[Senate Hearing 109-822]
[From the U.S. Government Publishing Office]
S. Hrg. 109-822
REAUTHORIZING THE VOTING RIGHTS ACT'S TEMPORARY PROVISIONS: POLICY
PERSPECTIVES AND VIEWS FROM THE FIELD
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
JUNE 21, 2006
__________
Serial No. J-109-88
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
31-269 WASHINGTON : 2007
_____________________________________________________________________________
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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
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Subcommittee on the Constitution, Civil Rights and Property Rights
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Ajit Pai, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 5
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 4
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 220
WITNESSES
Adegbile, Debo, Associate Director of Litigation, NAACP Legal
Defense and Educational Fund, Inc., New York, New York......... 6
Canon, David, Professor, Department of Political Science,
University of Wisconsin, Madison, Wisconsin.................... 15
Park, John J., Jr., Assistant Attorney General, Office of the
Attorney General, Montgomery, Alabama.......................... 13
Reynolds Gerald A., Chairman, U.S. Commission on Civil Rights,
Assistant General Counsel, Kansas City Power & Light Company,
Kansas City, Missouri.......................................... 9
Swain, Carol, Professor of Political Science and Professor of
Law, Vanderbilt University, Nashville, Tennessee............... 18
Wright, Donald M., General Counsel, North Carolina State Board of
Elections, Durham, North Carolina.............................. 11
QUESTIONS AND ANSWERS
Responses of Debo Adegbile to questions submitted by Senators
Kennedy, Leahy, Cornyn, and Coburn............................. 29
Responses of David Canon to questions submitted by Senators
Coburn, Leahy, Cornyn and Kennedy.............................. 82
Responses of Gerald Reynolds to questions submitted by Senators
Coburn and Cornyn.............................................. 104
Responses of Carol Swain to questions submitted by Senators
Coburn and Cornyn.............................................. 112
Responses of Donald Wright to questions submitted by Senators
Coburn, Cornyn, Kennedy, and Leahy............................. 115
Questions submitted by Senators Cornyn, Sessions, and Coburn to
John J. Park, Jr. (Note: Responses to questions were not
received as of the time of printing, March 15, 2007)........... 126
SUBMISSIONS FOR THE RECORD
Adegbile, Debo, Associate Director of Litigation, NAACP Legal
Defense and Educational Fund, Inc., New York, New York,
statement...................................................... 129
American Constitution Society for Law and Policy, Pamela S.
Karlan, Washington, D.C........................................ 154
Atlanta Journal-Constitution, Lynn Westmoreland, May 29, 2006,
article........................................................ 177
Blum, Edward, American Enterprise Institute, May 2, 2006, article 178
Canon, David, Professor, Department of Political Science,
University of Wisconsin, Madison, Wisconsin, statement......... 180
Fitzpatrick, Duross, Senior Judge, U.S. District Court for the
Middle District of Georgia, May 31, 2006, letter............... 211
Keyssar, Alexander, Matthew W. Stirling, Jr. Professor of History
and Social Policy, Chair, Democratic Institutions and Politics,
Kennedy School of Government, Harvard University, Cambridge,
Massachusetts, statement....................................... 212
National Council on Disability, Lex Frieden, Chairperson,
Washington, D.C., letter....................................... 222
Park, John J., Jr., Assistant Attorney General, Office of the
Attorney General, Montgomery, Alabama, statement............... 225
Pettus, Emily Wagster, Associated Press, article................. 243
Republican Members of the U.S. House of Representatives, joint
letter......................................................... 246
Reynolds, Gerald A., Chairman, U.S. Commission on Civil Rights,
Assistant General Counsel, Kansas City Power & Light Company,
Kansas City, Missouri, statement............................... 252
Rosenberg, Steven L., County Attorney, County of Augusta, Verona,
Virginia, letter............................................... 265
Swain, Carol, Professor of Political Science and Professor of
Law, Vanderbilt University, Nashville, Tennessee, statement and
attachments.................................................... 267
Wall Street Journal, June 12, 2006, article...................... 307
Wright, Donald M., General Counsel, North Carolina State Board of
Elections, Durham, North Carolina, statement................... 309
REAUTHORIZING THE VOTING RIGHTS ACT'S TEMPORARY PROVISIONS: POLICY
PERSPECTIVES AND VIEWS FROM THE FIELD
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WEDNESDAY, JUNE 21, 2006
U.S. Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights, Committee on the Judiciary,
Washington, DC.
The hearing was convened, pursuant to notice, at 2:07 p.m.,
in room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback (Chairman of the Subcommittee), presiding.
Present: Senators Sessions, Cornyn, Coburn, Kennedy, and
Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. Good afternoon. I hope this hearing
will provide an opportunity for us to hear from people whose
work requires them to think about and to implement the
provisions of the Voting Rights Act on a regular basis. This is
an historic piece of legislation, a very important piece of
legislation.
It is always helpful here in the Senate to hear from the
people who are affected by the laws we pass. I hope each of you
will share your thoughts on the necessity and practicality of
reauthorizing certain key provisions of the Voting Rights Act
which are set to expire in August of 2007.
Virtually no right is more important than the right to
vote. It is, quite literally, the bedroom for the
representative democracy we enjoy today. We must enable
American citizens to fully participate in the political process
if we are truly to be a government of, by, and for the people.
Out of a strong desire to achieve this goal, a bipartisan
majority in Congress passed, and President Johnson signed, the
Voting Rights Act in 1965. The aim of the Act two generations
ago was to fulfill the democratic promise of the Civil War
amendments to the Constitution, one left unmet for a century
after that terrible war had ended.
The civil rights landscape has greatly improved in this
country since 1965, thanks in great part to the Voting Rights
Act. The Act has resulted in a tremendous increase in the
ability of minority citizens to fully and fairly participate in
our political system, both as voters and as candidates.
Over the years, Congress has made adjustments to the
legislation to identify and address current conditions, so it
is appropriate that we do our part in the 21st century to
assess and improve the Act.
The Voting Rights Act reauthorization bill currently
pending before the Senate, S. 2703, recognizes the achievements
of three other champions of the Civil Rights era: Fannie Lou
Hamer, Rosa Parks, and Coretta Scott King; legendary names,
legendary figures. I believe we have a responsibility to carry
on the work of these great Americans.
To that end, I have co-sponsored this important legislation
which reauthorizes three basic parts of the Act which are set
to expire next year. The first provision, which will expire in
2007, is Section 5.
This section provides that certain jurisdictions that had a
history of discriminatory voting practices must obtain pre-
clearance from the Department of Justice before making any
change in their voting procedures.
Also set to expire are Sections 203 and 4F4. Section 203
applies to jurisdictions in which a certain percentage of the
voting aged population is deemed to consist of minority
language speakers. It requires that such jurisdictions provide
all voting notices and materials in these minority languages,
as well as in English.
Finally, Sections 6 through 9, which authorizes the
Department of Justice to appoint examiners and observers to
monitor election activities in certain jurisdictions, are set
to expire.
The importance of the Voting Rights Act and the need for
Congress to exercise due diligence in reauthorizing it cannot
be under-estimated. We must proceed carefully to ensure the Act
is properly reauthorized so that it both prevents civil rights
violations and does not permanently punish jurisdictions that
have rectified past discriminatory practices.
As with prior extensions of the Voting Rights Act, Congress
must ensure that the Act's provisions are congruent and
proportionate to the identified harms, for this is the
constitutional standard the Act must meet when it is evaluated
by the Supreme Court.
I hope that our witnesses today will discuss the continuing
need for this legislation, identifying possible improvements,
and outline the steps we can take to ensure that every
American--every American--has the right to participate in the
voting process.
I am delighted my colleagues are joining us today, and I
turn the floor to Senator Kennedy.
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Senator Brownback,
for chairing these hearings today. Our thanks to the Chairman
of our Committee for continuing our committee's focus on the
reauthorization of the Voting Rights Act.
It was important to take time to have these series of
hearings to establish a strong record for reauthorizing this
Act, and we have done that. I hope we can vote this bill out of
Committee before the 4th of July recess.
