[Senate Hearing 109-562]
[From the U.S. Government Publishing Office]
S. Hrg. 109-562
MODERN ENFORCEMENT OF THE VOTING RIGHTS ACT
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 10, 2006
__________
Serial No. J-109-75
__________
Printed for the use of the Committee on the Judiciary
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 3
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 2
prepared statement........................................... 112
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 127
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 1
WITNESSES
Cartagena, Juan, General Counsel, Community Service Society, New
York, New York................................................. 14
Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas..... 20
Kim, Wan J., Assistant Attorney General Civil Rights Division,
Department of Justice, Washington, D.C......................... 4
Landreth, Natalie A., Staff Attorney, Native American Rights
Fund, Anchorage, Alaska........................................ 18
McDuff, Robert B., Attorney, Jackson, Mississippi................ 21
Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta,
Georgia........................................................ 16
QUESTIONS AND ANSWERS
Responses of Juan Cartagena to questions submitted by Senators
Cornyn, Coburn, Leahy, Kennedy, and Schumer.................... 31
Responses of Gregory S. Coleman to questions submitted by
Senators Coburn and Cornyn..................................... 50
Responses of Wan J. Kim to questions submitted by Senators
Specter, Sessions, Cornyn, Coburn, Leahy, and Kennedy.......... 55
Responses of Natalie A. Landreth to questions submitted by
Senators Cornyn, Coburn, Leahy, and Kennedy.................... 73
Responses of Robert B. McDuff to questions submitted by Senators
Coburn, Cornyn, Kennedy, and Leahy............................. 82
Responses of Frank B. Strickland to questions submitted by
Senator Coburn................................................. 100
SUBMISSIONS FOR THE RECORD
Cartagena, Juan, General Counsel, Community Service Society, New
York, New York, prepared statement............................. 103
Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas,
prepared statement............................................. 108
Kim, Wan J., Assistant Attorney General Civil Rights Division,
Department of Justice, Washington, D.C., prepared statement.... 114
Landreth, Natalie A., Staff Attorney, Native American Rights
Fund, Anchorage, Alaska, prepared statement.................... 124
McDuff, Robert B., Jackson, Attorney, Mississippi, prepared
statement and attachment....................................... 129
Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta,
Georgia, prepared statement.................................... 151
MODERN ENFORCEMENT OF THE VOTING RIGHTS ACT
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WEDNESDAY, MAY 10, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Arlen
Specter, Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, DeWine, Sessions, Cornyn,
Leahy, and Kennedy.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Good morning, ladies and gentlemen. It is
9:30 and the Judiciary Committee will now proceed on the third
in a series of hearings on the renewal of the temporary
provisions of the Voting Rights Act. Yesterday, we examined the
legal issues surrounding reauthorization, and today we will
focus on how the Voting Rights Act is enforced.
Just reading the statute does not get one very far until we
probe on how the Act is enforced. For example, Section 5
provides that a voting practice must ``not have the purpose and
will not have the effect of denying or abridging the right to
vote on account of race or color,'' or a voter's English
proficiency. That provision, a very important one, has been
subject to significantly different interpretations.
Beginning in 1976, the Supreme Court applied a thoroughly
mechanical formula in evaluating district plans under Section
5. If the plan decreased the number of majority/minority
districts, the Court would strike it down. Then in the 1990's,
the Justice Department went a step further and followed a
policy of rejecting any districting plan that did not create
the maximum number of majority/minority districts possible. In
Georgia v. Ashcroft in 2003, the Court rejected both its own
approach and that of the Justice Department and held that
districting plans can pass Section 5 even if they decreased the
number of majority/minority districts.
It is likewise important to understand the enforcement of
Section 203, which requires bilingual election materials in
certain jurisdictions. That section says nothing about how
those jurisdictions should distribute bilingual election
materials. It only requires a jurisdiction to ``provide them.''
It is enough that the materials be available on request. Must a
State locate voters and ensure they receive them? What criteria
should the States use to develop its programs? How the
Department of Justice and local jurisdictions answer these
questions has a great impact on how effective Section 203 will
be.
These are all complicated issues. We all recognize the
overwhelming importance of the Act in securing fair treatment
for minority voters, and the right to vote and the exercise of
the right to vote is obviously the basic protection of a
citizenry and a democracy. To help us examine these issues
today, we have the head of the Department of Justice Civil
Rights Division, Assistant Attorney General Wan Kim. We also
have five distinguished attorneys with extensive experience
litigating and responding to the Voting Rights Act.
I thank Senator Kennedy for his leadership on this
important subject going over--let's see, the 1960's, the
1970's, the 1980's, the 1990's--five decades, Senator Kennedy.
You are recognized for your opening statement.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman, again, for the
breadth and depth of these hearings that will clearly establish
a record on this very important and fundamental piece of
legislation, perhaps the most important legislation we will
consider in the Congress.
As we know, the Voting Rights Act was adopted to address
the systematic and egregious discrimination endured for over a
hundred years in the country, and we heard testimony yesterday
regarding the unfortunate fact that in numerous ways this
discrimination still endures today. Laughlin McDonald, the
Director of the ACLU's Voting Rights Project, provided very
recent examples, and he testified about a TRO that was just
issued last month on potentially discriminatory voting changes
made in Randolph County, Georgia, that were not submitted for
preclearance.
Regrettably, it is not surprising that it may take more
than 40 years to eliminate the blight of racial discrimination
in voting. The Voting Rights Act combats the ills that are at
the core of the 14th and 15th Amendments--racial prejudice. And
while the remedy is strong, it is appropriate, given the
fundamental importance of the right to vote and participate in
the political process. And as the Supreme Court has held, the
electoral franchise is a fundamental right that is preservative
of all other rights. So we cannot discard lightly the
safeguards adopted in the Voting Rights Act, particularly in
Section 5 of the Act. The progress we have made has been great,
but it is not complete, and we cannot allow it to be
jeopardized or diminished.
Today we will be hearing about the Justice Department's
efforts to enforce the Voting Rights Act, and while I have some
concern about the Justice Department's recent approach to
implementing the Act, today we will hear from the Assistant
Attorney General about the Justice Department's efforts and the
continuing need for vigorous enforcement. Section 5 has been
the Federal Government's most effective tool against voting
discrimination. And even after the Act was passed, there was
real and substantial danger that discriminatory decisions by
jurisdictions covered by Section 5 would deny or abridge the
right to vote. In fact, jurisdictions did adopt a host of
voting devices and changes, some subtle and some overt, with
the intent to shut minorities out of voting power. And some of
those decisions had a discriminatory purpose. Some had a
discriminatory effect. Others had both. It was because of the
work of the Justice Department under Section 5 of the Act that
those invidious voting changes were not implemented and that
any progress in political participation was not undone.
Taking a long view, historically the Justice Department has
vigorously carried out its Section 5 responsibilities precisely
as Congress intended it to. The record we will be examining,
which the House hearings examined closely, indicates that there
is a continuing problem with discriminatory decisionmaking with
respect to voting by jurisdictions covered by Section 5.
Today we will also hear from witnesses who will describe in
more detail the concerns about continuing discrimination in
some of the jurisdictions covered by Section 5 and Section 203,
the minority language sections of the Voting Rights Act. As we
have noted, compiling this record is one of the most important
purposes of the hearings and will provide a sturdy foundation
for our actions in this most important piece of legislation.
We have a number of communities in my own State that are
covered by Section 203, including Boston and Chelsea and
Lawrence, Southbridge and Springfield as well.
So, in addition, we will specifically be hearing about the
role that Section 203 has played in ensuring the right to vote
and having that vote count fully and fairly. Section 203
requires that certain jurisdictions provide for language
assistance to American citizens who are limited in their
English proficiency. Section 203 directly addresses barriers to
voting for Asian Americans, Latinos, and Native Americans, and
it, too, as a provision should not be allowed to expire.
So I thank the Chair and look forward to the testimony.
Chairman Specter. Thank you, Senator Kennedy.
Senator Cornyn, would you care to make an opening
statement?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Just briefly, Mr. Chairman. Thank you again
for this series of hearings. I look forward to hearing from the
witnesses along the lines that we previously inquired of other
witnesses, trying to ascertain what sort of empirical evidence
exists of changes in voting practices and whether some of the
stereotypes that certainly were validated by the facts years
ago in terms of precluding minorities from fully participating
in the process, whether those stereotypes are still valid today
in light of some of the dramatically improved changes that we
have seen. And so I look forward to inquiring of the witnesses
and hearing from them on those issues.
Thank you very much.
Chairman Specter. Thank you, Senator Cornyn.
Senator DeWine, an opening statement?
Senator DeWine. Mr. Chairman, I just thank you for holding
this hearing, and I look forward to the testimony.
Chairman Specter. Thank you very much.
Assistant Attorney General Wan J. Kim became the holder of
that position on November 9th of 2005. Born in South Korea, Mr.
Kim is the first immigrant to serve as Assistant Attorney
General of the Civil Rights Division and is the first Korean
American ever to become an Assistant Attorney General, so you
have two very distinguished firsts, Mr. Kim.
He has experience in the Department before becoming the
Assistant AG, having been the Deputy Assistant, spent most of
his career at the Department of Justice, was in the Attorney
General's Honors Program, was Assistant United States Attorney
for the District of Columbia, served on the staff of Senator
Hatch here, and was a law clerk to Senator Buckley; an honors
graduate from both Johns Hopkins University and the University
of Chicago Law School. He has served as an enlisted soldier and
a rifle platoon leader in the Army Reserve.
Thank you for joining us, Mr. Kim. Our practice is to
allocate 5 minutes for statements and then 5-minute rounds for
questions by the Senators on the panel. You may proceed.
STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, CIVIL
RIGHTS DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Kim. Thank you very much, Mr. Chairman, and thank you
for holding these hearings. It is my privilege to appear before
you and before the other distinguished members of the
Committee.
It is my privilege to appear in this hearing on the modern
enforcement of the Voting Rights Act. As you know, certain
provisions of the Voting Rights Act are due to expire next
year. The administration supports reauthorizing these
provisions of the Voting Rights Act, as the President and the
Attorney General have made clear. We also support the
legislative intent of S. 2703 and H.R. 9 to overrule the
Supreme Court's 2003 decisions in Georgia v. Ashcroft and the
2000 decision in Reno v. Bossier Parish School Board.
While the Department of Justice has not yet completed our
review of this bill's language, we look forward to working with
Congress to ensure that this legislation is consistent with
these purposes.
I am pleased to provide you with an overview of the Justice
Department's enforcement of three important provisions of the
Voting Rights Act: Section 5, which involves the Act's
preclearance mechanism, and Sections 203 and 4(f)(4), which
contain the Act's language-minority provisions. I am also
pleased to provide you with an explanation of the Department's
use of two other provisions of the Act--Sections 6 and 8--which
pertain to Federal examiners and observers.
Let me begin with Section 5. The Voting Section of the
Civil Rights Division receives roughly 4,000 to 6,000 Section 5
submissions annually, although each submission may contain
numerous voting changes that each must be reviewed. Our
function in evaluating Section 5 submissions is, in the words
of the Supreme Court, ``to insure that no voting-procedure
changes [are] made that would lead to a retrogression in the
position of racial minorities with respect to their effective
exercise of the electoral franchise.''
Impressively, the outstanding career attorneys in our
Voting Section undertake this often highly complex examination
in a brief 60-day period of time, as is required under the
statute. Employing this standard over the last 40 years, we
have found retrogression in an extremely small number of cases.
Since 1965, out of the 125,885 total Section 5 submissions
received by the Department of Justice, the Attorney General has
interposed an objection to 1,402. And in the last 10 years,
there have been 92 objections. In other words, the overall
objection rate since 1965 is only slightly above 1 percent
while the annual objection rate since the mid-1990's has
declined even more, now averaging less than two-tenths of a
percent. This tiny objection rate reflects the overwhelming
compliance with the Voting Rights Act by covered jurisdictions.
In addition to our Section 5 enforcement efforts under this
administration, the Justice Department has undertaken the most
extensive Sections 203 and 4(f)(4) enforcement activities in
its history. The initiative began immediately following the
Census Bureau's 2002 determinations as to which jurisdictions
are covered under Section 203. The Civil Rights Division not
only mailed formal notices and detailed information on Section
203 compliance to each of the 296 covered jurisdictions, but we
also initiated face-to-face meetings with State and local
officials and minority community members in the 80 newly
covered jurisdictions to explain the law, to answer questions,
and to foster the implementation of effective legal compliance
programs.
These efforts have borne abundant fruit. Since 2001, this
administration has filed more language-minority cases under
Sections 203 and 4(f)(4) than in the entire previous 26-year
history of these provisions. The lawsuits filed in 2004 alone
provided comprehensive language-minority programs to more
citizens than all previous 203 and 4(f)(4) suits combined. Our
lawsuits have significantly narrowed gaps in electoral
participation. In Yakima County, Washington, for example,
Hispanic voter registration went up by over 24 percent in less
than 6 months after resolution of our Section 203 lawsuit. In
San Diego County, California, Spanish and Filipino registration
were up by over 21 percent, and Vietnamese registration was up
over 37 percent, within 6 months following our enforcement
efforts.
Finally, the Department of Justice has taken full advantage
of the Federal observer provisions of the Voting Rights Act. In
2004, for example, the Civil Rights Division worked with the
Office of Personnel Management to send nearly 1,500 observers
to cover 55 elections in 30 jurisdictions in 14 different
States. Additionally, in 2005, 640 Federal observers were sent
to cover 22 elections in 17 jurisdictions in 10 different
States.
Let me say in conclusion that the Civil Rights Division has
made the vigorous enforcement of voting rights a primary
objective. The Department of Justice is proud of the role that
it plays in enforcing the statute, and we look forward to
working with Congress during these reauthorization hearings.
At this point, I would like to submit the text of my
prepared statement for the record, and I will be pleased to
answer any questions that the members of the Committee may
have.
[The prepared statement of Mr. Kim appears as a submission
for the record.]
Chairman Specter. Well, thank you very much, Mr. Kim.
Without objection, your full statement will be made a part of
the record.
As you know, the record basis has to include recent and
continuing violations. Over the past 10 years, are you in a
position to say how many jurisdictions have refused to comply
with Department of Justice enforcement orders and court orders?
Mr. Kim. Senator, it is my understanding that no
jurisdiction has refused to comply with our determinations made
under Section 5. It is the case, however, that some
jurisdictions have failed to make preclearance submissions
under Section 5, as is required by the statute, and in those
jurisdictions we will followup by bringing appropriate
remedies, if necessary.
Chairman Specter. How many such cases are there where they
do not comply with the provisions you just mentioned?
Mr. Kim. Senator, I would have to get the detailed
statistics to you, and I will make those statistics available--
Chairman Specter. Would you make those available to us for
the record so that we know the extent of that problem and also
how current it is?
Mr. Kim. Yes, sir.
Chairman Specter. Can you give us some examples over the
past 10 years of States committing unconstitutional voting
discrimination?
Mr. Kim. Yes, sir. Certainly with respect to some of our
Section 203 lawsuits, we have found voters who have been denied
other protections either by statute or by the Constitution. For
example, in a recent lawsuit we brought against the city of
Boston under Section 203 and Section 2 of the Voting Rights
Act, we found instances where ballots presented to certain
voters who did not understand English very well were taken from
those voters and marked out against those voters' will. And
certainly in instances in San Diego County, for example, we
found examples where election officials would ask for
additional information about citizenship from people who seemed
to be Hispanic. And those kinds of violations are often found
in the kinds of cases that we bring under the Voting Rights
Act.
Chairman Specter. Would you supply for the record the
details or as much information as you have on unconstitutional
behavior by a State or jurisdiction to give us as comprehensive
a record as possible on this important question?
Mr. Kim. Of course, Mr. Chairman. In fact, we have made
available and submitted for the House record and we will make
available and submit for the Senate record all of the objection
letters that we have submitted under Section 5 in history,
which number more than 2,000 pages. We will also make available
all the lawsuits that we have brought in recent years that
allege constitutional violations.
Chairman Specter. Mr. Kim, as you know, Federal regulations
require that jurisdictions covered under Section 203 provide
bilingual materials to all voters or to develop ``an effective
targeting system'' to identify ``persons who are likely to need
them.'' Recently, the House Subcommittee on the Constitution
found that an elected official from Orange County, California,
claimed that the Department of Justice requires States to send
bilingual materials to any voter with a Spanish-sounding
surname. That has an overtone of racial profiling, assuming
that anyone with a foreign-sounding surname cannot speak the
language, regardless of how long they have lived here.
Does the Department of Justice enforce such a policy? Why
doesn't the Department of Justice simply require States to send
bilingual ballots to those voters the census lists as needing
assistance? Or is the census adequate to pinpoint the need for
that kind of assistance?
Mr. Kim. Mr. Chairman, to answer the first part of your
question, no, the Department of Justice does not make such a
requirement. The Department of Justice is charged with
enforcing Congressional intent in Section 203, and we do so
vigorously. And part of that intent is to make sure that people
who need the bilingual provisions obtain them and no more than
that. If we required the jurisdiction that was covered to
provide bilingual materials to everyone in that jurisdiction,
obviously that would be a burden that is not commensurate to
the harm.
The Census Bureau data only provides information with
respect to the entire jurisdiction and does not break out those
individuals in the jurisdiction who actually need the bilingual
services. And so in each individual jurisdiction, the
Department of Justice takes a comprehensive view of the facts
and circumstances in that jurisdiction to determine the best
method for obtaining compliance.
Chairman Specter. Mr. Kim, I want to interrupt you because
I have time for one more question. What are the key reasons,
the best reasons in your mind about the need for the
reauthorization of the Voting Rights Act? What currently is
happening which leads you to believe the Act should be
reauthorized?
Mr. Kim. Well, Senator, as you know, the administration
strongly supports reauthorization of the Voting Rights Act, and
we have a proud history of enforcing the Voting Rights Act
since its inception at the Department of Justice. The Act has a
continuing vitality. We file objections under Section 5 every
year. We have brought numerous lawsuits in the past 5 years to
enforce the language-minority provisions, and these are the
provisions that are due to expire, and we do believe that these
provisions serve a continuing need.
Chairman Specter. Thank you very much, Mr. Kim.
Senator DeWine has graciously consented to chair the
balance of the hearing, so at this point I turn the gavel over
to Senator DeWine. Thank you.
Senator DeWine [presiding]. Senator Kennedy?
Senator Kennedy. Thank you very much.
Could you just continue on your answer about Section 203?
We had a situation in Boston, as you mentioned, and it was
settled very expeditiously, and the people--the mayor feels
that the interaction with the Department has been enormously
constructive and positive. So it is one of those circumstances
where those that were pointed out where there had been alleged
kinds of problems benefited significantly from working with the
Department.
But besides the 203, in response to the Chairman's
question, I mean, we have seen the growth of the terms of the
Hispanic community and a number of different communities, so
that Section 203 is going to be out there and applicable in
places where I suppose we did not think were much of a problem,
but we obviously have to watch these situations. But in Section
5, if you could--you mentioned that you have been bringing
cases. Maybe you could just expand on that briefly about what
has been the record in the period of the last--I don't know. I
guess you have been in there now for a period, but could you
give us sort of a rundown of the recent history, say for 5 or 7
years?
