE ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
OCTOBER 20, 2005
__________
Serial No. 109-68
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
24-034 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
OCTOBER 20, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Member, Subcommittee on the
Constitution................................................... 3
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 4
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on the
Constitution................................................... 5
WITNESSES
The Honorable Michael S. Steele, Lieutenant Governor of the State
of Maryland
Oral Testimony................................................. 8
Prepared Statement............................................. 11
Mr. Jose Garza, Voting Rights Attorney, League of United Latin
American Citizens
Oral Testimony................................................. 12
Prepared Statement............................................. 15
Mr. Armand Derfner, Voting Rights Attorney, Derfner, Altman &
Wilborn
Oral Testimony................................................. 79
Prepared Statement............................................. 81
Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division,
U.S. Department of Justice
Oral Testimony................................................. 87
Prepared Statement............................................. 89
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Linda T. Sanchez, a
Representative in Congress from the State of California, and
Member, Subcommittee on the Constitution....................... 111
Prepared Statement of the Honorable David Scott, a Representative
in Congress from the State of Georgia.......................... 112
Appendix to the Prepared Statement of Armand Derfner: United
States v. Charleston County (316 F.Supp.2d 268)................ 113
Appendix to the Prepared Statement of Armand Derfner: United
States v. Charleston County (365 F.3d 341)..................... 147
Appendix to the Prepared Statement of Armand Derfner: United
States v. Charleston County (125 S.Ct. 606).................... 157
Appendix to the Statement of J. Gerald Hebert: Revised Prepared
Statement...................................................... 158
Materials for the Hearing Record submitted by the Honorable Steve
Chabot on October 27, 2005
Presentation on Behalf of Merced County, California,
Concerning Reauthorizations of Sections 4 and 5 of the
Voting Rights Act.......................................... 171
Supplement to November 4, 2005 Presentation on Behalf of
Merced County--Information re Yuba County, California and
Why the Bailout Criteria are Unduly Onerous for California
Counties................................................... 238
Prepared Statement of Chellie Pingree, President and CEO,
Common Cause............................................... 249
VOTING RIGHTS ACT: AN EXAMINATION OF THE SCOPE AND CRITERIA FOR
COVERAGE UNDER THE SPECIAL PROVISIONS OF THE ACT
----------
THURSDAY, OCTOBER 20, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:04 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee on the Constitution will come to
order.
I am Steve Chabot, the Chairman of the Subcommittee on the
Constitution. We appreciate everyone for being here this
morning, and I especially appreciate some of our Members for
being so prompt. This is the second in a series of hearings
that the Subcommittee on the Constitution will be holding
examining the Voting Rights Act.
On Tuesday, we had a very productive hearing. And I want to
thank both Ranking Member Nadler, the Ranking Member of this
Committee, and also the Ranking Member of the full Committee,
the distinguished gentleman from Michigan, Mr. Conyers, and all
of the Republican and Democratic Members of this Committee, for
their contributions to this process. I know we all appreciate
the bipartisan effort being made to make these hearings
successful.
This morning, the Subcommittee will focus on one of the
most important provisions of the Voting Rights Act, section 4,
the provisions it triggers, and the impact that section 4 has
had on protecting minority voting rights.
We will also examine the usefulness of the so-called
``bailout'' process available to States and counties that
allows them to remove themselves from covered status.
We have a distinguished panel with us today. And I would
very much like to thank them all for being here and taking
their time, because I know every one of these gentlemen has
very busy schedules, and we appreciate their willingness to
participate in this important hearing.
After the Civil War and the passage of the 13th, 14th, and
15th amendments, our Nation had high hopes that each and every
citizen would be afforded an equal opportunity to participate
in our democratic form of Government. Unfortunately, this was
not to be--at least, for a very long, long time.
Rather, certain States and counties made it a priority to
undermine the ability of minorities to participate in the
political process. These States and counties relied on various
tests and devices--most often, literacy tests--to prevent many
of our fellow citizens from exercising their fundamental right
to vote.
In 1965, Congress pushed back against these invidious
practices, using section 4 and the additional provisions it
triggers. Knowing the primary offenders, and the discriminatory
patterns and practices that were being implemented in these
jurisdictions, Congress took steps to target discrimination in
these States and localities.
Through section 4, a set of criteria was established to
prohibit States and counties that had a history of
discrimination from administering a literacy test as a
prerequisite to voting. Specifically, those States and counties
that maintained a test or device on November 1, 1964, 1968, or
1972, and in which less than 50 percent of the voting age
population was registered to vote on November 1 of 1964, 1968,
or 1972, or participated in the Presidential elections held in
November 1964, 1968, or 1972, were impacted by the prohibition.
Congress--our predecessors--did not stop there. Recognizing
that these States and counties had a history of circumventing
Congress, section 4 automatically subjected these newly covered
jurisdictions to additional Federal review, including the
preclearance requirements of section 5, which we will discuss
in greater detail next week, and the assistance of Federal
examiners and observers set forth in sections 6 through 8.
Section 4 has also been used to extend the protections of
the Voting Rights Act to other minority citizens who have been
denied the opportunity to participate in the political process.
Presented with similar patterns of discrimination against
language minority citizens, Congress brought language
minorities under the protection of the VRA in 1975, expanding
the number of jurisdictions subject to section 4 coverage.
Presently, 16 States are either covered in their entirety or
partially under section 4.
In extending section 4 on three occasions, Congress has
weighed the federalism issues raised by section 4 and the
provisions it triggers against the continued need to address
racial discrimination. In upholding the Voting Rights Act, the
Supreme Court has consistently recognized Congress' broad
authority under section 2 of the 15th amendment to remedy
discrimination.
Over the last 40 years, section 4 has played an important
role in increasing the participation of minorities in the
voting process; as witnessed by record voting registration
levels. However, we must remain vigilant in our efforts to stop
discrimination and ensure that every citizen is given a fair
opportunity to exercise his or her right to vote.
The Voting Rights Act will continue to help protect these
important freedoms, until the day that we can proudly say that
discriminating in voting no longer exists.
We look forward to today's hearing and the testimony
presented by our very distinguished panel at this time. And I
would now yield 5 minutes to the gentleman from New York, the
distinguished Ranking Member of the Committee, Mr. Nadler.
Mr. Nadler. Thank you, Mr. Chairman. I will be brief. I
won't take anything near the 5 minutes.
I want to warmly welcome our distinguished witnesses today.
We are now getting to the core issues of the renewal of the
Voting Rights Act. As we have all acknowledged, Congress needs
to make a strong factual record supporting its remedies, given
recent Supreme Court decisions.
The witnesses today will provide much-needed information to
guide our actions to make that record and to support--I
presume, to support our actions in reauthorizing the Voting
Rights Act.
I look forward to the testimony, and I yield back.
Mr. Chabot. I thank the gentleman for yielding back. The
Ranking Member of the full Committee, Mr. Conyers, would you
like to make a statement?
Mr. Conyers. Mr. Chairman, I would, just briefly, please.
And I thank you for this opportunity.
When we enacted the Voting Rights Act in 1965, we
determined that racial discrimination in voting has been more
prevalent in certain areas of the country, and so section 4(a),
which we are examining today, established a formula to identify
those areas and to provide more stringent remedies where
appropriate.
As you said, it has been amended three times, to broaden
the scope of the act's coverage to language minorities, and to
cope with the changing nature of voting discrimination. In
1975, we expanded the coverage formula to include the practice
of providing in any election information, including ballots,
only in English, in States or political subdivisions where
members of a single language minority constituted more than 5
percent of voting age. This affected the coverage in Alaska,
Arizona, Texas, in their entirety; parts of California;
Florida; even in my State of Michigan, two townships; New York;
Carolina [sic]; and South Dakota.
Significantly, section 4, in adding to defining the scope
coverage, contains a bailout provision that allows
jurisdictions to terminate or bail out from coverage under the
act's special provisions; originally enacted as a means to
remedy any possible over-inclusiveness resulting from
application of the trigger formula. So we amended the procedure
in 1982 so jurisdictions that meet the statutory standards can
obtain relief.
Bailout, though stringent in its terms, has been
realistically available as an option to covered jurisdictions.
For example, when the act was reauthorized in 1970,
enhancements in the coverage formula resulted in the partial
coverage of 10 States.
After 1982 modifications to the bailout provision, the City
of Fairfax, Virginia, filed the first bailout action, and the
United States consented to the declaratory judgment entered in
October 1997. And since that time, several other jurisdictions
have obtained similar judgments. It is a quick way to get out
from under it.
Thus, the act's bailout provision serves as a self-
adjusting mechanism that enables jurisdictions in which the
right to vote is no longer threatened to remove themselves from
preclearance requirements from section 5.
I look forward in particular to Mr. Hebert's discussion on
this issue; as I believe that bailout is an important area for
this Committee to understand in detail as we move forward.
And so in this reauthorization process, it is vital that we
understand the evolution of the act, to ensure that we build a
record adequate to insulate this important legislation from
constitutional challenge.
This hearing is an important one because it provides a
benchmark to our inquiry. And I appreciate the Chair's and the
Members' great detail in going through these hearings, because
it is very critical that we leave a record showing that we
understand that these discussions will be gone back into. And I
thank you for the time, and yield back, Mr. Chairman.
Mr. Chabot. Thank you very much, Mr. Conyers.
I understand the gentleman from North Carolina, Mr. Watt,
would also like to make an opening statement.
[Discussion off the record.]
Mr. Chabot. Mr. Scott, did you want to make a statement?
Mr. Scott of Virginia. Thank you, Mr. Chairman. And Mr.
Chairman, in the 40 years since its passage, the Voting Rights
Act has guaranteed millions of minority voters a chance to have
their voices heard and their votes counted. The number of Black
elected officials has increased from just 300 nationwide in
1964, to more than 9,100 today. Poll taxes, literacy tests, and
other discriminatory barriers that once closed the ballot box
to Blacks and other minorities have been dismantled.
The process also opened the political process for nearly
6,000 Latinos who now hold public office, including more than
250 who serve at the State or Federal level.
When Congress enacted the Voting Rights Act in 1965, it
determined that racial discrimination in voting had been more
prevalent in certain areas of the country. To address this
problem, section 4 of the act established a formula to identify
those areas and to provide more stringent remedies where
appropriate.
The first of these targeted remedies was a 5-year
suspension of a test or device, such as a literacy test, as a
prerequisite to registration.
Second was a requirement for a review and preclearance
under section 5 of any change affecting voting made by the
covered area, either by the United States District Court in the
District of Columbia or by the Attorney General.
Third was the ability of the Attorney General to specify
that specified jurisdictions also required the appointment of
Federal examiners. These examiners would prepare and forward
lists of persons qualified to vote.
And the final remedy was special provisions giving the
Attorney General authority to send Federal observers to those
jurisdictions that had been certified for Federal examiners.
In the past years, Congress has recognized the tenacious
grip of discrimination in voting, and we have continued to
reauthorize the sections we will discuss today. These
provisions are essential to ensure fairness in our political
process and equal opportunity for minorities in American
politics.
Now, if we are to continue these provisions, we need to
establish the record showing the compelling State interest in
these processes, and making sure that the remedy is narrowly
tailored to address that interest. And so, Mr. Chairman, I
thank you for holding these hearings, so that that record can
be established.
Mr. Chabot. Thank you very much, Mr. Scott.
The gentleman from North Carolina is recognized.
Mr. Watt. Thank you, Mr. Chairman. And let me start by
thanking Chairman Chabot for convening this second in a series
of hearings on the expiring provisions of the Voting Rights
Act; and once again, thank Chairman Sensenbrenner publicly for
committing to developing a full record for evaluating the
impact of the Voting Rights Act and its provisions that we
think need to be reauthorized.
I normally would refrain from making a detailed opening
statement, to try to get to the witnesses. But we kind of
wandered away from the framework in the last hearing, and I
wanted to make sure that we were focused. Because I think it is
so important to focus these hearings on the various provisions
that we are considering reauthorizing, so that we make sure
that we kind of build the record in different parts.
And today's hearing focuses on sections 4(a) and 4(b) of
the Voting Rights Act, commonly referred to as the ``trigger''
and ``bailout'' provisions. Under section 4(a), jurisdictions
that maintained a discriminatory voting test or device or a
literacy requirement as a precondition to registering or
casting a vote as of November 1, 1964, 1968, or 1972, and, two,
wherein less than 50 percent of the voting-age residents were
registered to vote or actually voted in the Presidential
elections of 1964, 1968, or 1972, are bound by the requirements
of other provisions of the act, including section 5,
preclearance, and the election examiner and observer provisions
in sections 6 through 9.
While the substance and operation of sections 5 and 6
through 9 will be addressed at later hearings, today's
testimony should center upon the coverage formula contained in
section 4(a).
There are obviously those who contend that the coverage
formula of the Voting Rights Act is outdated and unfair,
insofar as it covers certain jurisdictions but not others.
There is no doubt that there are any number of inventive
triggers that Congress could have enacted. I believe, however
that the central question before us during this process is not
what Congress could have done, but whether what we have
established as the coverage mechanism in the Voting Rights Act
is justified by the facts.
Covered jurisdictions, simply put, are covered because they
have not only a history of discriminatory practices, but have a
history of ongoing discrimination as well.
And let me address two arguments quickly here. One is that,
well, there are a lot of other people who violate the law,
also. And I want to just draw a couple of distinctions here. It
is no defense to a speeding infraction that the guy in front of
you is speeding, too, or even going faster. There may be other
people who were speeding, but if you were speeding, and you
have a history of speeding, you are going to get coverage.
Similarly, the presence of discriminatory activity in an
uncovered jurisdiction does not, and should not, relieve those
covered under section 4(a) from the act's requirements.
Second, there is this thing about history. And I don't want
to demean this, but I want my colleagues on the Committee and
in the public to understand that there are some parallels here.
And I hope I am not offending anybody by doing it in this way.
I am doing it only for illustration purposes.
I call this preclearance provision a kind of form of
``Megan's Law'' registration requirement. If you committed a
crime before, especially crimes of a certain kind where you are
likely to have a higher predilection to commit the same or
similar kinds of crimes again, you are required to do certain
things. That is ``Megan's Law.'' And the Supreme Court has
upheld ``Megan's Law.''
Now, personally, when ``Megan's Law'' was debated on this
Committee, I voted against it. I thought it was a precondition.
But the Supreme Court upheld it. And there is no bailout
provision in ``Megan's Law.''
So let me talk about the bailout provisions here, because I
think that is what, really, we ought to focus on here. If a
jurisdiction under section 4(b) wants to get out from under the
preclearance requirements of the Voting Rights Act, there is a
process for doing that.
Mr. Chabot. The gentleman's time has expired. Would the
gentleman like additional time?
Mr. Watt. If I could, just let me run this out. And I will
be very quick. It will be about a minute and a half, I think.
Mr. Chabot. All right. The gentleman is recognized for an
additional 2 minutes.
Mr. Watt. Under section 4--the bailout mechanism permits a
covered jurisdiction to demonstrate that it now facilitates
equal opportunity at the ballot box. By doing so, the
jurisdiction may relieve itself of the obligations imposed
under the act. And in fact, nine jurisdictions in the Sate of
Virginia alone have availed themselves of this provision and
have successfully bailed out of the preclearance coverage of
the Voting Rights Act.
Finally, in anticipation of some of the positions that may
be advanced in opposition to the current coverage mechanism, I
should say that, while section 2 is extremely important within
the total scheme of the Voting Rights Act, it is no substitute
for the protections afforded by sections 4 and 5.
Section 2 places both the burden of proof and pocketbook on
potential victims of voting rights violations. These, too, are
issues we will explore in greater depth in subsequent hearings.
Mr. Chairman, I am pleased that you are conducting this
hearing. And I hope we will focus on these particular
provisions today, because the preclearance provisions and the
bailout provisions are not only important, but they are not
unprecedented in our law. There are some other areas where we
do similar kinds of things.
I appreciate the extra time, and I yield back.
Mr. Chabot. I thank the gentleman. And I would also like to
recognize several other Members that are here on the Committee
today. Mr. Franks, from Arizona, it is my understanding that
you do not need to make an opening statement at this time. Is
that correct?
Mr. Feeney from Florida, the same? Is that correct?
We also have been joined by two other Members who are not
actually Members of this Committee. But Ms. Sanchez is a Member
of the overall Committee from California. And although we
generally don't do opening statements of those not on the
Committee, if you would like to make a brief statement, I would
ask unanimous consent that that be allowed.