During the hearings in recent weeks, arguments have been
made for and against reauthorization. It has been argued that
the trigger formula for Section 5 coverage is outdated, but the
evidence presented to the Committee demonstrates that
discrimination in voting persists in the jurisdictions covered
by the Act, Mississippi as an example.
The Justice Department has objected to 120 voting changes
in Mississippi since the Section 5 was last authorized in 1982.
This is roughly double the number of objections for the period
before 1982.
The Committee heard similar testimony about recent
discriminatory voting changes in Alabama, South Carolina, North
Carolina, and Texas.
University of North Carolina, Professor Nida Earles,
testified that the Department of Justice had made a total of
682 Section 5 objections in covered jurisdictions between 1982
and 2004, as compared to only 481 objections prior to 1982. In
short, covered jurisdictions continue to propose discriminatory
voting changes that can only be prevented through the pre-
clearance process.
Behind these statistics are the stories of the voters who
were able to participate in the voting process because the
Voting Rights Act protects their constitutional right to do so.
For example, in 2001, the town of Kilmichael, Mississippi
canceled its elections just 3 weeks before election day. The
Bush Justice Department objected to the cancellation, finding
that the town failed to establish that its actions were not
motivated by the discriminatory purpose from electing
candidates of their choice.
The town had recently become majority African-American, and
for the first time in its history several African-American
candidates had a good chance of winning elected office.
Section 5 prevented this discriminatory change from being
implemented, and as a result, three African-American candidates
were elected to the Board of Aldermen, and an African-American
was selected mayor of Kilmichael for the first time.
The fact the number of Section 5 objections is only a small
percentage of total submissions should not be surprising.
Jurisdictions take Section 5 into consideration when adopting
voting changes, and many day-to-day changes are non-
controversial. What should surprise and concern us is the fact
that there continue to be objections and voting changes like
the one in Kilmichael.
It has also been argued that the Section 5 coverage formula
is both over-and under-inclusive. The Act addresses that
problem by permitting jurisdictions where Federal oversight is
no longer warranted to bail out from coverage under Section 5.
We have a letter from one of the jurisdictions that has
taken advantage of the bail-out process, explaining that it did
not find that process to be onerous. So far, every jurisdiction
that has sought a bail-out has succeeded.
For jurisdictions that should be covered but are not, the
Act contains a mechanism by which a court may order a non-
covered jurisdiction found to have violated the Fourteenth and
Fifteenth Amendments to obtain Section 5 pre-clearance for its
voting changes. As a result, the Act's pre-clearance
requirement applies only to jurisdictions for which there is
need for such oversight.
Some question why Section 203 is needed if naturalized
citizens must learn English to become citizens. But as we
learned from the hearing on Section 203, this rhetoric is
misleading and unfair. Section 203 does not just help
naturalized citizens, it also helps U.S. citizens born in
Puerto Rico, on Native American reservations, and in Alaskan
villages. We have an obligation to help these Americans to cast
a meaningful and effective vote.
We also heard testimony that English-language programs are
heavily over-subscribed, forcing those who wish to improve
their English to remain on waiting lists for years. Mr.
Chairman, in my city of Boston it is two years now, and in
cities across the country there is an equal amount of time to
be able to participate.
It is rather tragic that the Appropriations Committee cut
back on the English-language training programs, this when we
have been trying to deal both with the immigration issues, as
well as the voting rights issue. It seems to me to have failed
to recognize important priorities.
These programs in the 203 are important because
understanding instructions and the election process require
more than a basic understanding of English. We went through a
series of referenda that were on a number of different kind of
ballots, and the complexity of some of these referenda, and we
want people to be able to cast with informed judgments on these
issues.
We cannot complain about naturalized citizens not learning
English when we strip English-language programs' funding. We
have conducted well-balanced hearings, different views have
been presented, and the record is strong for reauthorization.
It is time to move the bill forward.
I thank the Chairman.
Chairman Brownback. Thank you, Senator Kennedy.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. I will have to
leave in a few minutes because of the debate on the floor
concerning Iraq, but I really do want to thank my friend,
Senator Kennedy, for agreeing to serve as the Ranking Member
for this hearing. He is about the busiest member of the Senate,
so I do appreciate it.
Thanks, also, to Senator Brownback, the Chairman of this
subcommittee. Let me just say, very briefly, that those who
work so tirelessly to ensure the Volting Rights Act's enactment
and reauthorization should take pride in the great success of
the Voting Rights Act. We have seen the increased participation
in elections by minority voters and the enhanced ability of
minority voters to elect candidates of their choice.
But I think Ted Shaw put it best when he stated in his
testimony in an earlier hearing, ``The Voting Rights Act was
drafted to rid the country of racial discrimination, not simply
to reduce racial discrimination in voting to what some view as
a tolerable level.''
That is why there is a continued need for the pre-clearance
and minority language assistance provisions of the Act. I
believe the cases were made quite powerfully for Chairman
Specter's reauthorization legislation.
The Judiciary Committee has heard detailed testimony and
several reports have been entered into the record documenting
continued violations and attempts to violate the Voting Rights
Act in covered areas.
We know that Section 5 of the Act serves as a powerful
deterrent to prevent violations in areas of the country with a
history of systemic discrimination at the polls. We have heard
about the impact of Section 203 and how it has empowered many
voters with limited English proficiency to participate in our
democratic process.
I have been very impressed by the testimony of legal
experts, such as Professor Pam Carlin, who presented strong
arguments for the constitutionality of the Act. I do appreciate
the deliberate and thorough manner with which the Committee is
proceeding and I look forward to the committee's considering
the Chairman's reauthorization bill in the coming weeks.
Finally, let me thank the witnesses for being with us
today. In particular, I want to welcome Professor David Canon
from my alma mater, the University of Wisconsin, Madison.
Thank you, Mr. Chairman.
Chairman Brownback. Thank you, Senator Feingold.
Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Well, thanks, Senator Brownback, for
chairing this important hearing. This is the seventh in a
series of hearings in the U.S. Senate focused on
reauthorization of expiring provisions of the Voting Rights
Act.
I am encouraged that we continue to study this enormously
important and complex issue because I know we all will agree
that the Voting Rights Act has been one of the most significant
pieces of legislation passed in our Nation's history to ensure
full political participation of individuals who, in the past,
sadly, and which is a national scar, have been disenfranchised.
But it is imperative that we, in order to increase the
likelihood that the U.S. Supreme Court, when it reviews our
work, can ensure that we have done everything within our power
to make sure that we can meet the standards that the Supreme
Court has set out before, so that the legislation will
ultimately operate as Congress has intended.
We have a distinguished panel, obviously, and I will cutoff
my remarks here so we can hear from them. But let me just say,
in conclusion, I am delighted to see the Chairman of the U.S.
Commission on Civil Rights with us today, Jerry Reynolds. In
the past, the Commission has been an integral part of our
analysis, and I look forward to hearing from him, as well as
the other panel members.
Thank you very much.
Chairman Brownback. Thank you, Senator Cornyn.
I will introduce our panel now. First, is Debo Adegbile,
Associate Director of Litigation for the NAACP Legal Defense
and Education Fund. He works with direct litigation over
CNAACP's legal programs and is actively engaged in voting
rights litigation and advocacy.
Next, we will hear from Gerald Reynolds, Chairman of the
U.S. Civil Commission. Mr. Reynolds previously served as Deputy
Associate Attorney General, U.S. Department of Justice, and
Assistant Secretary of Education with the Office of Civil
Rights. Mr. Reynolds has also served as president for the
Center for New Black Leadership.
The third witness is Don Wright, General Counsel for the
North Carolina Board of Elections, a position he has held since
2000. He is active in the Election Center, the Nationwide
Association of Election Administrators, and has served as an
instructor for the center.
We will then have Jack Park, who is here from the Office of
the Attorney General in Montgomery, Alabama. Mr. Park graduated
from Yale Law School in 1980 and has spent the last 11 years
serving as an Assistant Attorney General and Deputy Attorney
General. His practice focused on voting rights and First
Amendment issues.
Our fifth witness is Professor David Canon, Professor of
Political Science, University of Wisconsin. He is the author of
Race, Redistricting and Representation: The Unintended
Consequences of Black Majority Districts, which earned him the
American Political Sciences Association's Richard F. Finno
prize for the best book published on legislative politics in
1999.