Mr. Kim. Certainly, Senator. First of all, it cannot be
overstated that the Voting Rights Act has widely been
recognized as one of the most successful pieces of civil rights
legislation ever passed by Congress, if not the most
successful. It has, during its course of history, significantly
narrowed gaps in electoral participation by all Americans, and
that is certainly a proud history and one that we are proud to
enforce.
Over the history of the Voting Rights Act, the covered
jurisdictions are required, of course, to submit for
preclearance any changes in its voting procedures, and that
submission by itself creates a deterrent effect. So I think it
is important, when one thinks about Section 5 and preclearance,
to recognize that the very fact of submission is an important
detail that prevents retrogression and prevents harming
minority voting strength and prevents back-sliding, the very
types of evils that Congress sought to prevent in passing
Section 5.
And even with the submission procedures, it is true that
the number of objections filed by the Department of Justice has
declined in the past 10 years to approximately two-tenths of 1
percent. The need for objections, however, is real, and we do
make those objections every year. And so the fact of the matter
is, in the past 5 years, we have raised approximately something
shy of 50 objections. Stated differently, those are 50 cases
that we have prevented in terms of allowing a voting change to
take place that may have had a retrogressive effect or a
retrogressive purpose. And we think that that is enormously
important to the work of promoting the very goals that Congress
sought to promote in the Voting Rights Act.
Senator Kennedy. Explain to me a little bit the value of
observers. How do you make the judgment when you are going to
have observers? And how important have they been in these
recent cases, recent elections?
Mr. Kim. Well, Senator, we think that sending observers and
monitors to help assist local election officials conduct the
elections is enormously important because they help to prevent
problems before there is a real problem, and they help to make
sure that no one at the polls is denied access to the polls
consistent with Federal law and constitutional law.
The decision on when to appoint observers and monitors is
one based upon the facts and circumstances on the ground with
respect to any particular election.
Senator Kennedy. Give us some examples about the extent,
how many different sort of polling areas that you have
provided--
Mr. Kim. Well, Senator, those numbers are in my prepared
statement, and certainly with respect to--in 2004, for example,
the Presidential election, we sent out nearly 1,500 observers
to monitor 55 elections in 30 jurisdictions in 14 States. That
is in addition to Civil Rights and Department of Justice
personnel--an additional 400 people to monitor 100 elections in
80 jurisdictions in 27 different States. That was the most
extensive observer and monitor coverage in history.
Senator Kennedy. What do you anticipate in this election
here in 2006?
Mr. Kim. Senator, we have not reached firm numbers yet.
Clearly, Presidential elections are different in terms of
magnitude and scale, and we need to step up our enforcement
efforts and our monitoring efforts commensurately. But, you
know, the commitment that I have as the head of the Civil
Rights Division is to make sure that whatever the need is, we
will accommodate it.
Senator Kennedy. Just finally, could you tell us--I
understand the Department of Justice has offered assistance to
jurisdictions on ways to reduce costs of compliance with
Section 203. Could you describe for us some of the outreach the
Department has done in this regard?
Mr. Kim. Absolutely, Senator. One of the important things,
I think, with Section 203 is communication and technical
assistance because many jurisdictions who are covered do not
realize exactly that they are covered, nor do they know how to
comply with the Act in a cost-effective way. Our folks are
experts in doing so, and we have made contact by mailing
letters to every covered jurisdiction shortly after the Census
Bureau made the determination in 2002, having face-to-face
meetings, and under the facts and circumstances of each
particular case, designing a targeting method to reach the
voters to whom the provisions are directed in a manner that is
cost-effective to the jurisdiction to ensure compliance.
Senator Kennedy. My time is up. Thank you, Mr. Chairman.
Mr. Kim. Thank you, Senator.
Senator DeWine. Mr. Kim, thanks for joining us. You
mentioned that the Department supports the efforts this bill is
making to overturn the results of some recent Supreme Court
jurisprudence, certainly including the case of Georgia v.
Ashcroft. Could you share with us the practical effect of that
case and how that has changed how you do business, how the
Department investigates and prosecutes cases under the Voting
Rights Act?
Mr. Kim. Yes, Senator. Certainly, Georgia v. Ashcroft has
changed the analysis that the United States employs when
reviewing Section 5 submissions by covered jurisdictions. And,
of course, the Government's position in Georgia v. Ashcroft was
the one rejected by the Supreme Court and adopted by only four
members of the Court.
I will say at the outset, of course, that the Department of
Justice will act pursuant to the laws passed by Congress as
interpreted by the Supreme Court, and we have been faithful in
our application of Georgia v. Ashcroft. That said, we do
support what we understand the intent of S. 2703 and H.R. 9 to
be in terms of overruling legislatively the Supreme Court's
decision in Georgia v. Ashcroft.
What Georgia v. Ashcroft did was adopt a totality of the
circumstances approach to redistricting standards, and since
Georgia v. Ashcroft was decided in 2003, we have not had
occasion to review many redistricting submissions employing its
standard. Clearly, a small proportion of redistricting happens
after the decennial census. Most of it occurred and was
evaluated prior to the standards enunciated by Georgia v.
Ashcroft because, again, we obtain most of our redistricting
submissions about 2 years after the census, so about 2002.
We have tried to faithfully employ, and we have, I submit,
faithfully employed the standard enunciated by Georgia v.
Ashcroft, but the totality of the circumstances standard
involves a much more nuanced approach to retrogression. It
requires not only looking at minority-controlled districts, but
also influence districts where minorities may not control the
outcome of elections but influence the outcome of elections.
And the totality of the circumstances approach is one that is
in many respects more nuanced and more difficult to administer
because it requires a greater look at everything that is going
on rather than focused areas.
Senator DeWine. You do not have a specific example you
could cite for me?
Mr. Kim. With respect to a problem caused by Georgia v.
Ashcroft, Senator?
Senator DeWine. Problem or a case where you could show me
the actual difference in the application of the law.
Mr. Kim. No, Senator, I do not--
Senator DeWine. Pre-Georgia v. Ashcroft. In other words,
compare and contrast how you would approach it. Or if you
cannot do that, give me a hypothetical.
Mr. Kim. Sure.
Senator DeWine. Make up a hypothetical for me.
Mr. Kim. Absolutely. Well, Senator, I mean, the facts of
Georgia v. Ashcroft themselves would probably be the best
hypothetical because that was a plan to which we objected, and
that was a plan--
Senator DeWine. What were the facts?
Mr. Kim. Well, Senator, the facts were--and I am not going
to do justice to the facts right now, but the facts generally
were that there was a decrease in the number of minority
citizens of voting age population in, I believe, three
legislative districts in the State of Georgia. And the
benchmark plan had approximately a 55- to 60-percent level of
minority populations in those covered districts, and the plan
that Georgia submitted under Section 5 reduced that minority
population in, I believe, those three districts to closer to 50
percent, making those districts much more of a toss-up.
The United States interposed an objection to those
districts, and I believe it was three, but do not quote me on
that, and I will get back to you certainly with more specific
and finely honed details.
The Supreme Court ruled that that legislative judgment was
appropriate under Section 5 of the Voting Rights Act and not
retrogressive because the decreases of minority voting strength
in those districts was compensated by increases in minority
voting strength in other districts. Those districts where
minority strength increased could not be characterized and were
not characterized as majority-minority districts but
sufficiently increased the minority voting strength in those
districts so it transformed them into what was called influence
districts. And based upon that totality of the circumstances,
the Supreme Court ruled that under Section 5 that was a
legitimate decision and choice for the States to make. And
consistent with our previous practices prior to Georgia v.
Ashcroft, we thought that that was retrogressive under pre-
Georgia v. Ashcroft law.
Senator DeWine. Thank you very much.
Senator Cornyn?
Senator Cornyn. Mr. Kim, let me ask you, first of all, you
said the record today in terms of the Voting Rights Act is one
that demonstrates overwhelming compliance with the law. Is that
correct?
Mr. Kim. Yes, sir.
Senator Cornyn. Let me ask you if you agree with this
following statement: And today in the American South--in 1965,
there were less than 100 elected black officials. Today there
are several thousand. So there has been a transformation.
Georgia is a different State. It is a different political
climate. It is a different political environment. It is a
different world that we live in, really. The State is not the
same State it was. It is not the same State it was in 1965 or
in 1975 or even 1980 or 1990. We have changed. We have come a
great distance. It is not just in Georgia but in the American
South. I think people are preparing to lay down the burden of
race.
Do you agree with that statement?
Mr. Kim. Senator, I have no reason to disagree with that
statement, and I certainly agree that the Voting Rights Act has
effected a great change, and America has changed much over the
past 40 years.
Senator Cornyn. That statement is part of sworn deposition
testimony, as you know--you probably recognize it--in Georgia
v. Ashcroft by Representative John Lewis.
I want to ask, in light of this record of overwhelming
compliance, first of all, I would ask, Mr. Chairman, to make a
part of the record at the end of my questions and Mr. Kim's
answers a document that I believe is part of the DOJ testimony
entitled ``Administrative Review of Voting Changes from 1965 to
2006.''
Senator DeWine. Without objection.
Senator Cornyn. Mr. Kim, this document appears to
demonstrate that, first of all, as you pointed out, that the
number of objections to preclearance requests by those
jurisdictions covered by Section 5 have dropped dramatically. I
think you mentioned two-tenths of 1 percent?
Mr. Kim. Yes, sir. That is correct.
Senator Cornyn. And, in fact, in 2006, according to this
document, there was one out of 4,094 submitted; out of 4,734 in
2006, there was one; the previous year, 5,211, and there were
three objections. Is that indicative of what you have testified
to earlier, a record of overwhelming compliance obviating the
necessity of the Department objecting to those plans that are
submitted for preclearance?