Ms. Sanchez. Thank you, Mr. Chairman. Actually, in the
interest of time and getting to the witness' testimony, I would
just ask that I be allowed to submit an opening statement for
the record.
Mr. Chabot. Without objection, so ordered.
And also, I would like to recognize the attendance of Mr.
Scott, who is not only not on this Committee, but not on the
full Committee, either. But I would like to commend him for his
attendance from, I think, beginning to end at the hearing we
had the other day. Mr. Scott, of course, is from the State of
Georgia.
And I would assume there is no opening statement that you
would like to submit this morning?
Mr. Scott of Georgia. No, sir. Thank you for your
graciousness and kindness. And I will just offer my statement
for the record, in the interests of time. Thank you very much.
Mr. Chabot. Thank you very much. So noted.
At this time, I would, without objection, ask that all
Members have 5 legislative days to submit additional materials
for the hearing record. And without objection, so ordered.
And I would like to introduce our very distinguished panel
here this morning. Our first witness will be the Honorable
Michael Steele, current Lieutenant Governor of the State of
Maryland. Since taking office in 2003, Lieutenant Governor
Steele has served as the chair of the Governor's Commission on
Minority Business Enterprise Reform, redefining the State of
Maryland's goals and commitments toward minority businesses in
Maryland.
Lieutenant Governor Steele also has worked closely with the
Maryland State Police, attempting--and being quite successful,
I understand--in reducing crime and creating safer
neighborhoods.
In taking office in 2003, Lieutenant Governor Steele became
the first African-American elected to statewide office, and
currently is the highest ranking African-American Republican
elected official in the country. Lieutenant Governor Steele is
married, and has two sons. And we thank you very much for your
attendance here this morning. And I will introduce the rest of
the panel before you begin your testimony.
Our second witness will be Mr. Jose Garza. Mr. Garza
currently represents the League of United Latin American
Citizens, as a voting rights attorney. In addition to
representing the league, Mr. Garza is a solo practitioner in
San Antonio, Texas, and has served as the litigation director
of Texas Rural Aid, Inc., since 1998.
Mr. Garza has argued on behalf of victims of voting
discrimination in a number of high-profile cases, including
before the United States courts of appeals, and also before the
United States Supreme Court. We welcome you very much here this
morning, Mr. Garza.
Our third witness will be Mr. Armand Derfner. Mr. Derfner
has had a long and distinguished career in voting rights
litigation, including appearing before the United States
Supreme Court in a number of pivotal voting rights cases.
Mr. Derfner began his career in 1965, in Greenwood,
Mississippi, and has appeared before the Constitution
Subcommittee, this Committee, during consideration of all three
extensions of the Voting Rights Act. He is the author of many
voting publications, including ``Racial Discrimination and the
Right To Vote.'' Mr. Derfner is a former law clerk to the
Honorable David Bazelon, Chief Judge of the U.S. Court of
Appeals for the District of Columbia; and currently is in
private practice in Charleston, South Carolina. We welcome you
here, also, Mr. Derfner, this morning.
And our fourth and final witness will be Mr. J. Gerald
Hebert. Mr. Hebert currently works as a solo practitioner in
Alexandria, Virginia, focusing on election law and
redistricting. Mr. Hebert also has had an extensive career in
voting litigation, representing a number of States in
redistricting and election issues, including the States of
Texas, California, New York, South Carolina, and Virginia.
Prior to his practitioner work, Mr. Hebert worked at the
Department of Justice from 1973 to 1994, where he served as
Acting Chief, Deputy Chief, and Special Litigation Counsel in
the Voting Section of the Civil Rights Division. Mr. Hebert has
served as lead attorney in numerous voting rights and
redistricting suits, and as chief trial counsel in over 100
voting rights lawsuits, many of which were ultimately decided
by the United States Supreme Court. We welcome you here, as
well, Mr. Hebert.
As I said, we have a very distinguished panel before us
this morning.
For those of you who may have not testified before the
Committee, or just to refresh those of you that may have, we
have a lighting system there. There are two boxes; the 5-minute
rule. Each of the witnesses has 5 minutes, and each of the
Members up here would have 5 minutes to question. And we try to
keep within that as much as possible. The yellow light will
come on when you have 1 minute, and the red light comes on when
your 5 minutes is up. We'd ask you to try to stay within that.
We won't gavel you down immediately, but if you can stay within
that, please try to.
It's also the practice of this Committee to swear in all
witnesses. So, if you would, please, each of you please stand
raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All the witnesses have affirmed.
And again, thank you very much for your testimony. And
we'll begin with you, Lieutenant Governor Steele, at this time.
You're recognized for 5 minutes.
TESTIMONY OF THE HONORABLE MICHAEL S. STEELE, LIEUTENANT
GOVERNOR OF THE STATE OF MARYLAND
Mr. Steele. Thank you, Mr. Chairman and Members of the
Committee. A real pleasure to be here with you this morning.
``The rights of citizens of the United States to vote shall
not be denied or abridged by the United States by any State on
account of race, color, or previous condition of servitude, and
that the Congress shall have the power to enforce this article
by appropriate legislation.''
At the dawning of the 21st century, the words of the 15th
amendment to our Nation's Constitution remind us of one of the
most precious gifts of liberty: to freely exercise your right
to vote.
And yet, even the 15th amendment, on its face, did not
guarantee that the right of citizens of the United States to
vote would not be denied as America emerged from the fog of
civil war and into the new reality that those individuals once
enslaved under the Constitution were now entitled to exercise
their rights as citizens under that same Constitution.
It would not be long, however, before certain of the
States, particularly in the South, responded to the enactment
of the 15th amendment by devising a variety of tools to
disenfranchise African-American voters for reasons of
eligibility. From literacy tests to poll taxes, from property
ownership to oral and written examinations, States began to
enact laws that ultimately denied and abridged African-
Americans their right to vote.
Moreover, when intimidation at the ballot box failed to
curb the African-American thirst for full access to the rights
guaranteed by the Declaration of Independence, more insidious
and violent means, such as lynchings, fire bombs, and murder,
were used to ``remind the Negro of his place'' in American
society. In our society, all rights are ultimately protected by
the ballot box, not the sword.
By virtue of the efforts to legally circumvent the dictates
of the 15th amendment, as well as the escalation of violence
against African-Americans in Philadelphia, Mississippi, Selma
and Montgomery, Alabama, the promise of the Constitution for
African-Americans and many other minorities--full and equal
political rights--seemed for a time like a munificent bequest
from a pauper's estate, until the passage of the single most
important piece of civil rights legislation in American
history, the Voting Rights Act of 1965.
Both Democrats and Republicans were moved to respond to
President Johnson's voting initiative when he declared in his
State of the Union Address, ``We shall overcome.'' With the
leadership of individuals like Martin Luther King, Andrew
Young, Maryland's own Clarence Mitchell, Jr., Reverend Ralph
Abernathy, and Congressman John Lewis, laying the foundation
for what would become an increasingly important political
movement, Congress took up an historic challenge to end the
blight of racial discrimination in voting which had infected
the electoral process in parts of our country for nearly a
century.
Central to the act's remedial scheme is section 5, which
places Federal preclearance barrier against the adoption of any
new voting practice or procedure by covered States and
localities whose purpose or effect is to discriminate against
minority voters. For 40 years thereafter, the Federal courts
and the Department of Justice worked hand in hand to make this
promise of section 5, and all the provisions of the act, a
potent reality.
But in an ironic twist, it has been the very success of the
Voting Rights Act in not only protecting the right of African-
Americans to vote, but indirectly contributing to the election
of African-Americans to both State and Federal offices, which
now fuels in part the argument of some against its extension.
But we should not be misled to believe that the work of
protecting equal voting rights for all is done, just because
those States subject to the provisions of the act now have in
place the political infrastructure to guard against race-based
denial of voting rights.
Indeed, our most recent electoral history dramatizes the
difficulties still existing in the American electoral process.
Every 2 years, we learn of new allegations of electoral fraud
and abuse of the electoral process, from elections in small
municipalities to the highest-profile Federal offices.
Consequently, it has become even more important in this
post-civil rights age to maintain the integrity of the
elections process. Moreover, it is just as important to
recognize the value of section 4 of the act not just to those
States subject to its requirements, but to those who could
otherwise be aided by its provisions.
For example, Maryland is not a preclearance jurisdiction,
but is not totally unaffected by section 5 of the act. The
preclearance process at the Department of Justice has assisted
in illustrating discriminatory election processes and
districting plans, and works to set a bar for the redistricting
process and electoral process in non-covered States.
Voting rights questions usually generate a higher degree of
bipartisan consensus than other civil rights issues, such as
the debates over either affirmative action or quotas. The act
has had bipartisan support since its original enactment.
Without true bipartisan support in the House and Senate in
1965, it would not have passed. The last extension of the act
in 1982 would not have occurred without bipartisan
congressional efforts leading to the bill being signed by
President Reagan.
It is my hope that, as this Congress considers the renewal
of the 1965 Voting Rights Act, that this Committee's hearing
process, and the Senate process as well, will permit the voices
of minority communities from across our great Nation to not
only be heard, but listened to.
African-Americans, Latinos, and other ethnic or racial
minorities will not participate in an electoral system or
process that they do not trust or in which they feel their
votes do not count. Nor are they served by an electoral system
or process which takes their vote for granted because it has
become stagnant, self-serving, and monolithic.
Our Nation has made great strides since 1965, but there's
still work to be done. Our system is not perfect. And a failure
to reauthorize the Voting Rights Act would be to walk away and
leave important work unfinished. We must continue our efforts
to ensure a fair and just voting system for all of our
citizens. I've seen firsthand how easily a redistricting plan
or flawed ballot process can take away the voice of a vital
segment of our population.
Finally, quoting one of our Nation's most famous voting
rights advocates, Susan B. Anthony, ``In the first paragraph of
the Declaration of Independence is the assertion of the natural
right of all to the ballot; for how can the consent of the
governed be given, if the right to vote be denied?''
Thank you, Mr. Chairman, for the opportunity to testify
before you today.
[The prepared statement of Mr. Steele follows:]
Prepared Statement of the Honorable Michael S. Steele
``The Right of Citizens of the United States to vote shall not be
denied or abridged by the United States by any State on account of
race, color or previous condition of servitude and that the Congress
shall have the power to enforce this article by appropriate
legislation.''
At the dawning of the 21st Century, the words of the 15th Amendment
to our Nation's Constitution remind us of one of the most precious
gifts of liberty: to freely exercise your right to vote.
And yet, even the 15th Amendment--on its face--did not guarantee
that the ``right of citizens of the United States'' to vote would not
be denied as America emerged from the fog of civil war and into the new
reality that those individuals once enslaved under the constitution
were now entitled to exercise their rights as citizens under that same
constitution.
It would not be long, however, before certain of the states,
particularly in the south, responded to the enactment of the 15th
Amendment by devising a variety of tools to disenfranchise African
American voters for reasons of ``eligibility''. From literacy tests to
pole taxes, from property ownership to oral and written examinations,
States began to enact laws that ultimately ``denied and abridged''
African Americans their right to vote.
Moreover, when intimidation at the ballot box failed to curb the
African American thirst for full access to the rights guaranteed by the
Framers of the Constitution, more insidious and violent means such as
lynchings, fire bombs and murder were used to ``remind the Negro of his
place'' in American society. In our society, all rights are ultimately
protected by the ballot box, not the sword.
By virtue of the efforts to ``legally'' circumvent the dictates of
the 15th Amendment as well as the escalation in violence against
African Americans in Philadelphia, Mississippi, Selma and Montgomery
Alabama the promise of the Constitution for African Americans and many
other minorities--full and equal political rights--was like a
munificent bequest from a pauper's estate until the passage of the
single most important piece of civil rights legislation in American
history: the Voting Rights Act of 1965.
Both Democrats and Republicans were moved to respond to President
Johnson's voting initiative when he declared in his State of the Union
Address ``we shall overcome''. With the leadership of individuals like
Martin Luther King, Andrew Young, Maryland's own Clarence Mitchell,
Jr., Reverend Ralph Abernathy and Congressman John Lewis laying the
foundation for what would become an increasingly important political
movement, Congress took up an historic challenge to end the ``blight of
racial discrimination in voting . . . [which had] infected the
electoral process in parts of our county for nearly a century.''
Central to the Act's remedial scheme is Section 5 which places a
federal ``pre-clearance'' barrier against the adoption of any new
voting practice or procedure by covered states and localities whose
purpose or effect is to discriminate against minority voters. For 40
years thereafter, the federal courts, and the Department of Justice
worked hand-in-hand to make this promise of Section 5 a very potent
reality.
But, in an ironic twist it has been the very success of the Voting
Rights Act in not only protecting the right of African Americans to
vote, but indirectly contributing to the election of African Americans
to both State and Federal offices which now fuels, in part, the
argument of some against its extension. But we should not be misled to
believe that because that those States subject to the provisions of the
Act now have in place the political infrastructure to protect and guard
against race based denial of voting rights, whether intentional or
unintentional.
Indeed, our most recent electoral history, dramatizes the
difficulties still existing in the American electoral process. The 2000
and 2004 presidential elections, along with countless local and state
elections remain subject to allegations of abuse, fraud and civil
rights violations.
Consequently, it has become even more important in this post-Civil
Rights age to maintain the integrity of the election process. Moreover,
it is just as important to recognize the value of the Act not just to
those States subject to its requirements, but to those who could
otherwise be aided by the pre-clearance process. For example, Maryland
is not a pre-clearance jurisdiction but is not totally unaffected by
Section 5 of the Act. The pre-clearance process at the Department of
Justice has assisted in illustrating discriminatory election processes
and districting plans and works to set a bar for the redistricting
process and electoral process in non-covered states.
Voting Rights questions usually generate a higher degree of
bipartisan consensus than other civil rights issues, such as the
affirmative action or quota debate. The Act has had bipartisan support
since its original enactment. President Lyndon Johnson deserves great
individual credit for proposing and signing the Act; yet, without true
bipartisan support in the House and Senate in 1965, it would not have
passed. The last extension of the Act in 1982 would not have occurred
without a bipartisan congressional effort leading to the bill signed by
President Reagan.
It is my hope that as this Congress considers the renewal of the
1965 Voting Rights Act that this committee's hearing process and the
Senate process as well, will permit the voices of minority communities
from across our great nation to not only be heard but listened to.
African Americans, Latinos and other ethic or racial minorities will
not participate in an electoral system or process that they do not
trust or in which they feel their vote does not count. Nor are they
served by an electoral system or process which takes their vote for
granted because it has become stagnant, self-serving and monolithic.
Quoting one of our nation's most famous Voting Rights advocates,
Susan B. Anthony: ``in the first paragraph of the Declaration [of
Independence], is the assertion of the natural right of all to the
ballot; for how can `the consent of the governed' be given if the right
to vote be denied?''
Mr. Chabot. Thank you very much, Lieutenant Governor
Steele.
Mr. Garza, you are recognized for 5 minutes.
TESTIMONY OF JOSE GARZA, VOTING RIGHTS ATTORNEY, LEAGUE OF
UNITED LATIN AMERICAN CITIZENS
Mr. Garza. Mr. Chairman, Members of the Committee, first,
let me thank you for inviting me to participate in this very
important process for justifying the reenactment of the Voting
Rights Act and its special provisions.
The emphasis of my presentation today will be on the record
that we have discovered throughout our litigation process, as
it relates to the Latino community. The history of
discrimination is well documented with regard to the overall
history of the Nation. I think that one of the important things
that we need to focus on is that a lot of the same sorts of
activities that occurred throughout the South occurred in
Texas, but was targeted to the Mexican-American community.
For instance, it's documented through our process, through
our litigation that we've done, that the ``White man'' primary
that was enacted in Texas was aimed at the Mexican-American
community. And in the Winter Garden areas and in other areas of
Texas, the Mexican-American people were not allowed to vote in
the primary, but then were allowed to vote in the general
election, after the election had been determined.
Through our litigation--this is not a comprehensive
presentation that I'm going to be making; but rather,
anecdotal, from the litigation experience that we've done. In
the City of Corpus Christi, when we did a section 2 lawsuit in
1982, we discovered through a review of the minutes and of the
history of Corpus Christi that there had been severe
segregation for Mexican-Americans and African-Americans.
Theaters were segregated so that Mexican-Americans and African-
Americans were relegated to the balcony. Schools were
segregated in Corpus Christi, and throughout Texas.