Our final witness is Professor Carol Swain. She is
Professor of Political Science and Law at Vanderbilt. Professor
Swain earned her Ph.D. from the University of North Carolina,
Chapel Hill, and received her MLS from Yale Law School.
She is the founder of the Veritas Institute, a nonprofit
organization dedicated to promoting justice and reconciliation
amongst people of different races, ethnicities, faith,
traditions, and nations.
It is an excellent panel. We will take all of your written
testimony into the record as if presented. You are welcome to
summarize. I am going to run the time clock at 6 minutes, if we
could, to give you an idea. If you could stay around that, that
would be great. Then we could get to questions and answers, if
that is workable with you. I would appreciate it if you could
run it that way.
Mr. Adegbile, please.
STATEMENT OF DEBO ADEGBILE, ASSOCIATE DIRECTOR OF LITIGATION,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NY
Mr. Adegbile. Thank you, Senator.
Today I will offer a perspective on the view from the
field, based largely on our experience in Louisiana. My written
testimony speaks more broadly about our experience in other
places, but I think that the view from Louisiana is
particularly apt at the time as the Senate considers renewal of
Section 5.
I also want to touch briefly upon the operation of Section
5 as a deterrent. You have heard a great deal about it, but I
think some recent contributions to the record illuminate some
of those pieces in ways that are important.
Finally, I will offer some policy perspectives and speak
briefly to some of the issues surrounding the coverage formula,
as this Committee has discussed those issues in detail.
The view from Louisiana is very instructive. I want to
focus on the experience with respect to the Louisiana House of
Representatives, the State legislative House, the lower House
of the State legislature, because in some sense it tells the
story of the Voting Rights Act.
We recently celebrated 40 years of the existence of the
Voting Rights Act, and it is fairly remarkable, but it is true
when I say that every single House redistricting plan for the
Louisiana House of Representatives has initially been met by an
objection from the Department of Justice.
It began in 1971, and that process has continued through
the last round of redistricting. Those objections have touched
upon wide parts of the State. They have not only been
concentrated in one part of the State, they have touched upon
multiple areas of dilution and retrogression. They have taken
the nature of evidence of intentional discrimination and
discriminatory effects.
The important thing to think about as we look at those
objections in each of the decades that followed the renewal of
the Voting Rights Act, is that but for Section 5, those voting
changes, those redistricting plans would have gone into effect
and would have served to minimize the opportunity of African-
Americans in a State with a long and well-documented history of
discrimination to participate in the political process.
They would have been left to try to find lawyers to bring
complex Section 2 cases, and all the while they would have
suffered from discrimination that the legislative redistricting
plans were either designed to implement, or had the effect of
implementing.
The experience in Louisiana is not exclusively limited to
the Louisiana House, but I think because you can trace the line
through those objections it is important.
I will say just a word about a case I litigated, which was
the last objection, which came in the form of a declaratory
judgment action right here in Washington, DC. That case was
remarkable, for a lot of reasons.
First, the State tried to eliminate in toto an opportunity
to elect district from Orleans Parish. There was no argument
that there was an offset. There was no argument that there was
influence being given to African-Americans. Political
motivations and other motivations, in our view, led the
legislature to eliminate a district altogether.
I litigated that case on behalf of LDF, on the same side of
the ``V'' as the Department of Justice, and the Section 5
declaratory judgment action resulted in Louisiana withdrawing
that discriminatory voting change and instead implementing a
plan that restored the district.
It is very significant to note that in that case there was
substantial evidence of intentional discrimination, not the
least of which was that the line drawers eliminated provisions
of the redistricting guidelines that said that the State needs
to follow the Voting Rights Act before they undertook to draft
the redistricting plan.
Moving for a moment to the deterrence piece, Professor
Louis Fraga of Stanford University added a piece of evidence
into the record that I think we need to focus on just briefly.
Much has been made of the number of objections that exist in
the record. In addition, we have talked a great deal about the
extent to which the trend line of objections is diminishing.
It is important to note that the Fraga study concludes that
``More Information'' requests--again, these are part of the
Section 5 pre-clearance process where the Department of
Justice, receiving a pre-clearance submission, does not have
adequate information to determine the effect or intent of the
submission, and they write a letter or they make a call seeking
additional information to illuminate the operation of the
contemplated voting change.
What Fraga found is that when you analyzed these ``More
Information'' requests, a number of things happen: occasionally
voting changes are withdrawn, at other times, they are
superseded, and at other times they are simply abandoned.
But the net result, and this is the significant finding, is
that the ``More Information'' letters result in 51 percent more
voting changes being stopped than when you simply count
objection letters alone.
I will not dwell on that report because it is in the
record, but I think it is important to note it so that we can
have a more full understanding of how Section 5 operates to
deter voting discrimination, as well as block it.
Finally, I want to touch just briefly on my view of one of
the important policy issues that is before this committee.
Senator Kennedy mentioned that some talk has been had about the
coverage formula and whether it needs modifying in some way. I
would submit that neither the law, nor practical
considerations, suggest that the coverage formula needs to
change.
As a legal matter, there is nothing in the Supreme Court
precedents that counsels change. The coverage formula has been
upheld numerous times by the Supreme Court. It is a formula
that has from the beginning, in some respects, been imperfect,
but been fair at targeting areas of the country with dramatic
evidence of discrimination.
The Supreme Court has repeatedly upheld that formula, most
recently in the case of Lopez v. Monterey County, which was
decided after the court's decision in Boerne, which seemed to
limit Congressional power to enact enforcement provisions.
From the practical side, it is important to note that the
statute, as it exists, has ways into coverage and ways out of
coverage. Section 3(c) allows courts, where they find evidence
of discrimination of a serious kind, to bring districts within
the ambit of coverage.
Similarly, there is a bail-out provision--and Senator
Kennedy spoke of a letter that was recently entered--that
talked a little bit about one jurisdiction's experience. Taken
together, neither practical considerations nor the law of the
Supreme Court require changes to the coverage formula at this
time.
I thank you for your time.
Chairman Brownback. Thank you very much.
[The prepared statement of Mr. Adegbile appears as a
submission for the record.]
Chairman Brownback. Mr. Reynolds, the Chairman of the U.S.
Civil Rights Commission.
STATEMENT OF GERALD A. REYNOLDS, CHAIRMAN, U.S. COMMISSION ON
CIVIL RIGHTS, ASSISTANT GENERAL COUNSEL, KANSAS CITY POWER &
LIGHT COMPANY, KANSAS CITY, MISSOURI
Mr. Reynolds. All right. At the outset, I would like to
discuss two housekeeping matters. It is possible that I may
have to leave early, and I would just like a dispensation if
that is necessary.
Also, I have revised the testimony that I have submitted. I
would like my revised testimony to be entered into the record.
Chairman Brownback. Without objection.
Mr. Reynolds. Thank you.
[The prepared statement of Mr. Reynolds appears as a
submission for the record.]
Mr. Reynolds. Mr. Chairman, members of the subcommittee, I
am Gerald Reynolds and I have served as the Chairman of the
U.S. Commission on Civil Rights since December of 2004.
The Commission is an independent, bipartisan agency
established by Congress in 1957 to, among other things,
investigate complaints alleging that citizens are being
deprived of their right to vote by reason of their race, color,
religion, sex, age, disability, national origin, or by reason
of fraudulent practice.
The Commission has been called the conscience of the Nation
on civil rights matters and was instrumental in providing the
evidence of pervasive discrimination in voting that led to the
passage of the Voting Rights Act in 1965.
I am pleased to appear before you today to discuss Section
5, one of the temporary provisions of the Act, in light of the
Commission's historical and its early development and
subsequent reauthorizations.
At this point, I would like to just discuss the fact that
in the past, before any major piece of legislation was passed,
there was a discussion as to the constitutionality of the
proposed legislation. I think that that was a practice that was
important. The reauthorization of Section 5 demonstrates why
that tradition is extremely important.
As the Supreme Court has stated in South Carolina v.