Mr. Kim. Yes, Senator. There is almost near universal
compliance with the Voting Rights Act, in Section 5 of the
Voting Rights Act specifically.
Senator Cornyn. And as you know, the preclearance
requirements under Section 5 are regarded by some of the
political subdivisions that are covered as expensive and time-
consuming and to some extent an onerous requirement. They cover
only, I guess, nine States and parts of other States, but the
vast majority of the United States is not covered at all by
those preclearance requirements.
Could you cite for the Committee empirical evidence that
would indicate that the outcomes, in terms of protection of
minority voting rights, are significantly different in those
sections that are covered versus those that are not covered?
Mr. Kim. Senator, I am afraid I do not have a record with
respect to non-covered jurisdictions in the context of Section
5 because, of course, we do not receive submissions under
Section 5 from non-covered jurisdictions. Certainly you are
correct to note that the Voting Rights Act has a trigger
formula for coverage, which turns on various factors that
existed in 1964, 1968, and 1972, leading to approximately 17
States that are covered either entirely or in part.
I would also note that there is a bailout mechanism
employed in the Act that allows covered jurisdictions to bail
out of coverage under Section 5.
Senator Cornyn. You are certainly correct the bailout
provisions exist, but we are being asked to reauthorize
expiring provisions, and so I would submit that is a slightly
different issue. But when I ask for the empirical evidence and
you say that you do not have it for those areas that are not
covered, is that because you are of the opinion that such
empirical evidence does not exist or you just do not happen to
have it?
Mr. Kim. Senator, I just do not have the evidence. I mean,
certainly I have statistics with regard to the number of
submissions that we receive, the number of submissions that we
evaluate, and the number of submissions that we raise
objections to under Section 5. But that data only exists
because of history and because of Congress and the laws that it
has passed with respect to the covered jurisdictions.
Senator Cornyn. Would you agree with me that that is an
important question for Congress to consider in determining how
to go about reauthorizing the Voting Rights Act, particularly
the preclearance requirements, whether, in fact, that Federal
intervention into the practices of local and State political
subdivisions covered by the preclearance actually produces
better outcomes in those areas than it would under the Voting
Rights Act generally?
Mr. Kim. Senator, certainly the administration supports
reauthorization of the Voting Rights Act, and it is Congress'
role, and I think duty in many respects, to make sure that it
is a policy decision that is consistent with the goals of
Congress and the facts on the ground. And I think that a wide-
ranging inquiry is something that Congress has always
undertaken, and I know that the record is still open. I know
that these hearings are still ongoing, and certainly we will
act at the Department of Justice consistent with what Congress
legislates.
Senator Cornyn. Thank you.
Senator DeWine. Senator Kennedy?
Senator Kennedy. Just a question to followup on this. Could
you relate then--Section 2, which covers the country--how that
would relate to these areas that are not covered under Section
5, wouldn't that still be available in those jurisdictions?
Mr. Kim. Yes, Senator. Section 2 has nationwide
application. It always has had nationwide application. It does
not expire, and we certainly enforce the provisions of Section
2 where the cases present themselves.
Senator Kennedy. Is it your sense from looking at Section
2, in looking at these other areas that are not covered that
the Senator mentions, is there anything you want to tell us
about whether there are Section 2 cases in those areas? Are
there a good number in some areas? Do you form any opinion
about the number of Section 2 cases, that maybe there should be
greater coverage?
Mr. Kim. Senator, I can give you some information with
regard to the number of Section 2 cases that we have brought in
the past 10 years or so. I will say that with respect to the
Section 2 cases the Department of Justice has brought in the
past 10 years, more of them have been brought in non-covered
jurisdictions than covered jurisdictions, which suggests many
things, but it certainly could suggest that the preclearance
mechanisms in Section 5 do have an effect in the covered
jurisdictions in tamping down abuses of the Voting Rights Act.
Senator Kennedy. I think if you can provide, you know, just
some information on that, it would be helpful.
Mr. Kim. We would be happy to do so, Senator.
Senator Kennedy. Thank you very much.
Thank you, Mr. Chairman.
Senator DeWine. Senator Hatch?
Senator Hatch. Well, Mr. Kim, we are so proud to have you
back here again. We appreciate the work you are doing down
there. Sorry I have not been able to get here before now, but I
just want everybody to know that I have considered the Voting
Rights Act the most important civil rights bill in history, and
there are a lot of important bills. So we are very concerned
about making sure that we follow through and do what is right
here. But I appreciate you being here.
Is there anybody else who wants to question?
Senator DeWine. It is down to you, Senator.
Senator Hatch. Well, then we are going to let you go. How
is that?
[Laughter.]
Mr. Kim. Thank you, Senator Hatch. It is always good to see
you.
Senator Hatch. Well, thank you. Good to see you. We are
proud of you.
Senator DeWine. Mr. Kim, thank you very much. We appreciate
your testimony and look forward to continuing to work with you.
Mr. Kim. Thank you, Mr. Chairman.
Senator Cornyn. Mr. Chairman I have a letter written by the
Department of Justice Office of Legislative Affairs dated April
12, 2006, to Hon. F. James Sensenbrenner, Chairman of the
Committee on the Judiciary. This letter speaks for itself, but
it addresses the Department's response to Chairman
Sensenbrenner's request for those cases where the Department
has been either admonished or been required to pay attorney's
fees in connection with Section 5 of the Voting Rights Act. I
would ask unanimous consent that it be made part of the record.
Senator DeWine. That will be made a part of the record.
Senator Cornyn. Thank you.
Senator DeWine. Let me invite our second panel to start
coming up right now, and I will begin to introduce all of you.
Robert McDuff is a civil rights and criminal defense
attorney practicing in Jackson, Mississippi. He is currently
Vice Chair of the Board of Directors of the Mississippi Center
for Justice and serves on the Board of Lawyers' Committee for
Civil Rights Under Law. Prior to opening his own practice, in
1992 he was a faculty member of the University of Mississippi
Law School.
Gregory Coleman is a partner in the Litigation Department.
He has an appellate litigation practice in a variety of areas
and has argued and won four cases before the U.S. Supreme
Court. He previously served as the Solicitor General for the
State of Texas from 1999 to the year 2001.
Natalie Landreth is a staff attorney for the Native
American Rights Fund. Ms. Landreth has worked with the Native
American Rights Fund since July 2003 and currently practices
entirely in the area of Federal and State American Indian and
Alaska Native Law. Most recently, she authored a report
entitled ``Voting Rights in Alaska 1982-2006.'' Prior to
joining the Native American Rights Fund, she worked in the
first Office of Tribal Justice in the United States Department
of Justice.
Frank Strickland is a partner in the Atlanta law firm of
Strickland Brockington Lewis and a regular speaker on the topic
of election law. During the 1990's, he served as redistricting
counsel to the Georgia Republican Party and represented two
voters in Jones v. Miller, the 1992 case arising from Georgia's
1991 redistricting. He has been the attorney on a number of
other high-profile election cases, as well.
Juan Cartagena is a civil rights attorney who serves as a
general counsel at the Community Service Society of New York,
where he litigates voting rights cases on behalf of poor
communities. He has held previous positions with the Puerto
Rican Legal Defense and Education Fund and was the Commonwealth
of Puerto Rico's Department of Puerto Rican Community Affairs.
Since 1991, he has represented Latino and African-American
communities in voting rights litigation in a number of States,
including Pennsylvania, New York, Illinois, New Jersey, and New
Hampshire. He also currently serves as co-chair of the New York
Voting Rights Consortium, a collection of major legal defense
funds that protects the voting rights of racial and language
minorities.
We welcome all of you here today. We will start on my
right. Mr. Cartagena, thank you for joining us. You are first.
STATEMENT OF JUAN CARTAGENA, GENERAL COUNSEL, COMMUNITY SERVICE
SOCIETY, NEW YORK, NEW YORK
Mr. Cartagena. Thank you, Mr. Chairman, members of the
Committee. Thank you for the invitation to appear before this
distinguished Committee and testify on S. 2703, the Voting
Rights Act Reauthorization and Amendments Act of 2006. In
particular, I want to focus on the provisions that provide for
language assistance for American citizens who speak English as
a second language. I have been a voting rights attorney since
1981 who has used the promises of equal opportunity and full
political access established in the VRA to assist racial and
language minorities in a number of States.
The Community Service Society, where I work, is an
independent, nonprofit organization that for more than 160
years has engaged in social science research, advocacy, policy
analysis, direct service, and volunteerism to address the
problems of poverty and strengthen community life for all.
Since 1989, we have used the Voting Rights Act and other legal
norms to benefit these most marginalized communities by
ensuring full and fair representation, especially of African-
American and Latino voters.
I will limit my remarks this morning in light of previous
work that I have submitted to the record on the reauthorization
debate before the House Subcommittee on the Constitution as it
considered the reauthorization of the Voting Rights Act. I have
attached those documents to my statement as appendices. These
include the testimony I gave in November, which highlighted the
reauthorization of Section 203 of the Voting Rights Act in New
York City as well as in New Jersey, with a special emphasis on
the voting rights of Puerto Rican voters; a report that I
drafted called ``Voting Rights in New York 1982-2006'' for the
Leadership Conference on Civil Rights, which summarizes the
state of compliance with the three expiring provisions of the
VRA in New York; and an article I drafted for the National
Black Law Journal at Columbia Law School, ``Latinos and Section
5: Beyond Black and White,'' which addresses important issues
for Puerto Rican voters under Section 4(e).
I just want to emphasize a few points for you.
One, we applaud the bipartisan efforts that this Congress
has used to address the critical issues of political
participation for racial and language minorities. The VRA has
consistently received bipartisan support since its inception
and its amendments, and we welcome the manner in which these
important debates have been held.