In the Sherryland Independent School District, the lawsuit
that we did in 1982, we had testimony of the maintenance of a
Mexican school, as well as an Anglo school. And the testimony
was--is that the Mexican-American children would ride the
school bus, and would be dropped off at the elementary school,
and then herded onto a flatbed truck, and then driven off to a
Mexican school. And review of the minutes and of the records of
the school district found that there was severe under-funding
of the Mexican school.
And so we have that historical discrimination in Texas, as
we have uncovered through the number of lawsuits that we've
done. But many of these things were ongoing into the '80's. In
1984, we did a lawsuit against the City of Taft, which is a
small farming community outside of Corpus Christi on the coast
of Texas. And we found that in 1984, the City of Taft
maintained a cemetery that had been donated to the City of Taft
by the Ku Klux Klan. And that cemetery was segregated, so that
Anglos would be buried on one plot, Mexican-Americans would be
buried in a different plot, and then African-Americans in still
a third plot.
And we drove through that cemetery, and we found that on
the Anglo side of the cemetery it was manicured, had what they
call ``carpet grass,'' had a sprinkler system. And across a
dirt road was where the Mexican-American and the African-
American cemeteries were, and those were overrun with weeds,
the headstones had been knocked over, and some of the graves
were unmarked.
Now, this wasn't in 1954. This wasn't in 1964. This was
1984. And this was a cemetery that was run by the City of Taft.
It wasn't a private institution. It was a city-run, government-
run cemetery.
In that same town, the county health officer maintained a
clinic. And in that clinic he had segregated waiting rooms, in
1984: one waiting room for Anglos, and another waiting room for
African-Americans and Mexican-Americans.
So the history of discrimination, the sorts of things that
make it difficult for the minority community to participate in
the electoral process, we found overwhelming evidence that
those sorts of things that we traditionally know about that are
used to discriminate against people were also used to
discriminate against Mexican-Americans in Texas.
Now, one of the things that we did in 1979 as part of a
coalition of civil rights--Hispanic civil rights groups in
Texas, the LULAC and Mexican-American Legal Defense Fund and
others, is that we did a survey of county elected offices
throughout the State.
We surveyed over 200 counties. And each one of those
counties in 1979 we found had been gerrymandered--gerrymandered
so that it was not in compliance with the Voting Rights Act,
not in compliance with ``one person, one vote''; and in many
instances, diminished or prevented the election of Mexican-
Americans to the governing board.
After a series of lawsuits, and with the aid of section 5
and the ``one person, one vote'' provision, we were able to
almost double the number of county commissioners elected in
Texas. And that campaign went on through the mid-'80's.
Today, the need for section 5 continues. Racial bloc
voting, which is a primary obstacle to an unencumbered
participation by the minority community, is still alive and
well in Texas. This year, we had a Mexican-American candidate
run for mayor of the City of San Antonio, against an Anglo
candidate for mayor of the City of San Antonio. The Anglo
candidate won, and the racial bloc voting was extremely severe.
In our experience in Texas, LULAC and MALDEF and others,
we've found that the words of Frederick Douglass come into play
in matters of--``Power gives nothing without demand.'' And
without the Voting Rights Act and without litigation, minority
representation in Texas would be abysmal. Thank you.
[The prepared statement of Mr. Garza follows:]
Prepared Statement of Jose Garza
Mr. Chabot. Thank you very much, Mr. Garza.
Mr. Derfner, you are recognized for 5 minutes.
TESTIMONY OF ARMAND DERFNER, VOTING RIGHTS ATTORNEY, DERFNER,
ALTMAN & WILBORN
Mr. Derfner. Thank you very much, Mr. Chairman. It's an
honor and a privilege to appear here again, to try to help this
Committee in its crucially important work. And I thank the
Committee and the Members for their dedication to this task.
My experience, or my work with the Voting Rights Act does
go back, as the Chairman was kind enough to note. I'll be
talking here today about what I've learned in that period; but
especially about what I've learned in the most recent times.
Because even today, 40 years later, in the 21st century, I'm
still dedicated to the same tasks that the Committee is
focusing on.
And I should mention that, although I live in South
Carolina and most of my work today is in South Carolina, I also
work, and have worked, in many of the other covered
jurisdictions; have been involved in cases in Mississippi,
Alabama, Louisiana, Virginia, Georgia, Florida, and several of
the other States.
What that experience has told me is how important the
Voting Rights Act--the Voting Rights Act has been called the
most successful civil rights act ever passed, and that's
clearly true. It's true for several reasons.
Not only did it end disfranchisement and total denial of
the right to vote in the South, and eventually in the Southwest
and other areas; but it also has shown a remarkable capacity to
grow, to anticipate additional problems, new problems that came
up. And that has been principally through the mechanism of
section 4.
In the Voting Rights Act, Congress essentially said, ``We
know there are problems out there. We are going to deal now
with the problems that we can identify. But we are going to
pass a statute focusing on section 4 that will be capable of
adapting to new problems, because we know that when we
eliminate the problems of today, new problems will crop up.''
And so, in that respect, section 4 has been the mechanism
for keeping the voting rights alive, vibrant, and dynamic; and
through it, some of the other key provisions: section 5, the
preclearance provision; sections 6, 7, and 8, dealing with
Federal examiners and observers; and indirectly, section 203,
dealing with the rights of language minority voters to
assistance in casting their votes.
Because these provisions are temporary, it has been
necessary for Congress to reconvene periodically to consider
reauthorization, as you are doing today. That's a very healthy
thing, frankly, for a body politic to do, to take a look and
see if the laws of yesterday are still needed today.
What this Congress has learned and this Committee has
learned each time in the past is that, yes, in fact, although
there's been major progress, the problems also continue; and
therefore, each time, Congress has said, ``Don't stop now.''
And indeed, Congress has said on each of the prior occasions
that it could see new problems, or new nuances. And so each
time the law has not only been reauthorized, but has been
brought up to date by amendments or modifications to deal with
newly emerging problems.
I think you will find that the same thing is true today.
And without going into detail, I would just refer the Committee
to my statement in which I talk about some of the things that I
have been involved in personally, just in my own little corner
of the Nation, in South Carolina. And this is just in the past
decade or two; so we are not talking about the distant past.
And if you'll take a look, what I talk about are instances
of manipulating municipal boundaries to fence some citizens
out--basically, minority citizens; moving a registration office
to a less convenient location; campaigns by private citizens to
intimidate Black voters. The list goes on and on. And the
things that we used to see all the time, we still,
unfortunately, see.
Some of these are purposeful, without question; some of
them may not be. But the bottom line is still the same, that
it's the minority voters who get hurt, and our body politic is
injured.
I want to focus just on two particular things that I think
tell more than anything else what the problems are today, and
how telling they are. And so the first one, if you have a
chance, if you have my statement, attached to my statement is
an ad that ran in an election about a dozen years ago, between
a White and Black candidate for probate judge of Charleston
County.
And you can see, it was the White candidate's ad. And what
he printed was a picture of himself and a picture of his Black
opponent, making it very clear to every voter there--especially
every White voter--just who was White and who was Black. And as
campaigners yourself, you know you never publish your
opponent's picture or give him or her publicity, unless you
want to publish it to show something bad. And this White
candidate knew that in our community racial discrimination
sells, and the way to win elections is to divide the races.
The other indication is another exhibit that I brought. And
this is a very recent case that just ended earlier this year,
the case of United States v. Charleston County, in which the
Justice Department and myself and other lawyers representing
private litigants fought a 4-year battle to overturn the
discriminatory election method in Charleston County.
We won, and as soon as we won, that case--the legislature
adopted the exact same method for the school board. And if it
had not been for the Justice Department's objection under the
Voting Rights Act, if it had not been for the Voting Rights
Act, we'd be back in court again. A clear indication of the
value and importance of the act.
In conclusion--and again, I say there are many more
examples in my statement--you will, in these hearings, as the
days go forward, hear many tales of progress. And that's a
wonderful thing. But you'll also hear continuing problems. And
what we'll hear is that--and I know this--that the Voting
Rights Act and section 4 and the special provisions that it
brings have been vital to that progress.
Continuation of the act is vital to continuation of the
progress. And so my message to you today is: Don't stop now.
Thank you very much.
[The prepared statement of Mr. Derfner follows:]
Prepared Statement of Armand Derfner
Mr. Chairman and members of the subcommittee, thank you for the
opportunity to appear and testify concerning the critically important
legislation before you. I have had the privilege of testifying before
this subcommittee many times about the Voting Rights Act, going back to
my first time more than 30 years ago. I have always known that the
right to vote will be vigorously protected by this subcommittee, and I
note that the current Chair of the full Committee, Rep. Sensenbrenner,
was a strong champion of the Voting Rights Act at the time of the last
extension in 1982.
The Voting Rights Act was passed on August 6, 1965, against a
background of ninety years of failure to enforce the Fifteenth
Amendment. The original heart of the Voting Rights Act was Section 4,
which suspended literacy and understanding tests, and similar devices,
in certain ``covered jurisdictions,'' mostly in the Deep South.
The suspension of the tests was for five years. During the five
years, other remedies were in play, all based on the coverage formula,
or ``trigger'' contained in Section 4 of the Act, which was codified at
42 U.S.C. Sec. 1973b. The most important of which was Section 5, the
preclearance provision. In 1965, Congress knew that in the past,
whenever one type of discrimination had been blocked another had sprung
up to take its place, sometimes within twenty-four hours. Section 5 was
Congress's answer to this problem. Section 5 simply provided that in a
covered jurisdiction, no change in any voting law or procedure could be
enforced until the change had been precleared by the jurisdiction
through either a three-judge U.S. District Court in the District of
Columbia or the Attorney General. In order to gain preclearance, the
covered jurisdiction would have to show that its proposed change was
not discriminatory in purpose and not discriminatory in effect. Section
5 was deliberately drawn as broadly as possible, to cover changes that
could affect voting even in a minor way, because although Congress was
confident that there would be widespread attempts to evade the Voting
Rights Act, it could not predict exactly what forms those evasions
would take
In addition to the preclearance remedy of Section 5, Section 4
coverage also triggered oversight of the local registration and
election process by authorizing the United States Department of Justice
to send federal registration examiners and election observers to the
covered jurisdiction.
There were several provisions of the new Voting Rights Act that
were not limited to covered jurisdictions; the one that came to be most
important was Section 2, which generally barred discrimination in
voting on account of race.
The initial focus of efforts under the Act was on registration and
voting, through suspension of literacy tests. By 1970, as the initial
five-year special coverage period was winding up, the literacy test
suspension had resulted in registration of an estimated one million new
black voters in the covered states.
On the other hand, as black citizens overcame barriers to
registering and casting ballots, new barriers were being erected to
insure that, while blacks might vote, their favored candidates couldn't
win. Congress's faith in the ingenuity of those who had been relying on
discriminatory literacy tests was being quickly rewarded. A 1968 report
of the Civil Rights Commission perceptively reported a sharp growth in
vote dilution techniques as new methods of voting discrimination. The
report specifically singled out redistricting measures, shifts to at-
large elections, and changes in local government boundaries.
The other temporary remedies went through similar evolutions. Thus,
the need for federal examiners under Sections 6 and 7 declined as
registration barriers largely disappeared, but the need for federal
election observers under Section 8 increased as the focus of efforts
shifted from registration office difficulties to Election Day problems.
Rejecting the argument that Section 5 should be limited to measures
directly affecting the right to register and to cast a ballot, the
Supreme Court in 1969 held that the broad reach of Section 5 covered
these changes in ``systems of representation'' because, as the
reapportionment cases recognized, ``the right to vote can be affected
by a dilution of voting power as well as by an absolute prohibition on
casting a ballot.''
The trends perceived by the Civil Rights Commission in 1968 were
the beginning of an epidemic of dilution methods in the covered
jurisdictions. In fact, of the 1300+ changes to which the Attorney
General has objected to date, the vast majority have involved changes
in representational systems, or, to put it in plainer terms,
gerrymanders and related tactics: redistricting; changes to at-large or
multimember districts; annexations superimposed upon at-large election
systems; majority-runoff requirements; and anti-single-shot methods
such as full-slate laws and numbered places. Since an objection is the
equivalent of a court injunction, the large number of objections shows
how central the role of preclearance is in guarding the right to vote.
Furthermore, well over half of the objections have come since the
last reauthorization of the Act in 1982, which makes it plain that the
problem has not receded, and the need for preclearance continues today.
The story of the Voting Rights Act did not end in 1965; it was just
beginning. Because of its effectiveness in checking the growth of vote
dilution and the demonstrated need to continue its protections,
Congress extended Section 5 for five years in 1970, and for seven more
years in 1975. Both of the extensions in 1970 and 1975 were marked by
vigorous debate in Congress and by extensive hearings and reports
documenting the continuing abuses that justified the continued need for
the preclearance remedy. Increasingly, these abuses fell in the area of
vote dilution; and the 1975 hearings, reports, and floor debates are
especially filled with account after account of gerrymandering,
discriminatory at-large elections, improper municipal annexations, and
similar methods that too often proved effective in keeping the newly
registered black voters from exercising their votes effectively. The
administrative record under Section 5 demonstrated, though, that
effective weapons against dilution could be developed.
The actual mechanism of the extension was by amending and expanding
Section 4's coverage trigger, which had the effect of continuing
Section 5 (and Sections 6-8), and expanding their reach to include new
jurisdictions under an expanded coverage formula.
The 1975 amendments also added a new dimension to the Voting Rights
Act, in the form of provisions designed to protect certain language-
minority voters (American Indian, Asian American, Alaskan Native, and
Spanish-heritage) from discrimination. The key new provision, which is
temporary, required bilingual assistance in some areas where language-
minority voters are highly concentrated. In addition, a clause was
added to Section 2--the general ban on voting discrimination--
prohibiting voting discrimination on account of language-minority as
well as on account of race.
In 1982, the temporary provisions were extended again, both the
preclearance provisions of Section 5 and the language assistance
provisions of Section 203. The extension was accomplished, as in
earlier times, by amending Section 4, which contains the coverage
formula or ``trigger.'' The temporary provisions whose application is
``triggered'' by Section 4 coverage include not only Section 5
(preclearance) but also Sections 6, 7 and 8 (federal examiners and
election observers). (Also, of course, in 1982, Congress amended
Section 2 to provide that existing voting schemes would be invalid if
they ``result'' in discrimination without the heavy burden of proving
discriminatory purpose.)
The 1982 extension was for 25 years. It was accomplished by
specifying that period in the trigger formula of Section 4(a)(8) of the
Act, which is now codified at 42 U.S.C. Sec. 1973b(a)(8). This was
obviously a much more realistic view of how long it might take to
overcome voting discrimination. In a Nation where slavery lasted for a
quarter of a millennium, where another century went by with racial
segregation in full force before the Voting rights Act, where, in other
words, the Voting Rights Act sought to change nearly 20 generations of
human behavior, the problem could certainly not be solved in 5 or 10 or
17 years.
Indeed, I do not assume that the Congresses of 1965, 1970 or 1975
thought they were solving the problem of voting discrimination once and
for all. Rather, they were acting judiciously and cautiously to apply
an appropriate remedy for a limited time period, and calling for a
review at the end of that period to see if conditions had changed
sufficiently to end the statute. Each time before now, that review has
led Congress to decide that the time had not yet arrived to end the
statute. In fact, each time Congress has held extensive hearings and
compiled a detailed record of continuing problems not only justifying
extension of Section 5 and the other temporary provisions but adding
new remedies to address newly recognized problems. Two prime examples
are the permanent elimination of literacy tests nationwide--achieved in
two steps in 1970 and 1975--and the amendment of Section 2 to adopt a
``results'' standard for proving discrimination.
Another preeminent example of Congress' strengthening of the Act to
respond to new challenges is the addition of provisions protecting
language minority citizens, both by expanding the trigger formula in
section 4 and by enacting section 203 to provide assistance to language
minority voters at all stages of the voting process. So too with the
addition of section 208 in 1982, which allows voters who need
assistance--including elderly and handicapped voters--to receive
assistance from a person of their choice.
Each time Congress has reviewed the Voting Rights Act in the past,
it has been a learning experience for Congress and for the entire
Nation. The Act has fulfilled its role as a dynamic piece of
legislation not only designed to deal with existing problems, but also
well adapted to grow to meet new abuses as they arose. It is precisely
this ability of the Voting Rights Act to ``head off new problems at the
pass'' that has continued to give it such vitality. Today this
subcommittee has the opportunity and obligation to continue the Act's
protections as we face new problems in the unending quest to guarantee
the fully equal right to vote to all.