Katzenback, ``The constitutional propriety of the Voting Rights
Act of 1965 must be judged with reference to the historical
experience it reflects.''
In other words, the facts that were on the ground, the
facts that persisted when the Voting Rights Act was enacted,
are extremely important.
Now, the factual predicate at the time of its enactment as
one of persistent defiance on the part of the South of
constitutional commands and Federal legislation aimed at
securing the right to vote for blacks.
A 1961 Commission report identified 100 counties across the
Nation where black Americans were preventing from voting by
outright discrimination, by fear of physical violence, or by
economic reprisal, and pervasive and unlawful violence by
police officers and others used to repress voting rights.
Such invidious practices has driven down the average
registration rate for black citizens in the covered States down
to 29 percent. After the demise of the institution of slavery
with the end of the Civil War and the adoption of the
Thirteenth Amendment, the South imposed a racial caste system.
A central element of this racial caste system was the
disenfranchisement of blacks residing in the South. In defiance
of the Fifteenth Amendment, numerous Federal statutes and court
orders, and over the course of nearly 100 years, Southern
States refused to permit appreciable numbers of blacks to vote.
Each time the Federal Government issued an order or enacted
legislation to make the right to vote a reality for blacks,
Southern States would circumvent the law. This aspect of the
racial caste system, this open defiance of the Constitution,
persisted for almost 100 years.
This led Congress to conclude that the unsuccessful
remedies which had been prescribed in the past had to be
replaced by sterner and more elaborate measures in order to
satisfy the clear commands of the Fifteenth Amendment.
The pre-clearance requirement of Section 5 was included
among those sterner measures. The court conceded that Section 5
was ``an uncommon exercise of Congressional power.''
As Columbia Law Professor Samuel Icharoff notes, ``Section
5 is an extraordinary intervention that permits the Federal
Government to overcome their normal presumption of State
autonomy and respect for Federal.''
To put it another way, it created a system where the
Federal Government created a presumption of illegality. Any
change offered up by a covered State was presumed to be
unconstitutional.
That is a radical departure from what we did in the past,
but it is a radical departure that was necessary in 1965. But
the question before you is, is that remedy, that radical
remedy, justified in the 21st century?
Despite the extreme mature of the Federal remedy in this
context, the court has recognized that exceptional conditions
can justify legislative measures that would not be otherwise
appropriate. The question we face within addressing the
reauthorization of Section 5 is whether these exceptional
conditions exist today.
Beginning in October of 2005, the Commission amassed an
extensive record of testimony from noted experts in the field,
thousands of pages of documents from the Justice Department
provided to the Commission, and relevant court decisions.
We published our findings and recommendations on the issue
in both our statutory report entitled ``Voting Rights Act
Enforcement and Reauthorization,'' and in a briefing report
entitled ``Reauthorization of the Temporary Provisions of the
Voting Rights Act.'' I ask that these be included in the record
for this hearing.
Chairman Brownback. Without objection.
Mr. Reynolds. Based on this record, we found the following.
In those covered jurisdictions, we have seen black registration
for voting rights substantially increase over the last 40
years.
Data presented to the Commission suggests that Southern
blacks register and vote at rates comparable to, if not higher
than, the rest of the Nation. Research also indicates that
since 1984, black registered voters have closely tracked with
the voting-aged population in the original Section 5 States.
I would like to conclude by saying that what we have to ask
ourselves is, looking at the discrimination that exists today,
my point of view is that the notion that we will eventually
reach a point where there is no discrimination, that we will
never reach that point because of the human condition. For
whatever reason, we--some of us, at least--will find a reason
to make distinctions based on race and other invidious bases.
The bottom line is, if the Supreme Court were asked to
weigh in on the constitutionality of the Voting Rights Act
looking at today's facts, it is not clear to me that we have
those exceptional conditions that justified this extraordinary
remedy back in 1965.
Thank you.
Chairman Brownback. Thank you very much, Mr. Reynolds.
Our third witness is Don Wright, General Counsel for the
North Carolina Board of Elections.
Mr. Wright?
STATEMENT OF DONALD M. WRIGHT, GENERAL COUNSEL, NORTH CAROLINA
STATE BOARD OF ELECTIONS, DURHAM, NORTH CAROLINA
Mr. Wright. Thank you, Mr. Chairman and members of the
subcommittee. I appreciate the invitation to appear.
My presentation is going to be from the practical aspect,
from a general counsel who deals with Section 5 matters almost
on a daily basis. I will not give you a lot of fancy court
cases and theories. I am going to try to give you how it is to
deal with the Voting Rights Act on a regular basis.
I must give a disclaimer. I am general counsel for the
State Board of Elections. The State Board of Elections is a
bipartisan group of five individuals, appointed by the
Governor, in charge of all elections in North Carolina.
I do not state the opinion of my State Board here today.
This is my personal opinion, so whatever I state cannot be
presumed to be the opinion of the State Board of Elections.
When I was appointed general counsel of the State Board of
Elections in September of 2000, I was a little afraid of what I
would find when I started dealing with the Federal bureaucracy
with the U.S. Department of Justice.
It has been the most pleasant surprise. I found out they
were human, that they would actually return phone calls, they
responded to e-mails, and they were realistic in dealing with
situations.
I quickly developed a working relationship with Chris
Herron, who was assigned to North Carolina pre-clearance
matters, and worked with Chris until this last April, when he
was promoted and a new person was appointed, Yvonne Rivera. She
initiated a phone call to me to say, ``I am your new
representative at the Department of Justice. Anything you need,
any expedited help, just give me a call.'' We exchanged e-
mails.
It has been my experience from the beginning that, I have
never had any difficulty getting expedited pre-clearance or any
reasonable cooperation from the U.S. Department of Justice. I
think the Senate should be proud of the way that Department of
Justice, and the Voting Rights Section, has worked on pre-
clearance matters.
In my national meetings with other election administrators,
I never heard a complaint that on the day-to-day submissions--
which we have got to remember, that is the bulk of what they
deal with, not the headline redistricting cases, but the day-
to-day submissions--that Justice does not do an excellent job
in working with the States.
The responsibilities for submission of pre-clearance is set
out in North Carolina statutes. My responsibility as general
counsel for the State Board of Elections is to submit all
State-wide statutes and all policies and procedures of the
State Board of Elections, and we make rules and administrative
guidelines and send them to Department of Justice for pre-
clearance.
I do quite a bit of that, and as such I have developed, on
my computer, formatted letters. I will be honest with you, if
push comes to shove, I could probably knock out a pre-clearance
on a routine matter in a half an hour.
That is because of the Federal regulations, which set out
preclearance submission requirements. They are various
differences, of course, in submissions, but the heart and soul
of the submission, the format, is the same so I can easily get
it out.
As a matter of practice, I not only send the pre-clearance
submission by mail, but I fax the preclearance submission if it
needs to be expedited. For instance, if a polling place burned
down 2 days before the election, I am on the phone with
Department of Justice. Very often, I can get that pre-clearance
there on the phone, subject to them sending a letter, of
course, later on.
So I want you to understand, at least based on North
Carolina's experience--I have not heard different from other
States--that the way preclearance is administered by the
Department of Justice is very efficient. I have no reason to
believe that that would not continue, and I hope it will
continue.
So the submission of pre-clearances--and I am talking about
the routine clearances--has become routine, at least in North
Carolina.
Now, there are other types of pre-clearances, such as
annexations, dealing with municipalities. It may be a little
more extensive. The Department of Justice rules talk about
providing additional information for those pre-clearances. That
will take more than a half hour.
But keep in mind, the annexation pre-clearance submissions
and the submissions on redistricting are infrequent, much more
infrequent, than the routine submissions which the Department
of Justice gets, such as polling place changes, precinct
changes, and special election dates.
So is the current set-up a burden upon the average State or
jurisdiction in regards to submission? I would contend it is
not. In preparing for a presentation last year before a group
here in Washington, I said, well, I do not feel too comfortable
speaking for all county election directors. I said to myself, I
will just take an informal survey.
I talked to 12 county Directors of Elections in North
Carolina--we have got 40; Section 5 covered counties out of the
total of 100 North Carolina counties--and said to the county
director. ``Look, do you think Section 5 is much of a burden
upon you? Speak frankly with me.''