Two, the right to vote, the very right that is
``preservative of all rights,'' is just too important a right
to delay, impede, or otherwise fail to make fully and
meaningfully available to American citizens who speak English
as a second language. Regardless of the concerns that some
opponents of the VRARA may have about the primacy of English in
our country, democracy is too precious and voting is too
fundamental to condition on full mastery of English for
American citizens in certain areas of the country who have yet
to master English. In saying this, we echo the U.S. Supreme
Court in Katzenbach v. Morgan, which upheld the language
assistance provisions of Section 4(e) for Puerto Rican voters
in the original Act of 1965 as a valid exercise of
Congressional enforcement powers under the 14th and 15th
Amendments by noting that Congress may have questioned at that
time ``whether the denial of a right deemed so precious and
fundamental in our society was a necessary or appropriate means
of encouraging persons to learn English, or of furthering the
goal of an intelligent exercise of the franchise.''
Three, we cannot emphasize enough that the rights we are
advocating for today this morning are the rights of citizens of
this country to full and fair access to the franchise. With the
equally important and pressing matters before the Senate
regarding immigration policy, we cannot conflate these issues.
The Voting Rights Act Reauthorization and Amendments Act, as
currently proposed, addresses the rights of American citizens
who speak English as a second language. Recent research by the
Arizona State University has documented that three-quarters of
all voters who depend on language assistance are native-born.
Section 203 of the Act was created to address concerns of
access to the ballot and under significant educational
disparities as highlighted by higher than average illiteracy
rates for certain language minorities in the U.S. More severe
forms of exclusion for language minority citizens led to the
adoption of Section 4(f)(4) in 1975. Both provisions still
operate today to benefit native-born citizens. Puerto Rican
voters would be a case in point: All of them are U.S. citizens
by operation of law, significant numbers of them are either
monolingual in Spanish on the island or because of educational
disparities in the U.S. have still not mastered English
proficiently here, and circular migration patterns between both
of those points--the U.S. and Puerto Rico--are still present
today.
Four, the major factors which led to Sections 203 and
4(f)(4) are still present today for Latino citizens.
Educational Attainment still lags far behind white or black
counterparts. Illiteracy rates are far higher than national
averages; 75 percent, compared to 18 percent nationwide, speak
a language other than English at home, and Latino registration
rates are lower than either black or white registration rates
nationally.
Finally, Section 203 is self-maintaining. It adjusts itself
depending on changing demographic patterns, even more so with
the amendments in the proposed Act for using ACS data in 5-year
cycles, and contains a bailout provision that is hinged on
improving illiteracy rates for these language minority groups.
All of it demonstrates, consistent with Katzenbach v. Morgan,
that it is a proper exercise of Congressional authority in
furtherance of Congress' enforcement powers under the 14th and
15th Amendments where Congressional power, I would submit, is
at its zenith, even under the current case law of the U.S.
Supreme Court.
I will gladly accept any questions at the appropriate time.
Thank you very much.
[The prepared statement of Mr. Cartagena appears as
submission for the record.]
Senator DeWine. Thank you very much.
Mr. Strickland?
STATEMENT OF FRANK B. STRICKLAND, STRICKLAND BROCKINGTON LEWIS,
LLP, ATLANTA, GEORGIA
Mr. Strickland. Good morning, Mr. Chairman and members of
the Committee, and thank you for the opportunity to provide
testimony regarding the important issue of the renewal of
certain provisions of the Voting Rights Act. Although I have
been involved in a number of redistricting cases, as you
mentioned in my resume, I want to talk to you today in a
different capacity, and I am not here in an official capacity,
but I am one of five members of the Fulton County Board of
Registration and Elections, which is a bipartisan board in
Fulton County which has general supervision of all voter
registration and election processes in Georgia's largest
county.
First, I would raise a question: Should Georgia continue to
be a covered jurisdiction? The election results in Georgia over
the years, not only in Fulton County but statewide, suggest
that the answer is no. In 1969, there were 30 African-American
office holders, 14 of whom served in the legislature. By 2001,
this number had increased to 611. And the makeup of Georgia's
Congressional delegation is even more revealing. Four of 13
Members of Congress are African-American, and that share of the
Georgia House seats, 31 percent, exceeds the African-American
population in the State. And at the State level, there is a
significant number of African-American elected officials, 9 of
34, including our Attorney General, and members of the Supreme
Court and court of appeals.
The experience in Fulton County is similar. The Board of
Commissioners of Fulton County has a 4-3 African-American
majority. The mayor of Atlanta has been an African-American
since 1972. The Fulton County legislative delegation to the
Georgia General Assembly includes a majority of African-
American representatives.
In addition, an examination of the people who run the
elections in Fulton County is illuminating. Approximately 95
percent of the Election Department staff is African-American.
In primary and general elections, more than half of the paid
poll workers in the 356 voting precincts in Fulton County are
African-American.
Some might suggest that rather than trying to escape
coverage in renewal legislation, Georgia, and particularly
Fulton County, should pursue the bailout mechanism under
Section 4. That section allows a jurisdiction to bail out of
the preclearance requirements of the Act if it has had no
objections interposed by the Justice Department for a period of
10 years; in other words, it has to have a perfect record. That
might appear to be the obvious choice for Fulton County, but
there is a catch. Here is how it works. Because there are 11
cities within Fulton County, if any one of those cities has had
a single objection interposed by the Department during the 10-
year period, Fulton County is automatically prevented from
seeking to bail out of the preclearance requirements, even if
its own 10-year record is flawless.
A recent example that stopped Fulton County from pursuing
the bailout provision resulted from the failure of one of those
cities to obtain timely preclearance of one or more annexations
into the city in an area where the African-American population
is probably less than 5 percent. This means that Fulton County
has to start over and achieve a new 10-year record of
perfection in its own preclearance procedures and hope that all
the cities in the county will also achieve perfection. There
has got to be a better way to do that, and I see no reason why
Fulton County's perfect record should not stand alone and that
the time period for compliance should not be shortened.
Even if these jurisdictions remain covered, Congress should
still examine what changes should remain covered. As another
example, the Fulton County Election Board spends considerable
staff and board time reviewing and approving simple changes in
the location of a polling place from one public building to
another. In many instances, the polling place is in a church
and is being moved to another church because the current
location is no longer available for use as a polling place.
Similarly, the simple task of setting a date for a special
election must also be precleared, despite the fact that the
requirements for special elections are a matter of Georgia law
which cannot be varied by any action of the Election Board.
I think I am about to run out of time, so I will conclude
by saying thank you for your consideration of my comments, and
I would ask that my written testimony be made a part of the
record and I be allowed to revise and extend my remarks where
appropriate.
Thank you very much.
Senator DeWine. It will be made a part of the record.
[The prepared statement of Mr. Strickland appears as
submission for the record.]
Senator DeWine. Ms. Landreth?
STATEMENT OF NATALIE A. LANDRETH, STAFF ATTORNEY, NATIVE
AMERICAN RIGHTS FUND, ANCHORAGE, ALASKA
Ms. Landreth. Good morning. I would like to thank the
Committee for allowing me to speak today. It is a true honor to
be here. My name is Natalie Landreth, and I am a staff attorney
at the Native American Rights Fund in Anchorage. I am an
enrolled member of the Chickasaw Nation of Oklahoma and a
descendent of the Imatobby family, who survived the Trail of
Tears.
I am here to discuss the impact of the Voting Rights Act in
Alaska and the need for reauthorization and enforcement of the
Act. Alaska is subject to Section 4(f)(4) and 203--the minority
language provisions--as well as Section 5, the preclearance
requirement. Under the auspices of the Lawyers Committee for
Civil Rights and the Native American Rights Fund, I prepared a
report detailing the Alaska Native experience under the Act.
The evidence gathered in preparation of the report shows that
there is still a very real need for minority language
assistance and Federal oversight in the form of preclearance.
To our surprise, however, we also discovered, one, that, with
all due respect to the State of Alaska, it has been out of
compliance with the VRA for more than 30 years and, two, that
the Act has largely not been enforced in Alaska.
First, however, I must give you a small picture of the
Alaska Native population to enable you to understand the
reality on the ground. It is naturally very different than the
previous two scenarios described. Alaska has the single largest
indigenous population in the United States at 19 percent. Most
of these people reside in rural Alaska, which is largely
inaccessible by road; all supplies must be flown in. It
consists of about 200 Native villages with no services, hotels,
roads of any kind. Only 70 to 75 percent of these homes even
have sanitation systems, and the rest use well water. They live
off subsistence, literally fishing and hunting off the land. In
places like this, a ballot box often has to move up and down
the river on Election Day in order to hit all of the polling
places, and you have half an hour to vote. In November, this is
no mean feat. On Election Day in 2004, 24 of these villages did
not even have polling places.
Today, an Alaska Native is likely to be unemployed--fewer
than 50 percent have jobs--and when he does get a job, he will
earn just 50 to 60 percent of what non-Natives earn in Alaska.
As a result, they are 3 times more likely than other Alaskans
to be poor. They also have the lowest level of education. At
the time the VRA was extended to Alaska in 1975, only 2,400
Natives had graduated high school at all. This is incredibly
important because this is now your elder population that are
having a very hard time understanding the English ballot.
Seventy-five percent of all Alaska Natives have now
graduated from high school. There have been gains, but at the
same time, our dropout rate is actually increasing. The 2005
standardized test results reveal that 80.5 percent of the new
Alaska Native voters, graduating seniors, did not pass reading
comprehension in English--80.5 percent.