These hearings represent a new visit by Congress to this arena, and
based on my experience observing elections and voting since the 1982
extension, I believe Congress will come to the same conclusion in or
before 2007 as it has on its previous reviews: it is not time yet to
abandon the course.
I practice law in Charleston, South Carolina, and I have studied
voting and elections not only there but elsewhere in my state and in
the surrounding states. I know that the need for Section 5 is still
there and I would like to tell you some of what I have seen that tells
me so. This will be only one person's experience, and I am sure you
will hear in the coming weeks from others who have detailed accounts of
problems in other areas.
I also know there has been great progress, and I would not deny
that for a moment. But we started so far down that even with great
progress we have too far to go to be ready to abandon a protection that
is responsible for much of the progress.
Let me talk to you briefly about five sets of cases I have
personally been involved in my home state during the past two decades.
This is not ancient history: if I wanted to go into ancient history,
i.e., back into the 1950's or even the 1960's and 1970's, I would be
here all day. Rather, what I will talk about happened in the time since
the 1982 extension, indeed a lot of it in this very decade--the 21st
century.
I should also emphasize that my state is not alone. I do not
believe South Carolina legislators or officials are more likely to do
things that require the protection of the Voting Rights Act than their
counterparts in other nearby states. On the contrary, my experience
tells me that my state is on the same wave length as other
jurisdictions covered by Section 5, and that those other covered states
need Section 5 just as much as my state.
The problems I will talk about are some of the same types of
problems we encountered in earlier times--but they are still with us.
First, one of the problems that has plagued voters is manipulation
of city boundaries to maintain white control. This was the trick in
Tuskegee, Alabama, that produced the famous 1960 Supreme Court case of
Gomillion v. Lightfoot. A few years later, one of the earliest Supreme
Court cases under the Voting rights Act was Perkins v. Matthews, in
1971, a case of mine in which Section 5 blocked the city of Canton,
Mississippi from carrying out an annexation that added new white
residents to offset growth in black voting registration.
The problem continues. In 1987 I brought a lawsuit against the city
of Orangeburg, South Carolina, for the same thing. Orangeburg was once
a round town, that is, it had been formed, like many cities, by drawing
a circumference from a center point. As black voting grew, however, the
town officials responded by a series of annexations that turned the
town border into a jagged design of the most irregular shape. Our
lawsuit resulted in a decision which allowed the annexations but
minimized their discriminatory effect by changing from at-large
elections to elections by fairly drawn districts or wards. A similar
lawsuit in Hemingway, South Carolina, also blocked that city's
annexations, and the discriminatory nature of those annexations was
plainly shown when the city decided that rather than annex nearby areas
of black residents, it would simply undo the annexations of white
people. In other words, if it could not carry out its discriminatory
design, it had no use for these annexed areas.
A second type of problems frequently encountered is harassment of
poor or black voters at the polls. In a 1990 election for Probate Judge
of Charleston County, a black candidate faced a white candidate. There
was widespread intimidation of black voters at rural polling places,
especially black voters who needed assistance because they were old,
infirm or not fully literate. (And, by the way, it is no shame to need
help with casting a vote in our elections: if you saw some of the
Constitutional referendums on our ballot, you would need a Ph.D. to
read them or make heads or tails out of them.)
Despite the attempts to suppress black voting, the black candidate,
Bernard Fielding, won that election. However, the State Election
Commission, acting on unverified complaints from some of the same
people who had tried to intimidate the black voters, set the election
aside. We had to appeal to the South Carolina Supreme Court, which
fortunately upheld Fielding's election. One of the other features of
that campaign was the white candidate tactic of running an ad with his
black opponent's picture, to make sure that every white voter knew
exactly who was white and who was black.
That was not the last time we have seen intimidation of voters. In
a trial in 2002, which I will discuss in a few minutes, there was
testimony that attempts to intimidate black voters continues as a
frequent tactic.
We also have problems sometimes recognizing laws of the land that
protect voting rights. When you passed the National Voter Registration
Act in the mid-1990's (``Motor Voter law''), our then Governor simply
announced that the law did not apply in South Carolina, and our then-
Attorney General went to court to defend South Carolinas right to
ignore the law. Again, fortunately, the court--this time a federal
court--put a stop to that nonsense. The bill to the state, by the way,
was $150,000 in attorneys' fees to us, not counting the cost of the
State's own lawyers including a special private counsel retained to
augment its Attorney General's staff.
The presence of pervasive racial polarization among voters has not
abated. Studies by experts on all sides, including experts hired by the
State, and repeated judicial decisions, have highlighted the continuing
phenomenon. It is not just in elections here and there, but throughout
our State. In the most recent statewide redistricting case, a three-
judge court took extensive note of the persistence of racially
polarized voting, and how it affects the fundamental right to vote.
Among the court's findings, it said ``the history of racially polarized
voting in South Carolina is long and well-documented,'' and the court
cited the ``disturbing fact'' that there has been ``little change in
the last decade.'' These findings echoed earlier findings. In fact, I
am not aware of any one of the dozens and dozens of voting lawsuits in
our state in which any single expert has ever said we do not suffer
from racially polarized voting.
Going from the large-scale to the intensely local, even the most
minor, seemingly innocuous changes can be fraught with problems that
hinder voters. Last year, in Charleston County, the registration
office--which is also the location for ``early absentee voting'' and
resolving election day registration disputes--was moved from a central
location, well served by bus lines and adjacent to other government
offices--including public assistance agencies--to a remote location
nearly half a mile from the nearest bus service. What does that mean if
you don't have a car, especially if you are a minority voter--who
disproportionately don't own cars?
Perhaps the most notable case is a case that is hot off the
presses--a case that started in 2001 and ended with a Supreme Court
order less than a year ago. This case involved the method of electing
the County Council in Charleston County. The County Council members
were elected from nine separate districts until 1969, when there was a
sudden change to at-large elections for the nine members.
Unfortunately, when that change took place in 1969, it was
precleared under Section 5. The reason is not entirely clear, but that
was in the infancy of Section 5 and it was before the Supreme Court had
highlighted the dilutive effects of at-large elections.
In any event, in 2001 the U.S. Department of Justice, along with a
group of individual voters, brought a lawsuit to challenge the at-large
elections as racially discriminatory. I was privileged to be one of the
lawyers representing the plaintiffs in that case. The case was tried
for six solid weeks in 2002, and it resulted in a sweeping decision
overturning the at-large elections on the ground that system
discriminates against black voters on account of their race. The court
issued a 75-page opinion analyzing in minute detail what the role of
race has been and continues to be in our elections. Much of the
evidence supporting the decision came from the County's own expert
witness. The decision is a virtual primer about corrosive voting
discrimination in my state and my county today, in the 21st century.
Let me outline a few of the things this case tells us. First, there
is severely racially polarized voting, meaning that white voters rarely
vote for candidates favored by black voters, especially if those
candidates are black themselves. This was based on analysis not of old
elections, but elections during the past 15 years, by experts for all
sides.
This pattern has had a predictable result. In a county with a
population more than one-third black, only three of the 41 people
elected to County Council since 1970 were minority, including only one
in the last decade. In that last decade, all nine black candidates
supported cohesively by black voters were defeated in the general
elections, as well as 90% of the 21 preferred candidates of whatever
race. For example, black voters did best in 1998, but even in that
year, the two white candidates they supported won but the two black
candidates they supported lost.
Nor were these results accidental. In addition to demographic
factors that are relevant in judging voting discrimination, there was
powerful evidence of intimidation and harassment of blacks at the polls
during the 1980s and 1990s and even as late as the 2000 general
election. There was also evidence of race baiting tactics used by
political strategists.
Perhaps the most telling sign of voting discrimination in
Charleston County elections was the Court's finding that racial appeals
of a subtle or not-so-subtle (i.e., overt) nature were used in election
campaigns. The most telling of these examples were white candidates
running ads or circulating fliers with photos of their black
opponents--sometimes even darkened to leave no mistake--to call
attention to the black candidates' race in case any white voter
happened to be unaware of it.
This tactic is the surest sign of an atmosphere where voting
discrimination flourishes; in locales where the tactic is used, this
tactic says local politicians know race ``sells,'' and that is why they
use it. How much more would they use race to buy and sell elections if
the Voting Rights Act were not in place?
After the district court's decision, the County nevertheless
appealed, and the decision was resoundingly affirmed by the Fourth
Circuit in an opinion by Judge J. Harvie Wilkinson. Still the County
did not give up, but petitioned the U.S. Supreme Court, which refused
to hear the case, and it finally ended with a new system designed to
provide equal rights to all voters of all races.
One important note: the County spent over $2,000,000 of taxpayers'
money in its defense of the discriminatory method of electing County
Council members.
Another telling note: the Charleston County School Board has an
election method that is similar but not identical to the County
Council. While the County Council case was going on, the South Carolina
General Assembly, led by legislators from Charleston County, tried to
change the school board method to adopt the most discriminatory
features of the County Council. The then-Governor vetoed the first
attempt, but the General Assembly tried again--even after the method
had already been thrown out by the federal court. This time, the new
Governor signed this discriminatory bill. Fortunately, Section 5 of the
Voting Rights Act covered this voting change and when it was presented
for preclearance under that Section, preclearance was denied. If
Section 5 had gone out of existence, this bill would have become law
even though its precise twin had already been found to be racially
discriminatory.
I cannot imagine clearer proof of the need to extend the trigger of
Section 4 of the Voting rights Act so that Section 5 and other
``temporary provisions'' will continue to protect voters.
Striving for full equality in all areas especially the right to
vote, is an obligation for every American. When we have such an
effective protection in the form of the Voting Rights Act, we should
not rush to abandon that protection prematurely simply in the hope that
equality will come.
Finally, I want to say a word about the Constitution. I realize
that Congress is not the only branch of government that will consider
the Voting Rights Act, and I know there has been speculation about
whether continuing the section 4 trigger will still be constitutional.
I have no doubt that doing so is constitutional. I litigate in other
covered states as well as South Carolina, and am familiar enough with
some of those states to be confident that the record presented to you
in these hearings will show that the types of problems I have outlined
here are widespread in the covered jurisdictions. Based on the record I
expect you will see, there will be ample justification for continuing
to provide special remedies in the covered jurisdictions, based on the
eminently rational and well-tailored coverage formula of the section 4
trigger. Moreover, while section 4 contains the trigger that imposes
the special remedies, section 4 also contains a carefully tailored
bailout, described by my fellow witness Mr. Hebert, which is
essentially a ``reverse trigger'' that a covered jurisdiction can use
to end coverage. With a rational coverage formula, with a record
continuing to justify that formula, and with a nuanced bailout in
place, the Voting Rights Act is exactly the kind of congruent and
proportional remedy that satisfies the Constitution.
Thank you. Again, I salute the Members and the excellent staff for
placing this crucial issue in the limelight. I would be pleased to
answer any questions.
ATTACHMENT
Mr. Chabot. Thank you very much, Mr. Derfner.
Our final witness this morning will be Mr. Hebert. And
you're recognized for 5 minutes.
TESTIMONY OF J. GERALD HEBERT, FORMER ACTING CHIEF, CIVIL
RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE
Mr. Hebert. Thank you, Mr. Chairman. Chairman Chabot,
Representative Nadler, and distinguished Committee Members,
thank you for the opportunity to appear before you today. I'll
focus my comments on the bailout provisions of the Voting
Rights Act, but I would at least like to put them in one broad
context; which is that I do support an extension of the act,
and I believe the bailout provisions, as they presently exist,
are largely working.
I'm also here today in my capacity as legal counsel to a
number of the jurisdictions that have already bailed out, or
are in the process of bailing out; including, among others,
Augusta County, Virginia, and Kings County, California.
Now, we know that the Voting Rights Act is the crown jewel
of civil rights. What we saw prior to 1965 is that case-by-case
approach to voting discrimination problems was not working. So
Congress took a unique and fresh approach, by enacting the
preclearance provisions of the Voting Rights Act, which set up
a means by which jurisdictions that were subject to a certain
coverage formula, and therefore are called covered
jurisdictions, would be required to submit voting changes for
preclearance.
Now, the jurisdictions at that time could also bail out
from coverage under the Voting Rights Act. And indeed, between
1965 and '70, several of them did. And what they had to do to
bail out at that time was they had to show that they had used
no test or device--meaning like a literacy test, a poll tax,
and so on--in a discriminatory manner for at least 5 years.
Well, as of 1965, most of the covered jurisdictions were
not able to meet that test, of course, because they had used
literacy tests and poll taxes and other tests or devices in a
discriminatory way for 5 years. And they also met the other
part of the coverage formula, that less than 50 percent of
their voting-age population was registered, or less than 50
percent had turned out to vote.
Political subdivisions at that time were not allowed to
bail out, either. If you were a political subdivision within an
entirely covered State--like Virginia, for example, my home
State--and you wanted to bail out, the State was the only
entity that could bail out in a complete covered State.
There were some States, as there are now, where you only
had certain parts of the State that were covered.
Representative Conyers mentioned his home State of Michigan,
where they have a couple of townships, for example, that are
still covered. In jurisdictions like that, that are in a State
that's only partially covered, the political subdivisions could
bail out.
Between 1965 and '70, Alaska, three counties in Arizona,
Elmore County, Idaho, and Wake County, North Carolina, all
bailed out. Nash and Gaston County, Representative Watt, were
not allowed to bail out. The Justice Department opposed that in
those early years.
In 1970 to '75, when Congress extended the act again, you
had a couple of jurisdictions. The State of Alaska bailed out,
as did the State of New York. And New York ended up getting
recovered under the Voting Rights Act, when it was found that
they had in fact used a test or device in a discriminatory
manner.
And my home State of Virginia in 1974 sought a bailout. And
they were denied a bailout because there was evidence that the
setting up of inferior schools for minority voters in fact
disabled minority voters from passing the literacy test. And so
therefore, the literacy test in Virginia had a discriminatory
impact, and they did not meet the bailout provisions.
Now, Congress in 1982 dramatically changed the bailout
provisions. And I'll move quickly through this, but
essentially, as a result of the '82 amendments, in the last 25
years you've now had a bailout standard that is totally
different, and not focused on a time limit of 5 years showing a
non-discriminatory test or device or so on.
Instead, you have to show that within the last 10 years you
have used no test or device; that there have been no final
judgments or settlements that you've entered into as a
jurisdiction because it's been alleged that you discriminated
on the basis of race, color, or membership in a language
minority group in your voting and election practices; that
there haven't been any Federal examiners assigned to your
jurisdiction; that you've timely submitted all the voting
changes to the Justice Department for preclearance; that the
Justice Department has not objected to any of your changes, or
the D.C. court denied any of your changes.
That's what you have to show over a 10-year period. And
quite frankly, for nearly, I would say, 90 percent of all the
covered jurisdictions today, they could show at least that
much.
Now, you also have to show when you're seeking the bailout
that, if you've had any dilutive procedures, that you've in
fact, in your voting system--that you've eliminated those. You
have to show that you've engaged in constructive efforts to
increase minority participation.
You have to show that, if there has been any intimidation
or harassment of minority voters--and I will tell you today
that there still is harassment and intimidation of minority
voters--that you've made constructive efforts to eliminate it;
and that you have engaged in other constructive efforts to
expand the opportunity to register and to cast ballots; and
that you've included minorities in running the election
process, whether they work in the voter registration office or
as poll officials or on the electoral board.
As someone mentioned earlier, I think that the
jurisdictions that I have represented--and I have represented
all nine of the jurisdictions that have bailed out since the
'82 amendments--the jurisdictions have been able to meet that.
Now, why, though, have there not been more? The simple
answer to that--and I'll use this point really to sum up--is
that I think a lot of the jurisdictions don't really know about
the bailout provisions and how easy it is, frankly, to meet
them if you've engaged in non-discriminatory voting behavior.
And that's the key part of that answer; is that
jurisdictions today want to be able to demonstrate that they
have a good record, that they offer equal opportunity. And when
they find out that the bailout provisions are available to show
that and to show their citizens that we do have an open
process, they've pursued it, and they've been proud of it.
The bailout provisions are really an incentive for the
covered jurisdictions, which have a presumption that they
discriminate, to show that, in fact, they have a clean record.
That's what you intended when you enacted the bailout
provisions; and thus far, they've worked very well.
I've submitted to you a chart. I'm going to ask permission
to submit written testimony at the conclusion of this hearing.