The vast majority--I mean, I had one negative comment--but
everybody else said, we like it. I said, why do you like it?
They said, well, it gives us protection. It gives us, for lack
of a better term, a seal of approval, that we have got Justice
saying what we are doing is right. They said, if anybody
complains to us, we tell them to call Washington. And they do,
I understand, call Washington.
Also, too, it prevents litigation. It stops it. Some of the
comments I received you might find interesting. These come from
county election directors, not from me: ``I would hate to
operate without it,'' referring to Section 5; ``pre-clearance
requirements are `routine' and do not occupy an exorbitant
amount of time, energy or resources;'' ``I can always fall back
on Section 5, that is protection''; and ``it allows us
opportunity to assure the public that minority rights are being
protected and that someone is independently validating these
decisions.'' These comments come from County Elections
Directors, not from an attorney.
Then, finally, a county stated, ``The history of ___
County, calls for our operations to be scrutinized, and rightly
so. The first black to serve on my Board of Elections was in
1991.''
So from, for lack of a better term, from the ``trenches'',
where the people deal on a day-to-day basis with pre-clearance,
at least in North Carolina, we do not consider Section 5
burden. We would encourage the renewal of Section 5.
Thank you.
Chairman Brownback. Thank you very much for the very
practical testimony.
[The prepared statement of Mr. Wright appears as a
submission for the record.]
Chairman Brownback. Mr. Park, from the Office of the
Attorney General in Alabama.
STATEMENT OF JOHN J. PARK, JR., ASSISTANT ATTORNEY GENERAL,
OFFICE OF THE ATTORNEY GENERAL, MONTGOMERY, ALABAMBA
Mr. Park. Mr. Chairman and members of the subcommittee,
thank you very much for the opportunity to speak this morning.
In addressing the committee, I draw on my experience, which
includes litigation about Section 5 issues, redistricting
matters, voting rights, and the preparation and consultation
regarding submissions that are made by the State of Alabama.
I have prepared submissions, I have litigated over their
adequacy. One of the things that I learned in that process, is
that Section 5 does not sleep. If we have successfully
submitted something for pre-clearance, it is subject to attack
down the road on the ground that we did not adequately identify
the change for the Department of Justice. We learned to our
dismay that pre-clearance that had been obtained, in one case,
in 1984, and again in 1998, was not adequate with respect to
litigation in 1999.
Our office handles State statutes and general applicability
that affect voting. We are the ones who submit it for pre-
clearance. The duty is that of an Assistant Attorney General,
and it is an extra duty.
We try to have local jurisdictions take care of their own
submissions. As Mr. Wright suggested, there is a template, but
I respectfully suggest that it would be difficult to make a
submission, even of a routine matter, in an hour.
I brought a couple of submissions that are short, just as
demonstrative exhibits. In one instance, we made a submission
that relates to two constitutional amendments at the county
level, and we just asked to put them on the ballot. The
substance of neither amendment related to voting, so all we
needed to do was ask U.S. DOJ to put these questions on the
ballot.
The second one is, likewise, small, about 25 pages, and it
is a redistricting submission for the town council of the town
of Lipscomb, outside Birmingham, Alabama. Actually, it is a
city. It is a city of some 3,000 people.
Ordinarily, an Assistant Attorney General for the State of
Alabama would not handle a matter like the pre-clearance of the
city council plan for a city. Lipscomb, however, was an orphan
jurisdiction with limited funds.
I went to Lipscomb, met with the town council, and
suggested what they ought to do. They came to Montgomery, they
looked at the computer, they prepared the plan, and I submitted
it for them.
In addition, we talked about the major submissions,
redistricting. In 2000, the State of Alabama successfully
enacted redistricting plans for its State Senate, State House
of Representatives, State Board of Education, and its
Congressional delegation and submitted each of those new plans
for pre-clearance, and obtained pre-clearance.
I brought with me the submissions that relate to the State
Senate plan. It is eight volumes of material. It includes
alternate plans. It includes testimony before committees that
went throughout the State before the process was under way to
take testimony.
It took a substantial amount of time to do this. I am the
one who wrote the letter. I worked with other folks to write
the letter. Of course, the first 90 percent of the letter took
50 percent of the time. But this submission was the bell cow,
it is the one that drove the train.
The House submission incorporated some of these materials,
otherwise the House submission would have been equally big, and
the Congressional submission incorporated these materials. So,
too, did the State Board of Education submission. These are
exceptional, but they are representative of the amount of work.
What I would like to suggest to the committee, is that
things have changed and the Committee should not view the Act
as a one-way ratchet. The States have changed their behavior.
It is measured by voter participation, it is measured by
the participation of African-Americans in government. Eight of
the 35 members of the Alabama Senate are African-American; 27
of the 105 members of the Alabama House of Representatives are
African-American.
There are African-American members of county commissions,
county Boards of Education, and town municipality governing
bodies throughout Alabama. There are African-Americans who have
served by appointment on the State Supreme Court, but they have
not been elected State-wide. There are African-American cabinet
members.
What I would suggest, is that the Committee find some way
to loosen the scrutiny of Section 5 without necessarily
abandoning the scope of it. The Committee should consider
removing de minimis changes from the coverage of the Act.
We have to ask to move polling places. We have to ask to
include constitutional amendments on regularly scheduled
elections. We have to schedule special elections.
Those, properly viewed, do not have much potential for
discrimination, and if somebody did not like what we did they
should sue us, but we should not be put in the position of
asking U.S. DOJ for permission to do this when they never
object.
Second, you should consider moving the date for determining
when a change occurs from 1964 to the present. If I have to
defend a lawsuit and I talk to State election officials, they
can tell me what happened as long as they have been in office,
and that is usually 10, 15 years. After that, I have to go to
the archives, and they will not necessarily provide the answer.
Third, with respect to bail-out, the Congress should make
certain that all covered entities, not just jurisdictions, be
entitled to bail out. The political parties of the State of
Alabama are both covered entities.
The Republican party has never had an objection. The
Democrats and Republicans both want African-American votes.
They do not have any interest in reducing their participation.
But they, because they are not political subdivisions, cannot
seek bail-out. I respectfully suggest that there is a
constitutional problem with that possibility.
Finally, I think that the period proposed of 25 years is
simply longer than necessary. Congress should revisit this in a
substantially shorter period. Thank you very much.
Chairman Brownback. Thank you, Mr. Park.
[The prepared statement of Mr. Park appears as a submission
for the record.]
Chairman Brownback. Senator Kennedy?
Senator Kennedy. Mr. Chairman, this is a very useful and
helpful panel. I necessarily have to absent myself, and I would
like to submit some written questions, if I could, and get
answers for the record.
Chairman Brownback. Absolutely.
Senator Kennedy. I thank all of the panelists for their
presence here today. Thank you.
Chairman Brownback. Yes. Thank you, Senator Kennedy. Thank
you for your participation and your long-time support for the
Voting Rights Act. You have been involved in it for some period
of time, you and your family. Thank you.
Professor David Canon?
STATEMENT OF DAVID CANON, PROFESSOR, DEPARTMENT OF POLITICAL
SCIENCE, UNIVERSITY OF WISCONSIN, MADISON, WISCONSIN
Mr. Canon. Thank you, Mr. Chairman and members of the
committee. Thank you for inviting me to testify this afternoon.
I will focus my comments today on something we have not
heard about yet today, which is the so-called Ashcroft Fix,
which would restore the standard for retrogression to what it
was before the Ashcroft v. Georgia decision.
But, first, let me say a few words about the necessity of
extending Section 5 of the Voting Rights Act. Much of this has
been covered by witnesses already, so I will not spend much
time on this.
But basically, the critics of Section 5 argue, in part,
that pre-clearance is no longer needed because of the success
that minority voters have had in electing candidates of their
choice in covered districts.
But if you look at the actual evidence, the data, there is
really not much empirical basis for optimism on the success
that minority voters have had in being elected in white-
majority districts.
The exceptions are exceptional because they are so rare. If
you look at all of the elections and House districts from 1965
up through 2004, over 8,000 House elections, only 49 of them
involved African-Americans elected in white-majority districts.