This enduring but disadvantaged population speaks about 20
different indigenous languages. Yet it is a well-known fact
that Alaska does not provide ballots or election materials in
any languages other than English and Tagalog out in Kodiak
Island. Yet all of Alaska is covered by 4(f)(4), and 14 census
areas are also covered by 203. The Native population still
meets or exceeds all the population and illiteracy benchmarks
set forth in the VRA. Yet Alaska provides nothing more than
intermittent oral assistance upon request.
In addition to this clear noncompliance with the letter of
the law, we know there is a real need for language assistance.
In the Bethel census area, a Yup'ik-speaking region, 21 percent
of the population is limited English proficient, and there are
17 villages in which Yup'ik is the only language that is
spoken. It is one of the oldest written languages in North
America. Signs are Yup'ik, school is taught in Yup'ik, and the
Pledge of Allegiance is recited in Yup'ik. They consider it
their first language.
We now know also that the English ballot is interfering
with the exercise of the right to vote. For example, in 1995,
18 non-English-speaking Inupiat sued the city of Barrow
claiming that the absence of written materials in Inupiaq and
the absence of a standardized oral translation led them to vote
the wrong way. A class of elders wanted to vote to institute an
alcohol ban to protect the children being born in the village,
and because they did not understand a single-sentence ballot
measure in English, they accidentally voted to repeal that
measure.
Alaska is also subject to preclearance, and there has only
been one objection in Alaska's history. But it is hard to
overstate the importance of that objection.
While the Alaska Supreme Court approved the redistricting
plan put together after the 1990 Census, the astute staff of
the Department of Justice caught a retrogressive district
called District 36 that showed evidence in racially polarized
voting that actually reduced the Native voting-age population.
What the court had not objected to and what would have been
permissible under Alaska was only prevented by the intervention
of the DOJ. Without it, Alaska may have been subject to
retrogressive policies throughout the 1990's until the next
census.
I see that I have, unfortunately, run out of time, so I
would like to--I apologize. I would like to submit the entire
text of my comments for the record, if I may.
[The prepared statement of Ms. Landreth appears as
submissions for the record.]
Senator DeWine. Thank you very much.
Mr. Coleman?
STATEMENT OF GREGORY S. COLEMAN, WEIL GOTSHALL AND MANGES,
AUSTIN, TEXAS
Mr. Coleman. Thank you, Mr. Chairman. I appreciate the
opportunity to come and visit with the Committee today. As I
noted in my written remarks, I would like to address the issue
of the reauthorization of the preclearance provisions of
Section 5. I believe that preclearance should not be
reauthorized. I believe that it is unnecessary, unfair and that
it would probably be unconstitutional.
With respect to the necessity of Section 5, there is a lot
of data that has been put before the Congress, both in the
hearings on the House side and now on this side. But that data,
in my view, does not amount to a justification for the
reauthorization of Section 5. It is largely anecdotal. It does
not establish a need for preclearance provisions at all, and it
certainly does not establish a need for preclearance provisions
in the States only and political subdivisions that have
historically been subjected to preclearance. This is not 1965.
This is not 1975.
The bill that has been introduced notes that the original
problems that the Voting Rights Act sought to remedy have in
fact largely been remedied and moves the focus toward, I think,
what it calls secondary barriers. There are no findings in the
record, and there cannot be any findings that those secondary
barriers, to the extent that they really do exist, exist only
in the jurisdictions that were pegged to be covered under
Section 5 in the 1960's and 1970's.
Most of the significant litigation in the Voting Rights Act
area in the past 10 years has been Shaw-based, suggesting a
need to get rid of preclearance. An analogy that one might make
is another very successful statute and that is the Americans
with Disabilities Act. Enforcement of that Act has been very
successful, and yet, Congress did not require every company,
every city, every State to submit its building plans to the
Department of Justice for review before they have been
approved, but has relied on enforcement mechanisms. Those
enforcement mechanisms have been extremely successful, and as
noted by those who have testified today, as well as in prior
hearings, Section 2 and other provisions of the Voting Rights
Act have been extremely successful, and they remain a very
potent force to remedy any voting rights issues that may exist
today or that may come up in the future.
There is, as noted today by Mr. Kim, more Section 2
litigation outside the covered jurisdictions. Perhaps Congress
might want to consider freeing all the covered jurisdictions
from Section 5 and putting all of the remaining States and
political subdivisions under coverage for a period of time, so
that they can remedy the problems that they appear to have.
It is also unfair--I note in my written remarks that the
preclearance provisions, while very effective in the early
years of the Voting Rights Act, have become largely rote and
ineffective. In the tens of thousands of submissions in recent
years, the objection rate has moved to where it has become
infinitesimally small. Even among those objections, there are
many that are withdrawn or that are simply not good objections,
and ultimately shown to be so. But there is no case today when
you have a team of lawyers that are essentially costing States
and political subdivisions within those States tens or hundreds
of millions of dollars in the preparation of Section 5
preclearance submissions, when you have an objection rate that
is in the single digits per 10,000 submissions. That type of
enforcement, I think, is costly and no longer effective.
The coverage formula, too, is not changing, and yet none of
the evidence that is before the Congress contains any
connection to the coverage formulas that the Congress initially
put in place.
Finally, I would like to just say a word that the Supreme
Court has increasingly recognized the federalism concerns that
Section 5 implicates, and there is a strong possibility that if
reauthorized, that Section 5 would very shortly be struck down
as an unconstitutional exercise of Congress's power.
I am available for questions at the Committee's bidding.
[The prepared statement of Mr. Coleman appears as
submission for the record.]
Senator Hatch [presiding]. Thank you.
Mr. McDuff?
STATEMENT OF ROBERT B. MCDUFF, ATTORNEY, JACKSON, MISSISSIPPI
Mr. McDuff. Thank you, Mr. Chairman. As a native of
Mississippi, who lives there and has spent most of his life
there, and as a lawyer who has represented black voters in a
number of voting rights cases in Mississippi and elsewhere, I
want to urge you to renew Section 5, and I want to talk a
little bit about the experience in Mississippi.
After the Civil War and the passage of the 14th and 15th
Amendments, some progress was made in the racial integration of
public life in the south, but when the Federal Government lost
interest after Reconstruction, it was all nullified by actions
like those taken at the Mississippi Constitutional Convention
of 1890, and the south was plunged into decades of horrific
racial discrimination. It was only after Congress passed the
1964 Civil Rights Act and the 1965 Voting Rights Act that the
promise of those amendments began to be restored. But in
Mississippi, as in some other States, Government officials
continued to try to nullify and minimize the vote of black
citizens, leading the Department of Justice to object to voting
changes in Mississippi 169 times since the passage of the Act,
112 of those since the Act was reauthorized in 1982.
Now, Section 5 has led to a great deal of progress in
Mississippi and elsewhere. In absolute numbers, Mississippi has
the highest number of black elected officials among any of the
50 States. But despite the fact that it also has the highest
percentage of black population among the 50 States, no black
citizen has been elected to office in a statewide election in
Mississippi in the 20th century, and at every level of
government, viewed from a statewide perspective, the percentage
of black officeholders is lower than the black voting-age
population percentage in the State, and the percentage of white
officeholders is higher than the percentage of white voting-age
population, and we continue to see disturbing signs of the
destructive role that race plays in public life.
In the second most recent legislative redistricting process
in Mississippi, the one in 1991 and 1992, the legislature
defeated a proposed redistricting plan that would have
increased the number of black majority districts with
legislators repeatedly referring to it on the floor as the
``black plan,'' and some privately calling it the ``nigger
plan,'' even though it was supported by a biracial coalition of
20 black legislators and 38 whites.
The legislature passed a plan that created fewer majority
black districts than this proposal, but fortunately, the
Department of Justice objected to it on racial purpose grounds,
citing as part of the evidence these racial characterizations.
In 2001, the all-white city council of Kilmichael,
Mississippi, canceled city elections 3 weeks before they were
to be held, after new data showed the town's voting population
had become majority black and after, for the first time in the
city's history, a number of black citizens qualified to run for
office. Fortunately, the Department of Justice objected to that
cancellation.
In 2003, in the most recent statewide election in
Mississippi, a 46-year-old black candidate for State treasurer,
who had served as the State's Director of Finance
Administration, who had a wealth of public finance and private
sector experience, was defeated in an election marked by
racially polarized voting by a 29-year-old white candidate,
whose only experience was that he had worked as a mid-level
bank employee, demonstrating that it is still difficult for a
black person, no matter how qualified, to be elected to
statewide office in Mississippi.
In 2004, a sitting white trial court judge, running against
the only black supreme court justice in the State, used the
slogan ``one of us'' when referring to himself, implying that
there is a them, and his opponent is one of them, a throwback
to a slogan condemned as a racial appeal 20 years earlier by a
three-judge Federal District Court in Mississippi, when it was
used by a white congressional candidate, who defeated a black
candidate trying to become Mississippi's first black Member of
Congress in the 20th century.
And finally, in 2005, a three-judge Federal District Court
had to enjoin the city of McComb, Mississippi, from changing
the qualification requirements and removing a black city
council member without seeking preclearance of the change.
These examples show that, unfortunately, some of those in
power still fall back on old ways and old prejudices. William
Faulkner said ``the past isn't dead, it isn't dead, it isn't
even past.'' And certainly that is not always true. Some things
have certainly changed and some of the past is in the past. But
we have to recognize the echoes and the vestiges that still
exist, and if the protections of section 5 are withdrawn, I
think we will see some elected officials changing the rules and
changing the districts to take advantage of the racially
polarized voting that still exists--this is not anecdotal, this
is systemic--to diminish the racial integration that has been
achieved in Government.
And so I join with many Mississippians, black and white, to
urge you to renew the Voting Rights Act and help us build on
the progress that has already been made.
Thank you.
[The prepared statement of Mr. McDuff appears as submission
for the record.]
Senator Hatch. Thank you.