I'll do it within a prescribed time period, Mr. Chairman, to
extend my remarks and give you additional information on what I
agree with Mr. Watt, Congressman Watt; that this is perhaps one
of the more central parts to show that the Voting Rights Act
today is not only constitutional, but that it in fact works to
end discrimination. And that's what it was intended to do. And
it's a law that we're all very proud of. Thank you very much.
[The prepared statement of Mr. Hebert follows:]
Prepared Statement of J. Gerald Hebert
Good morning Chairman Chabot, Rep. Nadler, and distinguished
committee members. Thank you for the opportunity to testify before you
today. I will focus my comments on the bailout provisions of the Voting
Rights Act (VRA), but would like to state at the beginning that the Act
should be extended and the bailout provisions be retained largely in
their present form.
The marches, protests, and struggles of the civil rights community
culminated in 1965 with the passage of the VRA. Individual adjudication
of disputes had been ineffective in securing minority citizens an equal
opportunity to cast their ballots. Congress took a fresh approach,
establishing a formula subjecting certain jurisdictions to
administrative or judicial preclearance of changes affecting voting,
and setting up a means for those jurisdictions to bailout out of
coverage at a later date.
A jurisdiction is covered, and required to preclear all changes
effecting voting, if it (1) maintained a test or device as a
prerequisite to voting as of one of three fixed dates, and (2) as of
that date either less than 50 percent of its voting age residents were
not registered to vote or less than 50 percent of its voting age
residents actually voted.
Between 1965 and 1982, these covered jurisdictions could bailout of
coverage by demonstrating in an action for declaratory judgment before
a three-judge panel of the United States District Court of the District
of Columbia that no test or device had been used in a given number of
years. Political subdivisions, such as counties, were prohibited from
bailing out separately if they were located within a state that was
covered in its entirety.\1\
---------------------------------------------------------------------------
\1\ City of Rome v. United States, 446 U.S. 156, 167 (1980).
---------------------------------------------------------------------------
In 1982, Congress enacted two major revisions to the bailout
provisions. First, political subdivisions could bailout separately from
their covered jurisdictions. Second, the bailout criteria were changed
to ``recogniz[e] and reward[] their good conduct, rather than
require[e] them to await an expiration date which is fixed regardless
of the actual record.'' \2\
---------------------------------------------------------------------------
\2\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46,as reprinted in
1982 U.S.C.C.A.N. at 222.
---------------------------------------------------------------------------
Under the current bailout formula, a covered jurisdiction must
first demonstrate that in the past 10 years: (1) no test or device has
been used to determine voter eligibility with the purpose or effect of
discrimination, (2) no final judgments, consent decrees, or settlements
have been entered against the jurisdiction for racially discriminatory
voting practices, (3) no federal examiners have been assigned to
monitor elections, (4) there has been timely submission of all voting
changes and full compliance with Sec. 5, and (5) there have been no
objections by the Department of Justice or the District Court for the
District of Columbia to any voting changes.\3\ Second, the jurisdiction
bears the burden of proving at the time bailout is sought that any
dilutive voting procedures have been eliminated, constructive efforts
have been made to eliminate any known harassment or intimidation of
voters, and it has engaged in other constructive efforts at increasing
minority voter participation such as, expanding opportunities for
convenient registration and voting and appointing minority election
officials throughout all stages of the registration/election
process.\4\
---------------------------------------------------------------------------
\3\ 42 U.S.C. Sec. 1973b(1)(A-E) (2005).
\4\ 42 U.S.C. Sec. 1973b(1)(F) (2005).
---------------------------------------------------------------------------
The current bailout formula was an important step towards achieving
the goals of the VRA. It gave covered jurisdictions an incentive to
move beyond the status quo, and to improve accessibility to the
electoral process for minorities. As the Senate Judiciary Committee
report stated, ``the goal of the bailout . . . is to give covered
jurisdictions an incentive to eliminate practices denying or abridging
opportunities for minorities to participate in the political process.''
\5\
---------------------------------------------------------------------------
\5\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 60, as reprinted
in 1982 U.S.C.C.A.N. at 238.
---------------------------------------------------------------------------
Congress should examine whether there is evidence that the bailout
provision actually ``provide[d] additional incentives to the covered
jurisdictions to comply with laws protecting the voting rights of
minorities, and . . . improve[d] existing election practices.'' \6\ I
believe it has.
---------------------------------------------------------------------------
\6\ Id., at 222
---------------------------------------------------------------------------
The Supreme Court has indicated a strong Congressional record
demonstrating the existence of discrimination is required when
legislating in this area.\7\ In 1970, 1975 and 1982, Congress
commissioned studies to collect evidence on voter discrimination. In
1970, the Act was extended because while there was a significant
increase in black voter registration, there was continued racial
discrimination in the electoral process (e.g., switching from single-
member districts to at-large elections, redrawing boundaries, minority
candidates prevented from running, illiterate voters being denied
assistance, racial discrimination in selection of poll officials,
harassment, intimidation) and black voter registration rate lagged
behind white rate.\8\ Similarly, in 1975 minority registration rates
improved, but still lagged behind whites and restrictions on
registration, casting a ballot, running for office, intimidation and
vote dilution still existed.\9\ In 1982, the Commission on Civil Rights
report documented continued resistance by individuals and local
jurisdictions to increased minority participation in elections and to
complying with the VRA. What evidence about all this exists today?
Congress has a duty, whether it extends the Act or not, to answer this
question.
---------------------------------------------------------------------------
\7\ City of Boerne, 521 U.S. 507, 525 (1997).
\8\ Paul F. Hancock and Lora L. Tredway, The Bailout Standard of
the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law.
379, 393-394 (1985).
\9\ Id. 397, fn. 93-98.
---------------------------------------------------------------------------
I have served as legal counsel to all of the jurisdictions that
have bailed out since the 1982 amendments to the VRA. All of them are
in Virginia and are listed in Appendix A.
Local jurisdictions with which I have worked have expressed to me
several advantages that they derive from the current bailout formula.
For instance, by requiring them to prove a ten-year record of good
behavior and to demonstrate improvements to the elections process for
minorities, these covered jurisdictions are afforded a public
opportunity to prove it has fair, non-discriminatory practices. Second,
while bailouts come with some costs (on average about $5,000 for legal
expenses), it is still less costly than making Sec. 5 preclearance
submissions indefinitely. Finally, once bailout is achieved local
jurisdictions are afforded much more flexibility and efficiency in
making routine changes, such as moving a polling place.
For all of its advantages, however, only a few jurisdictions have
bailed out. Some argue Sec. 5 should be retained because jurisdictions
have not been achieving bailout on a mass scale, and that this is
evidence there are still many problems with the election processes in
these jurisdictions.\10\ This assumes that jurisdictions are applying
and being denied, when really the problem is that jurisdictions are
just not applying. (See Appendix A). Why is this?
---------------------------------------------------------------------------
\10\ Vernon Francis et al., Preserving a Fundamental Right:
Reauthorization of the Voting Rights Act, Lawyers' Committee for Civil
Rights Under Law, at 11, June 2003.
---------------------------------------------------------------------------
One reason might be that smaller localities just do not know the
bailout option is available to them, or it seems too complicated or
time consuming. For the vast majority of jurisdictions, the process is
relatively straightforward and easy. I would recommend that when the
legislation is reauthorized, Congress suggest the Department of Justice
provide more information to localities about how to achieve bailout and
encourage them to do so.
Another reason posited for the lack of bailouts is that the
criteria are thought to be too difficult to meet. That is not the case.
Most of the factors to be demonstrated are easily proven for
jurisdictions that do not discriminate in their voting practices.
One factor, proving Sec. 5 compliance, is often cited as the most
difficult to meet because opponents to bailout are likely to be able to
find some small change that was not precleared. But this is not an
obstacle either.
There are several reasons why demonstrating Sec. 5 compliance
should be retained as part of the bailout formula. First, DOJ will
allow a jurisdiction that inadvertently failed to submit a few changes
to submit those changes for preclearance at the time bailout is sought,
and thus the preclearance is nunc pro tunc. Second, the legislative
history shows that Congress thought that for changes which ``are really
de minimis'' the ``courts and Department of Justice have used and will
continue to use common sense.'' \11\ While this process of going back
and making these Sec. 5 submissions can be time-consuming, it ensures
full compliance with the Act and is faithful to the language and spirit
of the law.
---------------------------------------------------------------------------
\11\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 48, as
reprinted in 1982 U.S.C.C.A.N. at 226.
---------------------------------------------------------------------------
While most jurisdictions who have sought bailout since 1982 have
had to make few such submissions, (See Appendix A) some county
officials know that political subdivisions, such as towns and cities
within the county, have not made any submissions. This affects the
County's ability to obtain an expedited bailout. In King's County,
California, for example, 40-50 submissions have been required on behalf
of localities, some of which do not even exist anymore. Furthermore,
King's County does not have authority to compel the localities'
compliance with Sec. 5.
Several amendments were proposed in 1982 which would have made it
easier for states to bailout without each of its political subdivisions
bailing out, and each was rejected.\12\
---------------------------------------------------------------------------
\12\ H.Amdt. 266 to H.R. 3112, 97th Cong., 1st Sess., offered Oct.
5, 1981 would have allowed a state to bailout if two-thirds of its
political subdivisions bailed out, and H.Amdt. 272 to H.R. 3112,
offered Oct. 5, 1981 and S.UP.Amdt. 1029 to S. 1992, offered Jun. 18,
1982, both would have allowed a state to bailout if the state met all
the criteria, even if its political subdivisions did not. Each was
rejected, because the 15th amendment places the burden of protecting
the electoral franchise on the States.
---------------------------------------------------------------------------
A better solution may be to allow towns, cities and other local
governmental units within a covered county to bailout independently.
Then, once each has bailed out, the county can bailout without having
to make submissions on behalf of each town or city within its borders.
In this sense, the town-county relationship mirrors the current county-
state relationship that exists under the current bailout law. The
county would still need to make submissions for any changes it makes
until it seeks bailout.
To consider the merits of this, Congress should examine Sec. 5 in
covered states to see if allowing a bailout to jurisdictions within the
state has proven to be problematic from an enforcement or compliance
perspective. If a county can bailout now in a state like Virginia that
is completely covered (and they can and have done so), has exempting
parts of a state from preclearance obligations or other special
remedial provisions caused any problems from an enforcement
perspective? That would shed light on whether Congress might want to
allow a local government to bailout within a covered county, or vice
versa.
A third criticism of the bailout provision relates to the VRA
coverage formula. (``Places bound by the preclearance provision are
identified by a formula based on minority participation in election
more than three decades ago.'' \13\) The bailout provisions, on the
other hand, were designed to ``relate to the jurisdiction's recent
record of behavior rather than to a mere calendar date.'' \14\ To the
extent that only jurisdictions that meet the coverage formula need to
seek bailout, the bailout provisions suffer from whatever overbreadth
or other potential problems exist with regard to the coverage formula.
---------------------------------------------------------------------------
\13\ George F. Will, VRA, All of It, Forever?, Newsweek, Oct. 10,
2005.
\14\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, as reprinted in
1982 U.S.C.C.A.N. at 222.
---------------------------------------------------------------------------
Some argue the current coverage formula may be unconstitutional
because of a lack of ``congruence and proportionality between the
injury to be prevented or remedied and the means adopted to that end.''
\15\ Sec. 2 of the 15th Amendment to the United States Constitution
grants Congress the authority to enforce Sec. 1, namely ``the right of
citizens of the United States to vote shall not be denied or abridged
by the United States or any State on account of race, color, or
previous condition of servitude.'' After passage of the Voting Rights
Act in 1965, the Supreme Court held in South Carolina v. Katzenbach,
383 U.S. 301, 326 (1966), that Congress had the remedial authority
under the 15th Amendment, Sec. 2 to pass parts of Sec. 4 of the VRA.
Again, in 1980 the Supreme Court stated in City of Rome v. United
States, 446 U.S. 156, 177, that preclearance ``is an appropriate method
of promoting the purposes of the Fifteenth Amendment, even if it is
assumed that Sec. 1 of the Amendment prohibits only intentional
discrimination in voting.''
---------------------------------------------------------------------------
\15\ City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
---------------------------------------------------------------------------
Congress' authority to enact remedial legislation under the
Fourteenth Amendment was later reviewed in City of Boerne v. Flores,
521 U.S. 507, 519 (1997), and the Court determined that Congress'
remedial authority extends only to enforce prevention of
unconstitutional actions, not to make substantive change in the
governing law. Id. at 520 (holding Congress did not have the remedial
authority to pass the Religious Freedom Restoration Act). Some thought
this holding signaled potential problems for the VRA's
constitutionality, yet just two years later the Court stated in Lopez
v. Monterey County, 525 U.S. 266, 282-283 (1999), ``[l]egislation which
deters or remedies constitutional violations can fall within the sweep
of Congress' enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into
legislative spheres of autonomy previously reserved for the states.''
Thus, the remedial provisions of the VRA, including the bailout
provision, must be proportional to the injury to be prevented.
Considering the bailout provision applies to jurisdictions based on a
coverage formula that most seem to agree is outdated, one solution
would be to revise the coverage formula. It's perhaps the hardest issue
facing the Congress. This is an area the Congress should give serious
consideration and study to.
A solution might be crafted along the following lines: a
jurisdiction is covered if (1) there is a disparity between the
percentage of registered minority voters or percentage of minority
voters who cast ballots in the last presidential election on the one
hand, and the actual voting age population percentage of minorities on
the other; or (2) the jurisdiction provided English only election
materials and assistance and more than five percent of the voting age
residents are members of a single language minority.
This formula would seemingly target the remedy toward the
potentially discriminatory conduct in a more direct way than a formula
based on the results of a presidential election conducted thirty years
ago. Jurisdictions which meet this formulation would be presumptively
covered and subject to Sec. 5 preclearance. They may seek bailout from
coverage immediately, but would be required to meet the same bailout
factors that currently exist.
When devising a new formula, it is important to keep in mind the
original purpose of the coverage formula: ``The coverage formula of
section 4(b) was designed to limit the Act's most stringent remedies to
those areas of the country where congressional investigation had
disclosed the most prevalent and pervasive degree of racial
discrimination in voting.'' \16\ Congress has done a magnificent job
each time it extended the Act in the past to gather detailed
information on how the Act was working. It should once again undertake
that effort.
---------------------------------------------------------------------------
\16\ City of Rome, brief by Appellees pg 44 (citing H.R. Rep. No.
439, 89th Cong., 1st Sess. 8, 12-14 (1965); S. Rep. No. 162 (Pt. 3),
89th Cong., 1st Sess. 13-16 (1965); Sheffield, 435 U.S. at 119-120
---------------------------------------------------------------------------
To this extent, and to the extent that Sec. 5 preclearance had
worked as evidenced by the steady submissions of changes, the sharp
reductions in objections (See Appendix B), and the practical standards
for bailout that currently exist, we are headed toward a day when there
will be no discrimination that affects the ability of any person to
register to vote or to cast a ballot, and our democracy will be better
for it.
Thank you.
ATTACHMENT 1
ATTACHMENT 2
Mr. Chabot. Thank you very much. Without objection, those
materials will be included in the record.
Mr. Hebert. Thank you.
Mr. Chabot. We want to thank all four of the members for
their testimony here this morning. Now the Members up here have
5 minutes each to ask questions. And I yield myself 5 minutes
for that purpose.
I'd ask all of you this question, if you could--and since
I'm asking all four, if you could keep it within a confined
range, so we could get everything in--how do you see the state
of minority voting rights now, as compared to 1965? And how
much of that would you say is directly or indirectly
attributable to the Voting Rights Act? And I guess we'll start
with you, Lieutenant Governor.
Mr. Steele. Thank you, Mr. Chairman. Just very quickly, I
think if you look at where we were and where we are, you can
see dramatic progress has been made, as has been indicated by
the testimony here this morning. But what I tried to caution in
my comments was, you know, yeah, we've gone down the road and
we've gotten rid of some of the ugly, but we still have some of
the bad out there to deal with, as well; as well as we've got
some good.
So the process of enfranchising individuals is a living
process. It's an ongoing process that I think reflects the
vibrancy and the diversity and the changes that occur within
any given community.
Right now, our country, for example, is dealing with
increased immigration. And I know in my State of Maryland, and
particularly Prince George's and Montgomery Counties, we've
seen a very significant increase in Hispanic and other minority
communities who have migrated to this part of our Capital
region. So how do we address their ongoing issues and concerns
relating to enfranchisement, as they become fully American
citizens and want to fully participate?