That is less than six-tenths of 1 percent.
If you look at covered districts, the evidence is similar.
In fact, you have a gap of over 100 years for most of the
covered States, from the end of reconstruction up through the
1980's and 1990's, when no African-Americans were elected from
covered States at all for that period of over 100 years.
So, clearly, the idea that we have had more success is
true, but, still, it almost exclusively happens in majority/
minority districts, which raises the importance then of
maintaining the pre-clearance provision of Section 5, that you
would not have had the creation of the black-majority districts
in 1992 that led to the election of large numbers of African-
Americans to the U.S. House without that pre-clearance
provision, without the Justice Department telling States that
they needed to create these black-majority districts. So that,
I think, is very strong testimony in favor of extending the
Section 5 pre-clearance provision.
Another thing that some critics have mentioned in terms of
the context of Section 5, is that because of the extremely low
rejection rate by the Department of Justice, this indicates
that, again, Section 5 is no longer needed.
Well, we have heard from witnesses today, and saw already
in the written testimony, that the deterrent effect of Section
5 itself prevents some things from happening that otherwise
would have.
So if you remove Section 5 pre-clearance, that deterrent
effect would no longer be there. You would have, I think, more
violations that would require people who are harmed by the
discriminatory practices to sue, and in many cases they would
not have the resources to do so, so the practices would go into
effect.
Finally, on the issue of the low rejection rate, the focus
on the low rejection rate ignores the extent to which many of
the objections do concern very important violations of the
Voting Rights Act. So while they are relatively small in
number, they are very important in terms of significance.
So with the remainder of my time, I want to focus on,
again, the Ashcroft Fix. Specifically, in the Senate bill that
you are considering, 2703, this would restore the standard for
retrogression to what was in place before Georgia v. Ashcroft.
The proposed legislation would clarify the purpose of
Section 5 of the Voting Rights Act, to protect the ability of
minority citizens to elect their preferred candidates of choice
rather than allowing the ability of elective districts to be
traded off against influence districts the way that the
Ashcroft decision would allow.
I support this clarification of Section 5. I see two main
reasons that the totality of circumstances test of Georgia v.
Ashcroft should be overturned.
First of all, the test is vague and unworkable. I think it
is just a practical nightmare in terms of how you would
actually go about measuring the relative power of African-
American voters to have their voice heard in the representative
process. It is a whole new ball game that the court is asking
us to engage in here, and I think it would be very difficult.
Second, allowing influence districts to be traded off for
ability to elect districts would erode the gains in
opportunities to elect candidates of choice that have been made
in Congress for the last 40 years.
Let me elaborate a little bit more on the first point.
Because time is running out, I will not talk so much about the
second point. But on the first point, in terms of the ``vague
and unworkable'' standard, having something to try to measure
representation in Congress that would require you to balance a
certain number of influence districts versus a certain ability
to elect districts requires us to do a tremendous amount of
work on actual legislative behavior: now, what are members of
Congress doing? What are State legislators doing for their
constituents, on behalf of their constituents?
So while some people propose fairly simple roll call
analysis that just looks at votes, that is actually not
adequate to look at the entire representative record. When you
look at the entire representative record, it takes, literally,
hundreds of hours to examine not only roll call votes, but also
proposed legislation. What are they doing in terms of
constituency service? How are the representatives of their
staffs in terms of minority representation, and so on?
So one attempt of this was my work in the remand of the
Georgia v. Ashcroft case, where I did make an effort to measure
influence districts the way the majority of the Supreme Court
dictated us to do.
So to do that, I went and looked at all 1,500 bills that
have been proposed in the Georgia State Senate, which was the
legislature in question, between 1999 and 2004 in terms of
their racial content and whether or not they were representing
racial interests.
What I found in that case, is African-American State
Senators had a far higher rate, about 40 percent, of their
proposed legislation that had some racial content, while
compared to about 3 percent for the white Republican Senators,
and ranged from 5 to 19 percent for the white Democrats.
The thing that was the strongest bit of evidence on this
question of responsiveness, was that the white State Senators,
both Democrats and Republicans alike, were not responsive to
increases in the percent of black voters in their districts.
In other words, if you had a white State Senator who was a
Democrat in a district that is 5 percent African-American, he
or she behaved no differently than in one with 40 percent
African-Americans. So, they were not being responsive to the
needs of African-American constituents in their districts.
I think if you would maintain the Georgia v. Ashcroft
decision it would be extremely harmful to minority interests,
so I strongly endorse the Ashcroft Fix, which would restore the
retrogression standard to the pre-Ashcroft standard, which was
focusing on the ability to elect. I think that is where that
focus should be.
Thank you very much.
Chairman Brownback. Thank you very much. An interesting
analysis, Professor Canon.
Professor Carol Swain of Vanderbilt University. We
appreciate very much your being here.
Professor Swain?
STATEMENT OF CAROL SWAIN, PROFESSOR OF POLITICAL SCIENCE AND
PROFESSOR OF LAW, VANDERBILT UNIVERSITY, NASHVILLE, TENNESSEE
Ms. Swain. Thank you, Mr. Chairman and members of the
subcommittee. I would like to begin by clarifying why I believe
I was invited to speak, and that is because I am the author of
a book entitled, Black Faces, Black Interests: The
Representation of African-Americans in Congress, which was
published in 1993 by Harvard University Press, reprinted in
1995 with an expanded edition, and reprinted again in 2006 by
University Press of America.
Black Faces, Black Interests book won three national
prizes, including the prize for best book published in the
United States, the Woodrow Wilson Prize, which is the highest
prize that a political scientist can win. It also won the D.B.
Hardeman Prize for the best book on Congress for a biennial
period, and it was co-winner of the V.O. Key Prize.
Mr. Canon and some of the other witnesses, have published
works that are derivative. I would like to establish that I am
not a lawyer, but I have written a book that many people
consider important.
In Black Faces, Black Interests, I argue that political
party is more important than the race of the representative. As
long as African-Americans hold the views that they do, they are
best represented by Democrats. Consequently, I have questioned
the drawing of the majority-black districts and pointed out
that such a strategy was likely to add to the growth of the
Republican party, and that black interests were best served
when there are more people in office to support a particular
agenda.
I made a distinction between descriptive representative,
more black faces in office, and substantive representation,
more people who vote for your agenda.
I believe that substantive representation is far more
important than descriptive representation and that voters are
best served by having more people in office, regardless of
their race, that can support the things that the care about.
I come here strongly in favor of the reauthorization of
Section 5. I believe that we should be concerned about voter
discrimination whenever and wherever it occurs, and there is
plenty of evidence that it occurs nationwide. I would like to
see Section 5 reauthorized and strengthened so that there would
be nationwide protection beyond what is offered with Section 2.
I would also like to see the bail-out process for covered
jurisdictions streamlined so that those jurisdictions with
established records of compliance, can more easily bail out. We
could perhaps include some type of probationary period so that
if jurisdictions are found in violation again they would
immediately come under coverage again. Overall, I think we
should reward good behavior and punish bad behavior. There are
many places outside the covered jurisdictions where
discrimination occurs.
Moreover, unlike Professor Canon, I believe that Georgia v.
Ashcroft was a good decision. I believe it was a good decision
because it was one of those rare moments where politicians
moved beyond their own narrow self-interests.
Every major black elected Democrat in Georgia, except one,
argued in favor of unpacking the majority-black districts.
These elected officials acknowledged that the world has changed
significantly since 1965, and that race is no longer a major
barrier to the election of black Democrats in the south.
These black Democrats supported the enactment of influence
districts and the unpacking of majority black ones. The Voting
Rights Act was never intended to guarantee the election of a
politician of a particular race or ethnicity.
Instead, the VRA was supposed to ensure the representation
of the interests of the people, and those interests can be
represented by politicians of any race. Many of the issues that
politicians frame as being about race, even something as
salient as felony disenfranchisement, are not really about
race.
If anything, it is more about social class and educational
levels. This applies to the death penalty, the people on Death
Row. You do not find rich people on death row. You find people
who are poor whites, poor blacks, and poor Hispanics.