Senator Cornyn, you were here before me. Would you care to
start?
Senator Cornyn. Thank you, Mr. Chairman. I have a few
questions.
I think at the outset of these hearings, members of the
Committee on both sides of the aisle stated one of our goals is
to pass a reauthorization of the Voting Rights Act that would
be sustained, and congressional will sustained, in the face of
any litigation that might reasonably be successful to overturn
it. So it is for that reason I want to focus some of my
comments on the preclearance requirements, and ask Mr. Coleman
to start with, what has the Supreme Court said about how they
will regard Section 5 preclearance requirements? In other
words, what sort of burden is there on Congress to demonstrate
the necessity for those preclearance requirements, which are
admittedly intrusive, into local electoral affairs in those
jurisdictions covered? What sort of burden is required on
Congress?
Mr. Coleman. Well, the Supreme Court, in South Carolina v.
Katzenbach, one of the earliest voting rights cases, upheld
Section 5, and the Court did it so again on the Rome
litigation.
In more recent years, in Monterey County v. Lopez, members
of the Court began to recognize more the federalism concerns.
Justice Thomas himself indicated that there was a strong
likelihood that it was becoming unconstitutional.
Many scholars have spoken on this issue and have looked to
the case of City of Boerne v. Flores, where the Court said, in
the 14th Amendment context, that Congress, in acting, under
Section 5 of the 14th Amendment, needs to ensure that its
legislation is congruent and proportional to the problems that
it seeks to fix. The Court has never specifically said that
that would apply to Section 2 of the 15th Amendment, although
in the early litigation over the Voting Rights Act in the
Katzenbach v. Morgan case, the Court did rely strongly on the
14th Amendment.
In other courts, cases have suggested that the 14th and
15th Amendments would be considered together.
So the congruence and proportionality analysis that the
Court set out suggests that there has to be a strong
evidentiary link between the data that is presented and a very
real and cognizable systemic violation of constitutional rights
or threatened violation of those rights. I do not believe that
the record before Congress today suggests that there continues
to be a systemic violation or a threatened systemic violation
of those rights.
Senator Cornyn. Mr. Coleman, when looking at the empirical
evidence that does exist--and I hope we get that evidence in
front of us so we can take a hard look at it and understand it
better--are we talking about an all or nothing proposition, in
other words, or will it be on the basis of individual political
subdivisions that that analysis would have to be made, whether
there is sufficient justification based on the evidence of
maintaining the preclearance requirements in Section 5?
Mr. Coleman. Congress could, if it desired, make specific
findings that relate to individual States or individual
political subdivisions. Thus far, to my knowledge, there has
been no attempt to do that. There has simply been a proposal to
reauthorize the coverage as it exists and has existed since the
1970's.
Senator Cornyn. Mr. Strickland, you talked about the
intrusiveness and the burdens on political subdivisions when it
comes to the preclearance requirements, and then also about the
bailout provision. Some might say, well, you have a bailout
provision, so why shouldn't we just maintain the preclearance
requirements? Those seem to me to be apples and oranges. But
could you talk about the financial and other burdens on
political subdivisions to comply with the preclearance
requirements?
Mr. Strickland. Well, the example that I gave in my
testimony was a pretty simple process of changing a polling
place from one location to another. It is essentially a
ministerial function. It is not normally a public building. But
what is required as a practical matter is election department
staff has to produce a map of that area, and it has to locate
the old polling place, the new polling place, and the election
board will just get a sheaf of papers about--suppose they are
changing a dozen or 15 or 20 polling places--we would just get
a sheaf of papers that show Point A and Point B. There is never
an issue about it, and to my knowledge--I served on the
election board in the `70's and I am now serving again--I do
not remember a single instance when there has ever been a
problem with any of these, what I call ministerial functions,
in relocating a polling place from one place to another.
So it seems to be an unnecessary consumption of time,
energy and expense by the election department staff in
complying with that aspect of preclearance.
Senator Cornyn. If I can ask just one final question of any
member of the panel. Are any of you familiar with any studies
or empirical evidence that indicates that there are significant
differences and outcomes, in other words, of minority voting
participation in those jurisdictions that are covered by the
preclearance requirements of Section 5 versus those that are
not?
Mr. McDuff. Senator, I am certainly not aware of any. I do
not know that anyone has undertaken that sort of study, and I
am not quite sure how one would do it. What I think we do know
is that the formula that was created by Congress in 1965 and
has been modified several times, has been repeatedly upheld by
the Supreme Court as a constitutional exercise.
I do think that a record is being built, both in the House
and here, about the problems that still exist in the
jurisdictions that are presently covered.
Now, one, I guess, could attempt to build a similar record
in other jurisdictions that are not covered. I do not know if
anyone has tried to do that, but I think the more you expand
the scope of Section 5, the more of a record you need to build,
and the greater risk you take that it might be held
unconstitutional.
Mr. Coleman. Very briefly, Senator. I believe the Gaddie-
Bullock studies that are in the record very systematically show
that there are, in fact, no differences.
Senator Cornyn. Anyone else?
Mr. Cartagena. Yes. If I may, Senator. The effectiveness of
Section 5 cannot only be measured by the number of objections
issued by the Department of Justice. There is a significant
deterrent effect, a prophylactic effect upon these
jurisdictions that are covered by Section 5. In many ways, we
really cannot speak about Section 5 without also speaking about
what are called more information request letters, MIRs, that
are issued by the Department of Justice to numerous
jurisdictions. MIRs get responded to. They basically are
simply, do you have more information that allows us to make a
determination? Some States withdraw the changes. Some States
supersede them. Some States ignore it. In all those three cases
I just cited, it demonstrates the effectiveness, as well, of
Section 5 objections above and beyond the number of objections
issued.
I cited a study by Fraga and Ocampo out of Stanford
University in my materials appended to my statement, in which
they have researched the MIRs that were issued in 1989 through
2004. And their study demonstrates that it doubles the amount
of objections--excuse me--submissions that would have otherwise
received a denial of preclearance just because many
jurisdictions withdraw the request upon receiving a more
information request letter from the Department of Justice.
Ms. Landreth. Senator, I would like to add one thing to
respond to some of the comments that were made that would
hopefully also help answer your question. One of the aspects
that has been discussed is the burdensome requirement of having
to submit paperwork for preclearance for simple things such as
a polling change. In Alaska, that is an incredibly big deal
because, if you move a polling station in a community that does
not have cars and operates by snow machines or walking in 10-
below weather in November, you may actually disenfranchise an
entire community.
We have had some of that situation in Anchorage, where they
move polling places out of very poor places in Anchorage, and
most of the folks could not get time off of work to go to the
new polling station, so there are examples of even something
like that that another jurisdiction with adequate
transportation and adequate systems established would be very
ministerial and seem unimportant. In Alaska, it is actually an
incredibly important aspect of preclearance.
Senator Hatch. Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Mr. McDuff, I had watched some of this before I came over
here. You heard from the hearing yesterday, and others have
said, that Section 5 is so successful we do not need it any
longer. You practice in a covered jurisdiction. I would assume
you have seen some significant progress in minority
participation over the decades. If we did away with Section 5,
if that is no longer operational, does that really provide any
kind of deterrent, or would it be your position that we should
keep Section 5 as a deterrent?
Mr. McDuff. Yes. It does provide a tremendous deterrent. I
cannot tell you how many times I have talked to legislators,
city council members, lawyers in the State Attorney General's
Office, or lawyers for localities who have really now
internalized sort of the goals of Section 5, and who, when
voting changes are being made, assess the impact on all groups,
all racial groups, and reach out to all groups, to try to
determine if a solution can be developed that satisfies
everyone's concerns in light of the very deep racial fault line
that still exists in the south and in other parts of the
country due to the history of discrimination.
We have a persistence, I know in Mississippi, and I think
in a number of other places, of racially polarized voting. I
gave an example a minute ago that clearly the best qualified
candidate for State treasurer in Mississippi lost as a result
of racially polarized voting. That is a systemic problem that
still exists.
And the problem is that if you withdraw the protection of
Section 5, two things can happen. No. 1, the sorts of officials
who canceled the elections in Kilmichael, Mississippi, when it
looked like black candidates would be elected--those sorts of
people will take advantage of the absence of those protections
and will change the rules and will change the district lines.
Senator Leahy. Conversely, is it a protection for those
people who want to do what is right?
Mr. McDuff. Oh, yeah, exactly, because everyone knows that
the law has to be satisfied and that retrogression is illegal,
and it has become a part of people's thinking and of the
process of local government to make sure that doesn't happen. I
think this is--
Senator Leahy. So you would not change the existing
coverage formula requiring preclearance of changes?
Mr. McDuff. No, I wouldn't. I think it has worked very
successfully, and I think there is still a need for it.
Senator Leahy. Thank you.
Ms. Landreth, I listened to what you were saying about
Alaska. A majority of the actions brought to enforce Section
203 have been in the last 3 years, 4 years; am I correct?
Ms. Landreth. In general we have had no enforcement actions
under 203 in Alaska.
Senator Leahy. Was there insufficient enforcement of
Section 203 previously?
Ms. Landreth. It has never been complied with in Alaska,
and it has never been enforced in Alaska, so, yes, in my
opinion, there is insufficient enforcement of Section 203.
Senator Leahy. So you wouldn't do away with it?
Ms. Landreth. Absolutely not. I think Alaska is the perfect
example of a climate where people are discussing immigration,
and I have seen in some articles, confusing the Voting Rights
Act and the bilingual ballot with the Voting Rights Act. And
the fact is that these are indigenous American citizens, who
don't understand the English ballot to such a degree--and here
is a perfect example--they didn't understand to such a degree
that they actually voted for an English-only law in Alaska,
that was then subsequently struck down by our Supreme Court
because they had no written translation, and the poll workers
simply told them, ``Just vote yes.''