So I think we have to stay focused on the evolution and the
continual vibrancy of this process. And this type of hearing
and this process, in and of itself, helps us do that.
Mr. Chabot. Thank you. Mr. Garza?
Mr. Garza. I think there has been a dramatic improvement in
the level of representation in the Latino community in Texas
and throughout the Southwest, and in large measure because of
the Voting Rights Act--section 5 and section 2.
I think there's still a lot of work that needs to be done.
And we find examples every day of continuing applications of
discriminatory features and of things that could be improved in
this thing.
For example, the 2001 redistricting plan from Texas was
objected to by the Department of Justice because it
retrogressed and eliminated four Latino districts. All of those
were put back into place as a result of the letter of objection
and as a result of litigation. So that's 2001, when that
redistricting plan was adopted for the State House of
Representatives.
And another thing that we find continually when we file
section 2 cases is there is a large percentage of non-
compliance, or a substantial amount of non-compliance in local
jurisdictions. We inevitably will find in reviewing records--
for example, in the Roscoe Independent School District, we
sued, challenging the at-large election system in Roscoe. And
in discovery and in reviewing the minutes of the school
district, we found that they had adopted a numbered post
provision for the at-large election system, and had never
submitted it for preclearance.
So there's a number of instances like that in almost every
situation where we've filed these at-large challenges, that we
find non-compliance. And so I think there's still a major
problem with that, as well.
Mr. Chabot. Thank you. Mr. Derfner?
Mr. Derfner. There's no question that the right to vote is
much more real today--incredibly more real--than it was in
1965. At the same time, we have to recognize the Voting Rights
Act has been central to that progress.
And I liken it to a cold. If I get a cold, the doctor gives
me an antibiotic, and he warns me,``Keep taking this antibiotic
for a full week, or a full 10 days. And even if your symptoms
appear to be lessening after four or 5 days, don't give up on
the antibiotic, because your cold is not over just because the
symptoms are not quite as visible.'' And I think that's what we
have here. The Act has been critical to the progress we've
made, and it remains critical to keeping on the progress.
Mr. Chabot. Thank you. Mr. Hebert?
Mr. Hebert. Just very briefly, Mr. Chairman, simply put,
the Voting Rights Act has been responsible for bringing about
the presence in boards, commissions, and other public bodies,
of minority citizens taking their rightful place. And but for
the Voting Rights Act, that would not have happened.
I have seen in my own experience, particularly, I recall my
days in the Justice Department, when I was in Selma, Alabama,
where Dallas County, Alabama--Selma being the county seat--was
roughly 50 percent Black in its voting-age population. And due
to the fact of extreme racially polarized voting and the fact
that there was a long history of discrimination, obviously,
against Black voters in Selma, Black voters were never able to
elect a single county commissioner or school board member to
the school board or to the county commission; even though they
were roughly half of the population. And that didn't come about
until nearly 1990.
And it came about because the Justice Department spent
years litigating the case that went back and up and down to the
11th Circuit like a yo-yo several times. But eventually, single
member districts were there, put into place. Some of the
districts were majority Black, and Black voters chose to elect
a Black candidate to those. And so for the first time in
history in Selma, Alabama, the Voting Rights Act finally
brought fruit, and Black voters were able to have
representatives of their own choice governing them.
Now, that story has been repeated across the Nation in
jurisdictions and small towns. And the Voting Rights Act has
been singularly responsible for empowering minority voters to
achieve those magnificent results.
Mr. Chabot. Thank you very much. My time has expired. The
gentleman from New York, Mr. Nadler, is recognized for 5
minutes.
Mr. Nadler. Thank you, Mr. Chairman. I'd like to ask the
members of the panel one question, so we can clear this up for
the benefit of the Supreme Court. Starting with Mr. Haybert, is
it? Haybert?
Mr. Hebert. Hebert.
Mr. Nadler. Hebert. Starting with Mr. Hebert, and going
this way, do the members of the panel, based on their own
experiences with elections in their home jurisdictions, believe
that the protections of the Voting Rights Act--and most
especially, the protections of the various sunsetting
provisions of the Voting Rights Act that we're considering--are
still vitally needed? And I mean vitally needed today; not 40
years ago.
Mr. Hebert. The answer is, yes, Mr. Nadler. And if I would
add one comment, you'll see I've attached a listing of all the
objections that the Justice Department has entered in some
States, covered States--Mississippi, Virginia, South Carolina,
to name a few. Some will argue that the fact that there are
maybe half as many objections in the last 10 years as the prior
10 years to that, that that's evidence that we no longer need
section 5.
In fact, the opposite is true. In fact, this shows that
jurisdictions now understand that they can't retrogress
minority voting rights when they make changes, and they've made
less of them.
Mr. Nadler. And it's working.
Mr. Hebert. And it's working.
Mr. Nadler. Thank you. Mr. Derfner?
Mr. Derfner. Mr. Congressman, yes, I agree wholeheartedly.
And in fact, another way to do it is to pay attention in our
local communities to the--or our State legislatures--to the
proposals that are floated, and that never even get off the
ground because it's understood that they will not get
precleared. And so, in fact, the deterrent effect of the
preclearance provision, just for one, is a critical one. And
half the time, we never see what might happen and what would
happen if we didn't have section 5.
The same thing, frankly, is true with the Federal Observer
Program under section 8 of the act. The mere possibility of
Federal observers coming to some elections, and the fact that
observers have been sent to certain elections and certain
polling places, gives us cleaner elections than we would have,
and guarantees the protections. So we can't do without it.
Mr. Nadler. Thank you. Mr. Garza?
Mr. Garza. Absolutely. And to echo some of the comments,
the experience that we've had is that discussions in the
governing boards have turned to, for instance, ``Well, you
know, we've had single member districts all these years. We
have to keep redistricting every decade. It's costing us a lot
of money. Why don't we do away with single member districts?''
And inevitably, the discussion goes to, ``Well, you can't,
because of the Voting Rights Act.''
Mr. Nadler. Thank you. Lieutenant Governor Steele?
Mr. Steele. Thank you. Absolutely, it is relevant today, as
it was in 1965, and I would say more so. And I think our recent
history, electoral history, at the Federal and State levels
would dictate that we not only renew and put back in place
those--keep in place those provisions, but to the extent
necessary, enhance and augment them to address some of the
ongoing concerns that have been identified since 2000. So I
think it's very relevant.
Mr. Nadler. Thank you. Well, I think we're making the
record for the Supreme Court. Mr. Chairman, I will at this time
yield the balance of my time to the gentleman from Georgia, who
has worked so very hard on these issues.
Mr. Scott of Georgia. Thank you very much, Mr. Nadler. And
I thank this entire Committee for your kindness and
graciousness in extending me this opportunity to participate;
not being a Member. I really, really appreciate it. Thank you
very, very much.
I'd like to ask this question to each of the panelists, and
if you could respond to it. For jurisdictions covered by
section 5 of the Voting Rights Act, any change in the State's
or political subdivision's electoral process must be submitted
for Federal preclearance, to prove that such a change does not
have the purpose or effect of denying or abridging a citizen's
right to vote.
As you know, in my home State of Georgia there's a bill
that has been passed, and is now law, that requires everyone
who votes in person to first show State-issued identification
photo card. Let me ask each of you this question. How does this
law not have the purpose or effect of denying or abridging a
citizen's right to vote; since most of the people without the
photo driver's license or State-issued photo identification
cards are people of color; or the poor, Black and White; or the
disenfranchised; and the elderly?
And I'd like for each of you to respond. Mr. Steele,
especially, I think you've had a case where you've vetoed--or
your State has recently vetoed--an ID bill. I think you have
some familiarity with that. And of course, Mr. Garza, you're
representing from your perspective for Hispanics, and yours as
a voting rights attorney. Especially, Mr. Hebert, yours as a
former Acting Chief of the Civil Rights Division of the Justice
Department.
Because, to show the irony of this, just yesterday, a
Federal judge in the Rome Northern Circuit in Georgia ruled
that, in fact, this very law that was precleared by the Justice
Department is, in fact, discriminatory and, he said in his own
words, unconstitutional and acted as a poll tax--one of the
most vicious forms of denying individuals the vote.
Each of your responses, that would be very, very important,
because I think Georgia now becomes the poster State for why we
need this Voting Rights Act extended.
Mr. Chabot. The gentleman's time has expired. The
witnesses, we'd ask you to be relatively brief in your answers.
I would also note that it's really more specifically a HAVA
issue, rather than what's covered in this hearing. But
nonetheless, the question has been asked, and can be answered.
Mr. Steele. I'd just very quickly say that, yes, we did
recently have to deal with this issue. With respect to that
bill, there was additional language in there that the Governor
found particularly onerous. It wasn't just specifically the
idea of having a voter ID card.
But this is a debate that many States are having right now.
Particularly, in the State of Maryland, we had a very
contentious 1994 election for governor, in which there was
fraud and abuse: in which voters who had long since been dead
voted; in which voters who were not registered to vote, voted.
And so there has to be in place in the system some type of
checks and balance.
And I think the debate and discussion we need to rightly
have is what makes sense. If I go to the bank right now to cash
a check, regardless of my status in life, not only do I have to
present an identification card, I get fingerprinted. So there
are checks and balances throughout our system. And I don't see
how or why this process--which is the most precious process
that we can engage in--should not be protected as much as
possible from fraud and abuse, at any level, so that every
citizen's vote not only is counted, but is counted fairly.
And so I think it's an open debate. It's an open question.
The States are having it. The Congress is certainly going to be
engaged in it. And probably, at some point, the Supreme Court
is going to ultimately judge which way is right and which way
is wrong, vis-a-vis the Constitution.
But it's an important debate we're having in our State. And
I look forward to having it again come this January when the
session starts up in our legislature, because I know it's one
of the issues we'll be tackling.
Mr. Chabot. If the other witnesses would like to answer the
question, they can. But, please, if you would be brief in your
answers, because we're trying to keep this within the 5-minute
rule.
Mr. Derfner. Mr. Congressman Scott, I have no doubt that
that bill was flagrantly unconstitutional, flagrantly illegal,
flagrantly discriminatory. And that's exactly what Judge Murphy
found.
And I think the importance of that is, how did the bill get
that far? What does it show about the propensity of a covered
jurisdiction to do things that it knows are discriminatory?
And frankly, what can we learn in the rest of the Nation,
where there's a rush to judgment in many States to perhaps deal
with fraud--which I acknowledge is something we need to
prevent; but they aren't being careful enough to deal with it
in a way that will still protect and preserve the right to vote
of people, especially poor people that don't drive cars, that
don't necessarily carry ID cards with them around. And so that
case is a beacon for telling us that we are reminded we have to
protect the right to vote.
Mr. Hebert. And if I may just add one other comment to
that, you brought up the fact that the Justice Department did,
in fact, preclear that bill, and it's very troubling.
I mean, I think, as the section chief there, there was an
effort made in South Carolina to impose a college diploma
requirement to hold certain offices. And we found when we
examined that, that that would fall more harshly on the
shoulders of minority citizens, who hadn't achieved that same
education attainment level. And this is a similar thing.
It always amazes me, I guess, as a voting rights lawyer, to
see that we're taking a fundamental right like the right to
vote and, instead of trying to expand it, we're trying to put
conditions on it. We've done that throughout the history of our
country. White males were allowed to vote; then property owners
were allowed to vote; people only over 21, which we eventually
lowered to 18. We eventually made people pass literacy tests;
poll taxes; good character clauses.
Instead of expanding the right to vote, the State of
Georgia tried to restrict the right to vote. And even though
there are some cases of legitimate concern about fraud, as the
Lieutenant Governor has pointed out, well, if the voting rights
community is going to have to show a demonstrated record of a
need to extend voting rights discrimination, anti-
discrimination provisions, why shouldn't those who are claiming
that there's fraud have to also show factually--not just come
in and make allegations, but to show a record, so that their
legislation is tailored to meet that? Seems to make sense to
me.
Mr. Garza. Just very briefly, LULAC is extremely concerned
about any restriction that has that sort of requirement for
voting. We understand the need to make sure that elections are
fair and clean. Our experience, though, has been that when you
target election fraud measures, they're usually targeted at the
minority community in a far greater extent than they are the
non-minority community.
For example, we had a congressional race not too long ago
in Houston, where 1,700 White voters voted in the Democratic--
in the Republican primary, and then switched to vote in the
Democratic run-off where an Hispanic was running against an
Anglo candidate. That's illegal in Texas. That's a felony.
Nobody was prosecuted.
I represented a young man in Uvalde, Texas, who assisted an
illiterate voter secure an absentee ballot, a mail-in ballot.
And because he was illiterate, he could only make a little
mark, and had to be witnessed. Well, in Texas, a voter can only
witness two--I mean, I'm sorry, one application for absentee
ballot, or mail-in ballot, for an illiterate voter. My client
witnessed two, and he was prosecuted. The DA dropped the
charges when I sent him a copy of the 1983 action that I would
file if he continued.
But that's the sort of enforcement that we see in Texas;
when much of the fraud is actually committed by officials, not
by voters.
Mr. Chabot. The gentleman's time has expired. The Chair
would just note for the record--and again, I don't want to get
too far afield of what the purpose of this hearing is--but I'm
all for expanding voting as widely as possible; but not
expanding it to the extent that people who are deceased are
allowed to vote. And so I have to concur with some of the
comments that the Lieutenant Governor made, that I think it's
in no one's interests to have fraud occurring.
And as we're doing that, we certainly need to make sure
that we're not trampling upon anybody's rights, whether they be
minorities or otherwise. But there is voter fraud going on, and
that's just unacceptable. We need to come to grips with that, I
believe.
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes.
Mr. Franks. Well, thank you, Mr. Chairman, and thank you,
panel members. Lieutenant Governor Steele, it's always good to
see you again, sir.
Mr. Hebert, in the covered areas, or those areas where
there is special scrutiny due to past violations of the Voting
Rights Act, do you see in your official capacity, or just
studies that you have, that the complaints are increasing or
decreasing on the Voting Rights Act?
Mr. Hebert. Well, in the jurisdictions that have bailed
out, certainly, they are decreasing. In fact, in many of those
jurisdictions, the bailout process is an opportunity really for
the election officials to look at their entire voting and
election system, top to bottom, and ensure that every aspect of
it is non-discriminatory, and that in fact they are making the
opportunities for people--minorities, of course, focused in
that--to register and to cast ballots.
So in the bailout jurisdictions, the opportunities were
actually increasing, as the Justice Department found when they
consented to them.
Mr. Franks. And in your position, do you see--if you had to
point out any particular practice that would be the most
egregious, that goes to the heart of why we have the Voting
Rights Act in the first place, that would be the most egregious
in discriminating against people or trying to place undue
burden on their right to vote, what would your perspective be
on that?
Mr. Hebert. I think today the biggest area that needs
reform is redistricting, frankly. I think you see
gerrymandering taking place at all levels; and oftentimes,
aimed at keeping certain potential candidates off the county
commission or the city council or school board. So I see
intentional--a lot of times intentional fragmentation of the
minority community, so that they cannot elect a candidate of
choice. I think that would probably be one of the principal
things I see.
Problems that deal with method of election, I think,
continue to be the largest ones; because they in fact
ultimately preclude minority citizens from taking their
rightful place, oftentimes, you know, in a governing situation.
Mr. Franks. Well, I might ask you to help me understand
that a little bit better, how they preclude that.
But my last question would be to the entire panel, and
starting with you, Mr. Hebert. If you were going to rewrite
some part of the Voting Rights Act retrospectively, if you,
knowing what you do now, could go back the 40 years and say,
``We want to put this in place because now we know what the
trends were,'' how would you change--what things would you do
differently? And I'll start with you, Mr. Hebert. And just if
everyone could take a shot at that.
Mr. Hebert. Well, that's a very interesting question,
actually, Congressman Franks. I would say that one thing I
would do, if I had had the foresight to do it--and I admit that
I would not have; and you didn't either, unfortunately--is that
I would have spelled out in section 5 that the purpose prong of
section 5 bars unconstitutional discrimination, and not just
retrogressive intent, as the Supreme Court has now limited it.
I would have said that if a county or a State or a city
makes a voting change, and they intend to discriminate against
minority voters, even if they don't make them worse off in the
process, but they intend to discriminate against them and keep
them in their place, that that ought to be unconstitutional--
which it is--and it ought not to be precleared under the Voting
Rights Act--which, unfortunately, today is not the law, as a
result of the Supreme Court's decision in Bossier Parish v.