A lot of the issues that Congress frame and the nation as
being about race, are not about race, they are about social
class. We can have better legislation that protects the
interests of all voters if we stop framing everything as being
about race.
Yes, the Voting Rights Act has to be reauthorized, and it
has to be strengthened. I believe that 25 years is a long time.
Many of us will not be around in 25 years. The nation is
changing dramatically in its demographics: there are growing
numbers of Hispanic voters. Hispanics are the fastest-growing
group; the Asians are also growing. Nationwide, all voters need
their voting rights protected.
By 2050, it has been estimated that whites may be a
minority in this Nation. It is crucial for us to have national
comprehensive voting rights legislation. Yes, Section 5 should
be reauthorized, it should be strengthened. And Georgia v.
Aschcroft should be allowed to stand. Thank you.
Chairman Brownback. Thank you very much.
[The prepared statement of Ms. Swain appears as a
submission for the record.]
Chairman Brownback. Well, I expect a spirited questioning
session here. We have got quite a few opinions that have been
put forward, and that is useful as we look at this piece of
legislation.
Let us run 5 minutes on questions. If we need another
round, we will do that.
Mr. Reynolds, I am a little uncertain on your testimony.
You were saying that the situation to extend Section 5 is not
there today. Now, am I understanding you to say by that then we
do not need Section 5 today, or you are supporting changes to
Section 5? I just want to get that clarified.
Mr. Reynolds. All right. In 1950, a black man goes to the
Registrar's office to try to register.
Chairman Brownback. My time is real short.
Mr. Reynolds. I am sorry. Senator Brownback. Do we have the
situation today to do this?
Mr. Reynolds. The facts on the ground today are quite
different from the facts that existed when the Voting Rights
Act was passed. I cannot, with a straight face, conclude that
blacks today live under the same repression that existed in the
South.
As I started out in my testimony, we are talking about a
racial caste system that was put into place across the South.
That racial caste system----
Chairman Brownback. Nobody would dispute that. But do we
extend Section 5 or not?
Mr. Reynolds. I am not speaking for the Commission. I would
say no. The only way that the Voting Rights Act is
constitutional, in my view, is if we conclude that the factual
predicate that justified it in the first place is still there.
I do not think that that is the case.
However, this is about politics, and politics is about
compromise. There are lots of things that we can do. If there
is a substantial number of folks who want to reauthorize the
Voting Rights Act, there are many fixes; Professor Swain
mentioned one.
Similarly situated citizens should be treated the same, so
if you are a black living in a jurisdiction that is not
covered, it seems to me that that black, or any American,
should have the same constitutional and statutory protections
as someone living in a covered jurisdiction.
Chairman Brownback. I think that is an excellent point.
I want to move to, what about the 25-year extension? Do you
think it should be extended for 25 years? Others are suggesting
a 5-year extension.
Mr. Reynolds. I think that a 5-year extension, or a 10-year
extension would be preferable. I also believe that the trigger
needs to be updated. Currently, the trigger is key to the 1964
elections. I believe that is bordering on being irrational----
Chairman Brownback. Yes.
Mr. Reynolds. [Continuing]. To have a trigger that is
grounded at a particular point in time without taking into
account the sea change that has occurred in American society.
Chairman Brownback. All right.
Now, I want to quickly go on to the minority/majority seats
orientation. Ms. Swain, if I am understanding you correctly,
you do not think that is a good idea, presently. Or correct me.
Ms. Swain. I will tell you what I believe. I believe that
race is no longer a major barrier to the election of black
elected officials, especially in traditionally Democratic
districts. One reason why we do not have more black elected
officials in majority-white districts is that they are
discouraged from running; it is very difficult to raise funds.
If parties wanted to increase the number of minorities
elected in majority-white districts, they would cough up more
money for campaigns, because it is very expensive to run in
such a district.
Chairman Brownback. It is. But I want to get to a fine
point on this. So you do not like majority/minority designation
districts. Is that correct? Do you disagree with that?
Ms. Swain. No, it is not that.
Chairman Brownback. Then you do support that?
Ms. Swain. No, I am not saying, no, that I do not dislike
them. I am saying that it is not the only way to elect blacks
to Congress.
Chairman Brownback. I understand that.
Ms. Swain. There is too much focus on it.
Chairman Brownback. I am just trying to get to a point here
about whether you support this design or not.
Ms. Swain. I do not support them as being esential to the
election of minority politicians. I think influence and
coalitional districts are more important for the Nation as a
whole, and more practical.
Chairman Brownback. All right.
Now, quickly, because I am short on time, Professor Canon,
you disagree. You think you need majority/minority seats, and
that the proof is that you do not elect minorities without
them. Is that correct?
Mr. Canon. Correct, with one important change in
terminology. Rather than ``majority/minority,'' ``ability to
elect.'' Ability to elect is the legal thing to focus on, and
that truly is the practical thing to focus on as well.
If you have sufficient cross-over voting and sufficiently
low levels of racially polarized voting, it is quite possible
to elect African-Americans in districts that may only be 40, 45
percent African-American. So that is what the flexibility of
the ``ability to elect'' standard allows you to do, is that it
is a case-by-case kind of analysis.
Chairman Brownback. All right.
Mr. Canon. So majority/minority is essential most of the
time, but ability to elect is the key thing.
Chairman Brownback. So you support majority/minority, but
you want to rephrase how that is defined then so that it can be
easier to elect minorities?
Mr. Canon. No. I was just saying, to urge the focus on the
actual language of S. 2703, which is the ability to elect. In
the standard to restore the retrogression standard of what it
would be before Ashcroft, the actual language of the proposed
legislation is on ability to elect, not on majority/minority.
So I was just saying that that should be the legal focus here.
Chairman Brownback. All right.
Mr. Canon. In practical terms, it often does take a
majority/minority district, but does not require it.
Chairman Brownback. All right. Thank you.
Senator Cornyn?
Senator Cornyn. Thank you very much.
Well, I am glad we are having this discussion.
Unfortunately, I think we do not have enough discussions about
race, its role in our society, and how we can reconcile
ourselves and deal with some of the wounds of the past. So, I
think this has been very, very helpful.
Just to make sure we understand, and I think this is what,
Chairman Reynolds, you were alluding to, but I want to make
sure everybody here understands and knows who may be reading
this transcript, the Voting Rights Act is not going to expire.
Mr. Reynolds. That is correct.
Senator Cornyn. The Voting Rights Act, which codifies the
Fifteenth Amendment to the U.S. Constitution, which guarantees
no discrimination in voting rights based on race, is a
permanent part of our law.
The only issue that we are talking about with regard to
reauthorization has to do with Section 5, and we will describe
that in a minute, and Section 203, which has to do with
multilingual ballots.
Just so people understand, only nine States and some other
smaller political subdivisions are covered by Section 5. As Mr.
Wright, Mr. Park, and others indicated, that obligates those
covered States to seek pre-clearance from the Department of
Justice on any changes in their voting practices or procedures
before they can go into effect.
For the rest of the country, all the rest of the United
States, they do not have to pre-clear, but they are subject to
Section 2 of the Voting Rights Act. They can be sued for
discriminatory voting practices. That remains available whether
Section 5 is reauthorized or not.
A finer point. The reason why it is so important that we
get this right, is because the U.S. Supreme Court has warned us
that in passing reauthorizing Section 5, there must be
``congruence and proportionality to the injury sought to be
prevented or remedied.''
In other words, this is an extraordinary use of Federal
authority and imposition upon the sovereign States. I know we
do not think about this so much today, but the States are
actually sovereign entities which we were bringing in as part
of the Federal Government back when this Nation was created.
The Supreme Court has said, under the Fifteenth Amendment
of the Constitution, that the Federal Government's power is not
plenary. It just cannot do anything it wants, anywhere it wants
with regard to the States. There has got to be a reason for it.
The remedy has to be proportional and congruent to the injury
sought to be prevented from remedy.
That leads me to this question. There have been a lot of
changes, as has been noted in this country, since the passage
of the Voting Rights Act. We can all stipulate, that is a good
thing. Nobody wants to go back to the way things were before.
In my State, we had about 57 percent of African-American
voter registration when the Voting Rights Act was passed, and
in all those jurisdictions covered it was about 40 percent.