Senator Leahy. I will go to you, Mr. Cartagena. How will
the bill provision--before we get into the language--how about
the bill's provision permitting recovery of expert witness
fees? How does that allow the enforcement of the Voting Rights
Act language assistance provisions?
Mr. Cartagena. It is a very important point, Senator.
Section 203 enforcement actions really have not, from what
I can see in the case law, have not come to judgment. Many
times these actions are settled well before judgment.
But we have--and the cases that I have worked on indicated
to me to need either historians or other experts to allow us to
present a full picture of both Section 203 noncompliance and
potentially Section 2 violations. In those kind of situations,
recovery of expert attorney fees--excuse me--expert fees in a
successful action that does come to judgment, would be a very,
very important tool to use. We are, as you can imagine, private
attorneys general. The Department of Justice has done
incredible work under Section 203 enforcement in the last
several years. But there is so much work to do, and there is
just too much noncompliance.
And the state of noncompliance is what it is, as I have
indicated in the report, particularly like in New York and New
Jersey, that we don't have the person power to get to all of
these jurisdictions. The ability to collect expert fees would
be an incredible assistance in that regard.
Senator Leahy. And you would want to maintain the
preclearance provisions of--
Mr. Cartagena. Yes, I do, and I think the preclearance
provisions, Senator, are important on various levels. And I
have indicated the deterrence value already to the panel. I
also would indicate--and this is where I differ with Mr.
Coleman--Section 5 is a model of the constitutional exercise of
both the 14th and 15th Amendment power of the Congress, in
large part because it is time limited, it is geographically
focused, and because it has bailout provisions. All of those
elements, I mean, where Mr. Coleman cited the Lopez case, I
think I cited on my last footnote of my testimony, on page 285,
that the Supreme Court noted that in short the Voting Rights
Act, by its nature, intrudes on State sovereignty. The 15th
Amendment permits this intrusion, however, and a holding today
adds nothing of constitutional moment to the burdens the Act
imposes, close quote. And it said that when it talked favorably
about the constitutionality of Section 5.
Senator Leahy. My time has expired. I have other questions,
especially of Mr. Coleman and others, and I will submit those
for the record.
I understand Senator Biden is on his way over here.
Senator Cornyn [presiding]. Thank you, Senator Leahy.
I just have a very few more questions myself. Just out of
curiosity, Mr. McDuff, you indicated that clearly the best
candidate for State treasurer lost in Mississippi. That was an
African-American candidate, I take it. What is the percentage
of black voters in Mississippi?
Mr. McDuff. The black--
Senator Cornyn. At the time of that election.
Mr. McDuff. The black voting age population, under the 2000
Census, is 33 percent.
Senator Cornyn. Was that candidate a Democrat, or
Republican, insurance Independent?
Mr. McDuff. He was a Democrat. He did lose. There was
another white Democrat running for an open seat on a down-
ticket race, the Attorney General, who won with 66 percent of
the vote. So this was not a situation where Republicans swept
all statewide seats during the election.
Senator Cornyn. That was Michael Moore?
Mr. McDuff. It was actually his successor, Jim Hood, right.
Senator Cornyn. His successor, all right.
Mr. McDuff. Mike Moore had retired at the end of his prior
term.
Senator Cornyn. OK. Now, the Governor and the two United
States Senators from Mississippi are Republicans, are they not?
Mr. McDuff. That's true.
Senator Cornyn. I just wanted to probe a little bit about
your confidence level that this candidate lost because he was
an African-American, when 31 percent of the voting population
is African-American, and when other high-level statewide
officials elected are Republicans, how can you state with such
confidence that that demonstrates the nature of polarized
voting, or that this candidate lost because he was an African-
American?
Mr. McDuff. The polarized voting is clear from some
statistics I have set out in my written testimony. Of the 25
majority black counties of Mississippi, Mr. Anderson, the 46-
year-old black candidate who had this history of public finance
and private sector experience, won 24 of the 25. Of the
majority white counties, he won 18 and lost 39. It was very
clear that he was treated differently in white areas as
compared to black areas. Again, it was not a Republican sweep.
In fact, most of the statewide offices were won by Democrats
that year, in 2003. The Governor was Republican. I believe
every other--the Lieutenant Governor was Republican. I believe
every other down-ticket race was won by a Democrat.
But here is what is important, to me. The treasurer's
office and the Attorney General's office were both open seats.
In the Attorney General's race, the white candidate won with
nearly two-thirds of the vote, in a down-ticket ballot with an
open seat. The black candidate, 46-years-old with a wealth of
experience, lost to a 29-year-old white candidate who had very
little experience. In the Attorney General's race, the white
Democrat won. In the treasurer's race the white Democrat lost.
I have no doubt in my mind that if the two treasurer candidates
had been of the same race, Gary Anderson, the 46-year-old
Democrat with a wealth of experience, would have won over the
29-year-old candidate who had no relevant experience.
Senator Cornyn. I do not question the sincerity of your
statement. I just would note from my experience--and I think
shared by other people who run for statewide office--the
elections are usually multifactorial and not--it is hard, even
though sometimes people tend to point to a single cause, it is
hard I think to justify it.
Mr. McDuff. And I don't disagree with the multiplicity
factors--
Senator Cornyn. Since my time is limited--
Mr. McDuff. I'm sorry.
Senator Cornyn.--let me, please, go to ask one other
question. This has to do with the legal standard. Mr. Cartagena
made I think a good point talking about the legal standard that
has been applied, and Mr. Coleman has talked about that too,
for maintaining the preclearance requirements in those
jurisdictions that are covered. But I would like to know--and
maybe we will start with you, Mr. Coleman--in terms of the
ultimate protection for minority voting rights, what additional
protections, if any, are provided by the preclearance
requirements under Section 5? In other words, if a lawsuit is
filed by the Department of Justice for violating the Voting
Rights Act, will they look to the standard vote in Section 2
and Section 5, or is there somehow, are minorities
disadvantaged in those areas where the preclearance requirement
no longer exists?
Mr. Coleman. A Section 5 lawsuit would largely simply
determine whether he should have precleared something. If the
U.S. is filing a lawsuit alleging a violation of voting rights,
it would ordinarily be brought under a substantive provision,
Section 2 or Section 203 that has been talked about. So that
the Section 5 litigation tends to be really very little of the
law suits given the Department's lack of recent activity in the
Section 5 area. So those lawsuits would generally be under the
substantive provisions. The Department of Justice has been
active in those areas. Private lawyers have been very active in
those areas. In my view, Section 5 adds very little to the mix.
Ms. Landreth has talked at length about violations that
continue to exist in Alaska. My understanding is the Department
of Justice hasn't interposed an objection in Alaska since 1994
or something like that. There are bad people, but by and large,
the covered jurisdictions are in compliance as much as or more
than jurisdictions who are not covered under the provision. At
this day and age there is simply no added protection or use
that comes from the continuation of Section 5.
Senator Cornyn. Ms. Landreth, I thought you gave a good
sort of an example of how different parts of the country
perhaps should be regarded differently based on geography and
history and experience, as opposed to what Congress is
especially good at as the one-size-fits-all, but I thought the
point you made was an interesting one.
If, as Mr. Coleman says, that there have not been
objections interposed in Alaska by the Justice Department, can
you explain the lack of private litigation or other litigation
involving the sorts of violations that you have alleged?
Ms. Landreth. I am glad that you asked that question,
because that is what sticks out like a sore thumb to us as
well. I have been practicing in Alaska for only a few years.
There has only been one case brought about Section 203
violations. It was settled, so there is no written decision. It
is only available at the clerk's office. But it is indicative
of other situations that have happened. In a situation where
almost half the children are born with fetal alcohol spectrum
disorder, the elders tried to pass a ballot measure to ban
alcohol in the village, and then the ``young 'uns'', who didn't
want them to do that, would translate the ballot for them,
conveniently telling them to vote against it, and, of course,
defeat their own ability to participate in their own democracy.
And one of the interesting aspects of that--it is
unfortunate there is no written decision--but we have found,
when I tell other folks in Alaska this story, other villages
have said, that happened to us too. Kasigluk, Akiachak, Akiak,
all those communities had the same issue, and people have not
brought enforcement. I think--
Senator Cornyn. Why not?
Ms. Landreth. That is a very good question. I wish that I
had the answer to that. One part of the answer to that question
may be that although I won't claim that our study that we have
recently done is comprehensive, it is the first of its kind to
actually study what Alaska is doing versus what it was supposed
to have been doing. I think this is the first time it has been
widely known that Alaska has not complied with these aspects of
the Act.
Senator Cornyn. And you say widely known. Is that because
of the reports that you have recited to us here?
Ms. Landreth. Yes. I believe our 50 or so page report has
been distributed fairly widely, both within the State
Government, to our representatives here in Congress, and to
communities in rural Alaska, who--several of those that I
vetted it through to make sure I was portraying their
communities accurately, had no changes to make.
Senator Cornyn. Thank you.
I think the presentations have been very helpful to the
Committee. Obviously, I am the only one left here, but that is
not for lack of interest I assure you. The Senators and the
Senate, usually we have to multi-task and have a lot of
conflicting hearings and requirements, including floor
activity.
What I would do is to say thanks to each of you for your
testimony. Of course, your written testimony is going to be
made a part of the record in addition to your oral comments.
Customarily we leave the record open for a period of time,
for 1 week in this case, for members of the Committee who were
not able to come to ask written questions, or of those who were
able to come to followup with written questions. So I would
just ask you when you get those, if you get those, please
respond to those as promptly as you can so we can have a
complete record for our further consideration.
Thank you very much, and the hearing is now adjourned.
[Whereupon, at 11:07 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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