Reno.
So that's certainly one change I would retrospectively go
back and make. Mr. Derfner was around for the original '65 Act,
so I'll let him add another---- [Laughter.]
Mr. Franks. Mr. Hebert, just briefly, related to the
previous thought that you brought forth, the part that you
think related to the electoral redistricting, what part of that
would you point out as having been something that is
discriminatory toward minorities of any kind?
Mr. Hebert. Well, when a redistricting plan is drawn by a
jurisdiction, whether it's at the State level or the local
level, they have a whole host of data available to them, down
to the finest detail. And as a result of highly sophisticated
technology, we can actually look down and see which blocks
within a State voted Democratic, which ones voted Republican,
where the minority voters are, the Hispanics, and how they're
trending in terms of their voting patterns. And we can
calibrate districts down to almost a tenth of a percent, as to
what the likely outcome is going to be on election day.
And so I think that what happens in a lot of jurisdictions
is that, as particularly the Latino community has been growing
in so many jurisdictions across the country, and there are
issues there with regard to their turnout because a number of
people may not be citizens, or may not turn out to vote, that
in fact there are calculations that are actually made in ways
that are intended to keep Latino voters from electing their
preferred candidates and to create districts in which they can
elect their candidates of choice.
Mr. Chabot. Thank you. The gentleman's time has expired.
I would just note for the record, we've been advised that
we're supposed to have a series of votes at about quarter till
twelve; which is a little over 20 minutes from now. I think we
have four Members here still to question. The timing works out
well, as long as we stay on schedule to, you know, some extent.
The gentleman from Michigan, Mr. Conyers, the distinguished
Ranking Member of the full Committee, is recognized for 5
minutes.
Mr. Conyers. Thank you, Chairman Chabot.
This has been a very good discussion. I'm not going to be
able to talk with the Lieutenant Governor about some voter
rights measures--three of them--that the Governor vetoed; one
of them making it illegal to suppress the vote through the
dissemination of false or misleading information. But I'd like
to get some additional information about that, and how you came
out on that position.
Mr. Steele. How I personally came out?
Mr. Conyers. Yes. I would like to find out where--I mean,
you didn't veto them, but I'd like to know, because of your
strong support for the Voting Rights Act, and the fact that in
Baltimore particularly there were lots of--there have been a
number of problems that have come to my attention. My staffer
happens to live in the State. And so we'd like to get those for
the record, since you're here and with us today.
I'd like to begin our discussion, as brief as it is, with
the whole issue of bailout. I assume that the trigger is
reasonably supported by most people. But I think that the
bailout circumstances--which I think have been expedited by
now. You don't even--you can do it through just filing. And I
think that the bailout is where we should put our discussion.
And I'd like to begin with Mr. Derfner, who has been here--
I've seen him around here--from the beginning of the act. And
then I'd like to go to Mr. Hebert and the rest of our
witnesses.
What do you think we need to do with bailout? Is it in--has
it gone through enough changes so that we can support it in its
present circumstance, Mr. Derfner?
Mr. Derfner. I think--I think we have, and I think it does.
The debate in 1982 took place because at that time the bailout
had been very infrequently used. And in effect, the only
bailout at that time available was for jurisdictions that could
sort of show that it was a mistake to include them from the
beginning. So there was no way that a jurisdiction, once
covered, in those days could bail out simply by improving and
doing better.
The 1982 bailout--and I think Mr. Hebert's cases have shown
this--has shown that a jurisdiction can bail out effectively,
and it can do it as much by showing that it has a good record
today, it has worked to have a good record, and it has worked
to do those things that are the goals of the act. So in that
regard, I think the bailout has been fine.
Mr. Hebert tells me that no jurisdiction that has tried to
bail out has been unable to do so, so it seems to be working.
And unless there is more of a record put on about specifics, I
think the bailout as it is is just fine, and fully supports the
constitutionality of the Voting Rights Act by giving a safety
valve, or almost a reverse trigger, to correspond to the
trigger of section 4.
Mr. Conyers. Mr. Hebert?
Mr. Hebert. I would agree with that. Let me also add, Mr.
Derfner is correct, there have been--not a single jurisdiction
has attempted to bail out since the '82 amendments and been
turned down by the Justice Department or a Federal court.
When you think about the bailout provisions, they are just
the right stuff. They go exactly to the issues that Congress
was concerned about when it enacted the Voting Rights Act in
the first place.
When you think about the criteria that you have to
establish in order to bail out, you have to show that you
haven't lost a court case in which you've been found guilty of
discriminating on the basis of race or color or membership in a
language minority group. You have to show that you've actually
taken constructive measures to increase minority voter
participation. You have to show that you've complied with
section 5's preclearance requirements. You have to show that
not only have you made your submissions, but you haven't
proposed anything that discriminates against minority voters or
makes them worse off. All of the kinds of things that
jurisdictions should have to show in order to escape.
And quite frankly, I think they're perfectly tailored to
meet the nature and extent of the violation; which is exactly
what the Supreme Court has said repeatedly in this area.
Mr. Conyers. Mr. Garza, do you have anything to add?
Mr. Garza. No, I think I would echo what they've----
Mr. Conyers. Surely. Lieutenant Governor?
Mr. Steele. I would echo the same.
Mr. Conyers. Thank you. Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much. If I could ask for
unanimous consent for 1 minute, just to follow up on a question
that the distinguished Member, Mr. Conyers, just asked and that
you were talking about, Mr. Hebert, relative to California,
apparently, there's four counties out there where some folks
have indicated that they think the process is difficult and
cumbersome and has a low probability of success; as opposed to
other areas which have done quite well. Could you comment on
that point of view, and what your opinion would be? Again, very
briefly.
Mr. Hebert. Yes, I would say that, you know, I only
represent one county in California, Kings County. And I believe
that in Kings County the officials there recognize that the
Voting Rights Act plays an extremely important part of
empowering racial and ethnic minorities.
I don't think--I think that the one issue for Kings County,
which is presently seeking a bailout, or at least has notified
the Justice Department that it is seeking a bailout, that they
have an issue with is the fact that in order to get a bailout
they have to show not only that they have made all their
section 5 submissions, but all the dozens and dozens and dozens
of jurisdictions within the county--often, that they have no
control over, and who conduct their own elections sometimes--
that they have also made all of their section 5 submissions, or
engaged in non-discrimination.
And you know, that's proving to be a challenge for us,
because we've now found that there are 40 to 50 of those out
there within the county that have never been submitted for
preclearance.
Mr. Chabot. The gentleman from New York is recognized
briefly here.
Mr. Nadler. Very briefly. I just want to ask a follow-up
question to this. What you just said intrigued me. So Kings
County has a problem with the fact--the difficulty of getting
40 or 50 jurisdictions locally to be perfect, also. My question
is, if Kings County bailed out, wouldn't those local
jurisdictions automatically also be bailed out?
Mr. Hebert. Yes, they would.
Mr. Nadler. That's why you have to make sure that they're
okay, too?
Mr. Hebert. That's correct.
Mr. Nadler. Okay.
Mr. Hebert. That's the current state of the law.
Mr. Nadler. Thank you very much.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. Feeney. Thank you, Mr. Chairman. I've appreciated all
the witnesses. Lieutenant Governor Steele, thank you for being
here. I have a series of some quick questions for you to, I
think, clear some matters up. You don't support proposals that
would require some form of ID or proof of who you are that
would be either unaccessible or unaffordable, unavailable to
any particular group; is that right?
Mr. Steele. No, absolutely not. I can look to the case of
my mother, 76 years old, a senior citizen. What we did was, we
went out and got made up just an identification card--name,
address, you know, Social Security number--that she could use.
Mr. Feeney. And to the extent that a State deliberately had
a burden or a gate to get certain forms of legitimate ID to
discriminate against certain voters, that would violate the
15th amendment and the Voting Rights Act.
Mr. Steele. Absolutely. I mean, we're not talking about
identification that would be onerous to obtain.
Mr. Feeney. But do you think this State may have an
interest in preventing some of the 10 to 12 million people that
are in America illegally from participating in Americans'
elections?
Mr. Steele. It goes to the question of checks and balances
in the system to make sure that the fraud and abuse that has
been documented, at least in my State, over the last 10 years
does not occur.
Mr. Feeney. And in Florida we have ``snow birds'' that are
fortunate enough to spend the summer months in the North often,
and they spend four, 6 months in the South. We know that
thousands of them traditionally vote twice for President.
Mr. Steele. We have had examples of that in the State of
Maryland, where we have citizens of the District of Columbia
who are domiciled there but registered to vote in Maryland, and
tend to vote in both jurisdictions on election day.
Mr. Feeney. And notwithstanding a person's passion to
participate in the democratic process, do you believe that,
once they are dead, they ought to quit participating?
Mr. Steele. I think that would be a good thing.
Mr. Feeney. Okay. Thank you. I really appreciate that.
Mr. Hebert, I want to congratulate you on the extraordinary
record. You've represented 100 percent of the applicants who
have been successful in the bailout provision. And not only
that, but your average fee of about $5,000 seems to be one of
the most affordable waivers of any Federal program that I know
of. I don't know of any lawyer in the country that can brag
about that success rate for such an affordable proposition.
You point out that some folks are either just not aware
that they're eligible to apply for bailout, or that they are
intimidated because of the prospects. I mean, after all, the
way that section 4 is stated, to prove that you haven't
violated section 5 is almost the impossible burden of proving
the negative, if you take it to the extreme.
But what you point out is that a failure, for example, to
have precleared ahead of time a change in the past 10 years can
be remedied at the time of application, and that if there have
been certain de minimis failures to comply with the Voting
Rights Act, that they have been waived.
Can you elaborate on that, as we decide whether to reenact
section 4? Do we need to change some of the provisions of the
bailout provision, or do you just think we need to do a better
job of educating the eligible jurisdictions that they can
participate?
Mr. Hebert. Thank you, Congressman Feeney. I would
encourage the Congress to ask the Justice Department to make
bailout information more available to the covered
jurisdictions, and that they will work with them to that end.
But in terms of the actual de minimis changes, what that
provision was really intended to do was this. If a jurisdiction
is a covered jurisdiction and wants to bail out, they have to
show a good record of having--consistent record of having made
all of their submissions to the Justice Department for
preclearance of their voting changes, to show non-
discrimination.
The Justice Department is not concerned if a State or a
city or a county or a school board inadvertently forgot to
submit something that is not controversial and is--and could be
labeled de minimis; even if it involves moving a polling place,
which can sometimes not be de minimis.
And the Justice Department and Congress spelled this out
the last time when it amended the bailout provisions in '82--
should really bring a heavy dose of common sense to the
application of the bailout process. And in fact, that's what
the Justice Department has done.
In the table I gave you, for example, in Shenandoah County,
Virginia, one of the counties that I represent, there were 31
un-precleared changes that we found in the course of that
review with the Justice Department. We went back and submitted
those. They were precleared nunc pro tunc. And basically, the
county was then eligible and the Justice Department considered
it.
Mr. Feeney. And then, finally, in Katzenbach, the Supreme
Court ruled that the Voting Rights Act was an exceptional power
exercised by the Congress, and therefore had to be limited and
would be subject to scrutiny. You pointed out that the bailout
provisions, like other provisions of the Voting Rights Act, has
to be proportional to the remedy to be resolved.
In your opinion, is the Voting Rights Act, as it applies
today in America, still proportional in a constitutional sense
to the remedy to be addressed?
Mr. Hebert. Yes, both the preclearance provisions and the
bailout provisions, in my view, are constitutional to that
respect.
Mr. Feeney. Thank you. I yield back.
Mr. Chabot. Okay. Thank you. We'll go ahead to Mr. Scott
now. If Mr. Watt is going to come back, then we'll have to come
back afterwards. If not, then we could conclude before these
votes. So the gentleman from Virginia is recognized for 5
minutes.
Mr. Scott of Virginia. Thank you, Mr. Chairman. Mr. Hebert,
you're familiar with Virginia politics. It seems to me that the
burden of bailing out may not be the reason that a lot haven't
bailed out. I'd imagine that a lot of cities wouldn't want to
offend their minority population by adding questions about
motives and all that, and would just--where the remedy may be
worse than the cure--I mean the remedy may be worse than the
disease. And they just go through the perfunctory kind of
changes they go through.
Rather than get into a racially divisive situation with
their community, I suspect a lot of jurisdictions just don't
want to. And a lot in my district, I would imagine, wouldn't
want to spoil whatever race relations they have by going
through that fight and, however easy it may be, would just
leave well enough alone and like that. Do you agree?
Mr. Hebert. Yes, I do, because, you know, Congressman
Scott, you make a good point here; which is that when
jurisdictions are considering bailout, the first thing that
I've recommended to my clients to do is to meet with the
minority community and see what they think about it.
And in fact, you can use the minority community, engage the
minority community to find out more about the bailout process
and what their concerns are about the community in the area of
voting. So you can actually use it as a constructive tool.
Mr. Scott of Virginia. But generally, the reason a lot of
them may not be trying to bail out is they just decide they
don't want to go through that process and spoil their race
relations.
Did I understand your testimony to say that it's somewhat
absurd to preclear a plan that is a clear section 2 violation?
Mr. Hebert. No, I didn't say that. It used to be the law--
at least, according to Justice Department regulation--that the
Justice Department would not preclear voting changes that
provided a clear violation of section 2. The Supreme Court
struck down that particular interpretation in Bossier Parish I.
What I said was that, if you engage today in
unconstitutional discrimination, and you enact a voting change
that basically keeps minorities in their place but doesn't make
them worse off, that's unconstitutional; but that's going to
get precleared.
Mr. Scott of Virginia. But it's a violation of section 2.
Mr. Hebert. It is a violation of section 2, but it puts the
burden on the minority.
Mr. Scott of Virginia. And isn't it absurd to preclear a
section 2 violation and force the community to go to court,
rather than just fail the preclear it?
Mr. Hebert. Well, it's an area of the law that should be
fixed.
Mr. Scott of Virginia. Okay.
Mr. Hebert. It should be fixed.
Mr. Scott of Virginia. The present law is absurd. That's
what I mean.
Mr. Hebert. Yes, it is.
Mr. Scott of Virginia. Yes.
Mr. Derfner. Congressman Scott, I would just say I think
that is a situation in which, with all due respect to the
Supreme Court, I think they got Congress' intent wrong. And I
think Congress made plain what it meant. And I think that may
be one of the instances in which this Congress ought to engage
in restorative conduct, to reassert what it did the first time
around.
Mr. Scott of Virginia. One of the things--just don't have
much time left--the question of whether we ought to go
nationwide with the Voting Rights Act, how can you narrow--is
it possible to narrowly tailor a Voting Rights Act protecting
rights of minorities to vote, and try to go nationwide? Is that
possible?
Mr. Hebert. This was considered back in 1982 and, in my
judgment, was properly rejected, because you really want to--
and because the provisions are special remedial provisions, you
really want to target them to where the problems are. And
making them simply nationwide creates all kinds of over-breadth
problems that I think Congress should avoid.
Mr. Scott of Virginia. My time is just about up. If someone
could submit for the record the need for observers and
examiners, I'd appreciate it. And Mr. Chairman, I would yield
back so that my colleague could have time before we vote.
Mr. Chabot. I don't know if there is time, really.
Mr. Watt. Mr. Chairman, if you could just recognize me for
1 minute.
Mr. Chabot. The gentleman is recognized for 1 minute.
Mr. Watt. I think I can do what I need to do. I really had
a question that I don't think we can do justice to in the time
here, but I'd like to submit it technically for the record and
get a follow-up answer, if it's all right with the Chair.
The general concept is what we need to do possibly to
expand section 5 jurisdiction. And one of the--and so you all
can be thinking about it, I'll give it to you in precise
language. But the concept would be the possibility of expanding
section 5 to include jurisdictions that have since 1982 been
found guilty of violating the Voting Rights Act.
But I think the question and the responses probably need to
be well thought out and articulated better than I'm
articulating them here. So if it would be better--I think it
would be better for me to just do it in the record.
Mr. Chabot. So noted. The gentleman will do that, and the
Committee would respond. We appreciate that.
Thank you very much for your time. We've got to head over
to the floor. You've been extremely helpful at this point in
time. We do have hearings next week, as well, but not with this
particular panel.
And the gentleman from New York is recognized. We already
did the 5-minute thing.
Mr. Nadler. Yes, we already did it.
Mr. Chabot. Okay. If there's no further business to come
before the Committee, we're adjourned. Thank you very much.
[Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Linda T. Sanchez, a Representative
in Congress from the State of California, and Member, Subcommittee on
the Constitution
I thank Chairman Chabot and Ranking Member Nadler for convening
this second hearing on reauthorization of the Voting Rights Act, and
for allowing me to be a guest on this panel.
As the only Latina on the House Judiciary Committee, today's
hearing regarding ``Section 4: An Examination of The Scope and Criteria
For Coverage Under The Special Provisions of the VRA'' is significant
to me and thousands residents in my home state of California.
This hearing is vital because section 4 prohibits the use of
literacy tests and English-only tests in voter eligibility
determinations. For decades in voting jurisdictions nationwide,
English-only tests have been a subtle but insidious method used to keep
eligible Latino and other language minority voters from the polls.
My home state of California is one of the 16 states in the Union
that are presently covered by section 4.
With California and the nation experiencing annual Latino
population growth, it is vital that section 4 cover all jurisdictions
there is a confirmed history of discrimination that may adversely
impact Latino voters.
The current section 4 criteria are stringent but may benefit from
some revisions.
Presently, jurisdictions are covered based on whether literacy
tests or other devices were in place in 1964, 1968, or 1972, and
whether voter registration and participation in covered jurisdiction
was less than 50 percent in those years.
The continued reliance on these decades-old criteria raises the
obvious question whether the jurisdictions presently covered by section
4 should continue to be, and whether new jurisdictions are being
overlooked.
Likewise, I think it is critically important that we closely
consider the ``bail out'' provisions that allow jurisdictions with
proven histories of discrimination to end their Voting Rights Act
scrutiny.
It is commendable to reward jurisdictions for reversing their
histories of discrimination. However, the preservation of all citizens'
right to vote should take first priority.
Section 4 is a critical provision of the Voting Rights Act for
protecting Latino and other minority voters from literacy and English-
only tests.
It is a provision that must be reauthorized and if necessary
amended to ensure all applicable jurisdictions are covered.
I hope that today's witnesses will inform the Subcommittee on the
importance of section 4 and make recommendations to improve its scope
and application.
Again, I thank the Chairman and Ranking Member for their courtesy
and allowing me to join the Constitution Subcommittee at this important
hearing.
I yield back.
Prepared Statement of the David Scott, a Representative in Congress
from the State of Georgia
Thank you, Mr. Chairman and members of this subcommittee for the
opportunity to be here today during this important hearing to examine
the scope and criteria for coverage under the Voting Rights Act. The
legislation was one of the most important, if not, the most important
legislation enacted by Congress in the 20th century. The legislation
protects the voting rights of not just African-Americans, but each and
every citizen of this wonderful country. The Voting Rights Act is so
important that it has been amended and sections that were due to expire
extended in 1970, 1975, 1982, and 1992. Again, it is time to reexamine
this legislation and its impact on several states including my own
state of Georgia.
I am particularly concerned with the effectiveness of the
preclearance provisions in section 5 of the Voting Rights Act that
require states, including Georgia, with a history of discriminatory
voting practices to obtain preclearance for any proposed changes to
their election laws or procedures. The fact that Georgia's obviously
discriminatory Voter ID law was precleared by the U.S. Department of
Justice underscores the continued need for the judicial remedies of the
Voting Rights Act to be extended. A citizen's right to vote must not be
left to the political winds of which party controls the Justice
Department, but should be enshrined in our federal laws and protected
by judicial review.
Therefore, I will work closely with my colleagues in the House and
Senate to ensure that this legislation continues to protect the rights
of all Americans. I look forward to hearing from my colleagues, legal
and constitutional scholars, civil rights activists, and the community
during the hearings being held by this committee.
Thank you.
Appendix to the Prepared Statement of Armand Derfner: United States v.
Charleston County (316 F.Supp.2d 268)
Appendix to the Prepared Statement of Armand Derfner: United States v.
Charleston County (365 F.3d 341)
Appendix to the Prepared Statement of Armand Derfner: United States v.
Charleston County (125 S.Ct. 606)
Appendix to the Statement of J. Gerald Hebert: Revised Prepared
Statement
Presentation on Behalf of Merced County, California, Concerning
Reauthorizations of Sections 4 and 5 of the Voting Rights Act
Supplement to November 4, 2005 Presentation on Behalf of Merced
County--Information re Yuba County, California and Why the Bailout
Criteria are Unduly Onerous for California Counties
Prepared Statement of Chellie Pingree, President and CEO, Common Cause
Chairman Chabot and Ranking Member Nadler:
Thank you very much for holding the recent round of hearings on the
provisions of the Voting Rights Act which are up for reauthorization in
the 109th Congress. It is our hope that these hearings will produce a
reliable record that Congress can rely on as it proceeds with the
reauthorization of this historic act. Common Cause is proud to offer
its remarks on the Voting Rights Act and suggestions for improving the
sections that are up for reauthorization.
Common Cause is a nonpartisan nonprofit advocacy organization
founded in 1970 by John Gardner as a vehicle for citizens to make their
voices heard in the political process and to hold their elected leaders
accountable to the public interest.
Now with nearly 300,000 members and supporters and 38 state
organizations, Common Cause remains committed to honest, open and
accountable government, as well as encouraging citizen participation in
democracy.
In our 35-year history, Common Cause has had a long history of
support of the Voting Rights Act. We testified before the House
Judiciary Subcommittee on the Constitution in 1975 and 1981 on the need
for extension of the act. In addition, our former chairman emeritus,
the late Archibald Cox, helped develop key provisions of the original
act as United States solicitor general and supported its
constitutionality in oral arguments before the Supreme Court.
Since its enactment 40 years ago as a culmination of the Civil
Rights Movement, and with its subsequent extensions, the Voting Rights
Act has been an invaluable tool in breaking down voting barriers to
millions of Black and Hispanic Americans. It has also extended crucial
voting access to Native Americans, Alaskan and Pacific Islanders and
Asian Americans, ensuring in the process that all Americans have an
opportunity to equally participate in the most vital duty of
citizenship. Along the way, it has contributed immensely to
diversifying the ranks of our nation's elected officials.
Although much of the electoral progress of the past four decades
can be attributed to the Voting Rights Act, its success does not mean
the law is outdated or obsolete. Indeed, many of the numerous problems
voters confronted across the United States in the 2000 and 2004
elections show there is still a need for the expiring provisions of the
Voting Rights Act. As long as barriers to the effective exercise of the
franchise remain for racial, ethnic, and language minorities, there
will be a need for the Voting Rights Act. Several groups have submitted
testimony showing the lingering persistence of racial polarization in
voting patterns; the bipartisan National Commission on the Voting
Rights Act, organized by the Lawyers' Committee for Civil Rights Under
Law, is expected to issue a report in early 2006 detailing, through
testimony and supporting documents, that discrimination against racial
or language minority voters continues to exist in every region of the
United States. In addition, the increase in minority political
participation over the past four decades has been met with new
political devices designed to roll back or negate those gains. (e.g.,
the return of at-large election systems, discriminatory placement of
polling places, or manipulating minority voter strength either by
concentrating, or ``packing'' numbers of voters into districts, or
dividing or ``cracking'' them among numerous districts) These factors,
combined with the continued existence of racially polarized voting,
make plain the need for continuing the strong, prophylactic measures of
the Voting Rights Act.
RESTORING SECTION 5'S ORIGINAL INTENT
We strongly believe there is a need for Congress to restore
protections against intentional racial discrimination in areas covered
by the ``preclearance'' requirements of Section 5. As you know, certain
jurisdictions nationwide with a history of discriminatory voting
practices must have proposed election changes reviewed for potential
discriminatory impact by the Justice Department or the federal District
Court for the District of Columbia before they can be carried out.
Those protections were fundamentally weakened in January 2000, when
the Supreme Court ruled in Reno v. Bossier Parish School Board \1\ that
the Justice Department could not block the implementation of racially
discriminatory voting changes under Section 5 if they were not
retrogressive as compared to the status quo, even if there was a
finding of clear intentional discrimination in a jurisdiction's newly
proposed voting schemes. That is, a jurisdiction that never had
minority representation on its elected body could continue to adopt new
redistricting plans intentionally designed to minimize minority voting
strength, and Section 5 would provide no protection.
---------------------------------------------------------------------------
\1\ Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), also
referred to as Bossier II.
---------------------------------------------------------------------------
This decision upset Congress' original intent in enacting Section 5
of the Voting Rights Act and the legal precedent that has flowed from
it. In the process, it has caused significant damage to the anti-
discrimination protections contained in the Voting Rights Act, as well
as its enforcement by the Justice Department. As Brenda Wright of the
National Voting Rights Institute testified before this committee,
Section 5 objections based on racial discrimination were common before
the Bossier II decision. During the 1980s and 1990s, the Justice
Department logged 234 objections to voting changes based solely on
intent. By comparison, between January 2000 and June 2004, only two
similar objections were filed--a clear sign that the intent standard
has changed significantly since the Bossier II decision. Common Cause
joins with its peers within the civil rights community, including the
Leadership Conference on Civil Rights and the NAACP Legal Defense and
Education Fund, Inc., in asking Congress, as part of the
reauthorization of the Voting Rights Act, to restore the original
intent of Section 5.
We are also very concerned about the effect of the Supreme Court's
2003 ruling in Georgia v. Ashcroft.\2\ In that ruling, which dealt with
Georgia state senatorial districts, the Court allowed states greater
freedom to redraw elective districts without fear of having the
districts rejected as ``retrogressive,'' or harmful to minority voters'
interests. The Court ruled that states could dismantle districts that
afforded minority voters an opportunity to elect candidates of choice
in favor of districts that gave minority voters an opportunity for
``influence.'' This decision is a radical departure from decades of the
Court's precedents.
---------------------------------------------------------------------------
\2\ Georgia v. Ashcroft, 539 U.S. 461 (2003).
---------------------------------------------------------------------------
Twenty-seven years before Georgia v. Ashcroft, the Supreme Court in
Beer v. United States \3\ ruled that creating ``influence districts''
failed to preserve minorities' ability to elect candidates of their
choice, and, as such, was retrogressive. As a result, such voting
changes were objectionable under Section 5 of the Voting Rights Act. In
1982, Congress adopted the Beer standard as part of the act's
reauthorization.
---------------------------------------------------------------------------
\3\ Beer v. United States, 425 U.S. 130 (1976).
---------------------------------------------------------------------------
The court's ruling in Georgia introduced new standards that are at
once vague, contradictory and difficult to apply. For instance, the
court found the ability to elect a candidate of choice is ``important''
and ``integral,'' but a court must also consider the effect--whether
voters have the ability to ``influence'' and elect ``sympathetic''
representatives.
Also, the Supreme Court's 1995 decision in Miller v. Johnson \4\
demonstrates ably that influence is not a substitute for the ability to
elect. In that case, White citizens who were placed in majority-Black
districts successfully argued their inclusion in those districts (which
could also be described as White ``influence'' districts) was
unconstitutional. The voters in this lawsuit, rather than embracing the
opportunity to ``play a substantial, if not decisive, role in the
electoral process'' or to accomplish ``greater overall
representation''--all similar arguments the Supreme Court made in
Georgia v. Ashcroft--instead chose to challenge their placement in
majority-Black districts. Were ``influence'' as attractive a status as
the court would have us believe, everyone would be fighting to be a
minority in as many districts as possible. The fact that no voters are
doing so speaks volumes of the Georgia v. Ashcroft ruling and the
approach it embodies.
---------------------------------------------------------------------------
\4\ Miller v. Johnson, 515 U.S. 900, 919-20 (1995).
---------------------------------------------------------------------------
Through its ruling in Georgia v. Ashcroft, the court took a clearly
understood and applied standard and reworked it into something
ambiguous and open to varying interpretation. It raises the specter
that states may eventually reduce racial, ethnic and language-minority
voters to second-class status by locking them into influence districts
without the opportunity to elect their preferred candidates--a result
that Section 5 was intended to avoid.
The Supreme Court's decisions in the Georgia v. Ashcroft and
Bossier II cases jeopardize many of the gains that American citizens
have made under the Voting Rights Act. As a result, Common Cause asks
Congress to reinstate the Beer standard that has competently guided
federal, state and local officials as part of the provisions of the
Voting Rights Act for nearly 30 years. At minimum, Congress should
clarify the issue by stating as part of the reauthorization that any
diminution of the ability of a minority group to elect a candidate of
its choice constitutes retrogression under Section 5. In addition,
Congress must also act to ensure that voters' rights are protected
under the enforcement mechanism of Section 5 by restating its intent
using the pre-Bossier II standard.
STRENGTHEN THE ACT'S LANGUAGE PROVISIONS (SECTIONS 4(F)(4) AND 203)
Common Cause has historically supported efforts to include
bilingual election requirements, such as those included in Sections
4(f)(4) and 203 of the Voting Rights Act. As Archibald Cox said in his
1982 testimony before Congress on the issue:
In adopting the bilingual election provisions (in 1975),
Congress recognized that English-only election materials and
voter assistance can constitute a barrier to voting similar to
literacy tests. Requirements for bilingual elections have
enabled and encouraged minorities to become active participants
in the great work of governing ourselves. I am not unmindful of
the argument that the bilingual provisions will tend to
polarize American society. Surely, bilingual voting will have
just the contrary effect. The best way to avoid a separatist
movement in this country is to encourage participation in the
exercise of the right to vote. For participation in the
electoral process without language barriers makes it plain to
all that we are one Nation with one government for all the
people.
Currently, Section 4(f)(4) applies to three states (Alaska, Arizona
and Texas) and 19 counties or townships in six additional states;
Section 203 applies to five states (Alaska, Arizona, California, New
Mexico and Texas) and parts of 26 additional states covering 29
languages. Taken together, sections 4(f)(4) and 203 apply to 505
jurisdictions nationwide. Common Cause believes that attempts to impose
English-only provisions should be blocked and that the language
provisions included in sections 4(f)(4) and 203 should be reauthorized
for 25 years. More specifically, we associate ourselves with the
comments of Margaret Fung of the Asian-American Legal Defense and
Education Fund and Juan Cartagena of the Community Service Society of
New York, in asking that Congress lower the language minority numerical
trigger contained in Section 203 from 10,000 voting-age citizens to
7,500. This move would continue the encouraging trend of higher Asian-
American and Latino political participation among our fastest-growing
populations.
Enhanced access to bilingual voting materials will continue to
expand minority-language voters' access to the political process--
especially older citizens for whom English may not be their first
language. Most importantly, this expands the right to vote and
participate in American society, which solidly trumps any claims of
fraud and increased expense that opponents of minority-language
provisions have put forth.
REAUTHORIZE FEDERAL OBSERVER AND EXAMINER PROVISIONS (SEC 6-8)
The Voting Rights Act also provides for the deployment of federal
observers and examiners to witness voting practices, as well as
interview and register individuals denied the right to register by
state and local officials in covered jurisdictions. As Nancy Randa of
the Office of Personnel Management recently testified, these provisions
have not changed significantly since the original enactment of the
Voting Rights Act. Since 1966, the federal government has deployed more
than 26,000 observers to 22 states in all regions of the country. As
you have heard in testimony by the National Commission on the Voting
Rights Act and the Asian-American Legal Defense and Educational Fund,
there remain numerous instances in which voters have been subjected to
harassment or intimidation at the polls. As long as these incidents
continue to take place, there will be a need for examiners and
observers. Therefore, Common Cause asks Congress to reauthorize
sections 6 and 8 of the Voting Rights Act for an additional 25 years to
ensure these well-practiced protections will remain in place.
CONCLUSION
As stated above, the Voting Rights Act has served its purpose well
over the previous 40 years. But that does not mean its time has passed.
To the contrary, the explosive growth of Asian Americans and Latinos in
the United States, combined with the deleterious effects of recent
Supreme Court decisions with respect to Section 5, are all the more
reasons why Congress must reauthorize a stronger Voting Rights Act. By
reinstating the Beer standard, reversing the damage caused by Georgia
v. Ashcroft and Reno v. Bossier Parish (2000), lowering the minority
language trigger in Sections 203, and reauthorizing the federal
examiner and observer provisions of Sections 6 and 8, Congress can send
a strong message to Americans that everyone's vote does count. We hope
Congress takes an affirming step for voting rights in America by
incorporating these actions in the reauthorization of the Voting Rights
Act.
Thank you.