But thank goodness, today, because of changes in America,
changes in the law, and because of the success of the Voting
Rights Act, we now see that African-American voting
registration in covered jurisdictions, that is the nine that
have to pre-clear under Section 5, exceed that of the entire
Nation.
In other words, if my chart here is correct, it shows about
64 percent African-American voting registration based on the
2004 Presidential race.
In covered jurisdictions, those that had had a past history
of discrimination and which are required to pre-clear, they
actually have better African-American voter registration than
they have had in the rest of the country.
So my question, Chairman Reynolds, for you is, part of this
formula for the application of Section 5 to justify this
intrusive action by the Federal Government, albeit remedial and
justified in the past based on historical discrimination, what
possible justification could there be for triggering Section 5
based on 1964 election returns, 1968 election returns, 1972
election returns, when America is a changed Nation and we no
longer have the same sort of problems--to the same extent, I
should say. We still have the same problems, no question about
it--that we had back in 1964, 1968 or 1972? Should we tie it to
2000-2004 elections?
Mr. Reynolds. Well, I think that, at a minimum, the trigger
should be updated. There has been a sea change in the culture.
There has been a sea change in race relations. Again, it is
difficult.
Having conversations with my children, it is difficult for
them to understand that their grandparents, who lived in the
South, lived under a racial caste system. This is truly history
for them. They will not have to deal with the levels of
oppression that existed in the South in 1965.
So is it a good idea to update this trigger? The answer is
yes. I think that, as a matter of public policy, we should take
a look to determine if changed circumstances warrants a new
trigger, and I believe that the answer is yes.
And also, to ensure that the statute is not successfully
challenged, I think that Congress needs to look at the Act on a
regular basis and to tailor the remedy to the harm.
Senator Cornyn. I am sorry to interject there, because I
know the clock is ticking away. But just to put the final point
on it. If we do not get it right, the U.S. Supreme Court is
likely to strike down that as an unjustified extension of
Federal power over the States. Is that not correct? That was
what Burney tells us.
Chairman Brownback. A short answer here, please.
Mr. Reynolds. The short answer is, I am not sure what the
Supreme Court is doing, but to ensure that the Supreme Court
does not have to face this question, I say that we need to
tailor the trigger, we need to update the statute, we need to
recognize the improvements that have occurred in society.
Chairman Brownback. Thank you. I must apologize the panel,
I have got another engagement. I am going to ask Senator Cornyn
if he would finish chairing the hearing. Can you do that?
Senator Cornyn. Mr. Chairman, I was just gathering my
papers because I have another conflict, too. We can turn it
over to Senator Sessions.
Chairman Brownback. We will turn the hearing over, if that
is all right, to Senator Sessions. You have got the rest of the
time clock to ask questions.
Senator Sessions. All right.
Chairman Brownback. I do want to say, as I exit, I think
this has been an excellent panel, a lot of thoughtful comments.
These are tough things to discuss a lot of times because this
has been a very important piece of legislation, the Voting
Rights Act. It almost becomes a sacred document, so it is tough
to talk about it, but it is important to talk about it, and
what does it mean in the context of 2006.
So I am hopeful that we can get the extension on this
passed. It is a serious piece of legislation. We need it, but I
think we need to get it right so it does withstand
constitutional challenge, and it continues to improve our
country.
This has been one of those foundational pieces of
legislation that you look at and you say, this really changed
things for the better, it made a lot of things much better. I
just want to make sure we continue that in the great tradition
of what this legislation has meant.
Senator Sessions, thank you very much.
Senator Sessions. Thank you, Mr. Chairman. I am due to be
defending America on the floor pretty soon on the defense bill,
so I do not have a lot of time either; I wish that I did.
Let me just say, as a Senator from Alabama, we do not
dispute, and in fact fully recognize, the racial discrimination
that was, by law, in existence in Alabama in the 1960's that
deprived people of the right to vote systematically and in
large numbers in certain areas, virtually totally eliminating
people because of the color of their skin of the right to vote.
It was wrong and it could not be justified. The Voting
Rights Act was a powerful piece of legislation that I believe
has, in fact, done more for race relations than most anything
else that has been passed.
People say that frequently, and I think that is legitimate
because it has empowered people to be a part of the electoral
process when they were denied the right to be part of the
electoral process, a wrong that is still in the memory of many
African-American citizens throughout the South. This was in
their lifetimes, in our lifetimes.
So it is not a matter we ought to treat lightly, that we
ought to be in any way flippant about. I would just say that I
do not sense any commitment on this Congress' part to do
anything other than reauthorize this Act, for a whole lot of
reasons.
I get the impression from my State, that people who
understand how this Act works are willing to continue to do
many of the requirements that the Department of Justice and the
Act puts on them, even though, in many instances, it is just
really foolish. It does not really do anything other than go
through a paperwork process.
But they are prepared to do that. They want to affirm that
the South, these nine States, have changed, that we are in a
new world, and they are not afraid to have the Department of
Justice or anybody else examine what they do. In fact, they are
willing to go through that. All right.
But I think that it is appropriate for us to analyze some
of the requirements of the Act and to ask ourselves whether or
not we can make it work better, whether or not--I believe it
was Professor Swain who said--we recognize some areas where
problems no longer exist, and create a system that is more
workable and focuses on the more legitimate questions that come
up.
Serious questions that arise, like redistricting, have big
impacts. You have got to be really careful about that. I do not
sense any suggestion that we want the Voting Rights Act to be
amended so as to eliminate that, but there are some areas where
I think it could be improved.
Professor Swain, you indicated that you thought the
Democratic party may reflect the interests of the African-
American community. I do not know if you know, I quoted from
you this morning on the floor of the U.S. Senate. Did you know
that?
Ms. Swain. I am honored. No, I did not know that.
Senator Sessions. I did not know you would be on this
panel. I did so, because I agreed with you on your opinion on
the immigration bill, that low-skilled or African-American
workers may be hurt more by this bill than any other groups of
people.
Ms. Swain. Working class whites and legal immigrants are
hurt also.
Senator Sessions. Yes.
Ms. Swain. It is a bill that affects all Americans.
Senator Sessions. Well, I agree. [Laughter.] And you and I
agree. Sixty percent of the Republicans in the Senate agreed
with you and me, and only four Democrats did.
Ms. Swain. That is because Southerners have good common
sense. [Laughter.]
Senator Sessions. Well, the point is, I guess, nothing is
certain, as in politics and life.
Jack Park, it is great to see you. You are a terrific
lawyer and represented the State of Alabama well. You mentioned
this baseline date. You are not talking about changing the
coverage trigger date. You are talking about the baseline, that
that sometimes leads to extraordinary difficulties for a State
in handling the Voting Rights Act.
Could you share with us how those problems exist and
whether or not we could improve that language to make it more
rational without diminishing the protections that the Act
provides?
Mr. Park. A change is something measured by a reference for
the State of Alabama to the standard practice or procedure that
was in place on November 1, 1964.
The election officials who were working at that time are no
longer around, so we need to rely on election officials to tell
us what the practices are.
Senator Sessions. How does this come up? Why do you have to
know what the practices were in 1964?
Mr. Park. If we are applying a statute that was in effect
in 1964, the statute does not cover the waterfront. So election
officials figure out how they are going to work various ways to
comply with the statute, and those evolve into practices.
They are never put into writing, but they are always done,
they are always done the same way. The election officials
always try to make them as fair as possible. If we change an
unwritten practice, that is a change.
Senator Sessions. And that has to be pre-cleared by the
Department of Justice.
Mr. Park. That has to be pre-cleared.
In litigation in which I was involved, the Secretary of
State's Office insisted that they had been following party
directions to take disqualified candidates off for years, but
they could talk only about 15 years back.
So we went to the archives and we found some examples where
candidates had been taken off party primary ballots before
November 1, 1964, but a State court judge said that was not
enough, it is not the right kind of removal.
So the archival records, as good as they are, are not
enough to tell us exactly what we need to know. We need to be
able to draw on the knowledge base of our current election
officials. That is why the baseline date should be moved
forward.
Senator Sessions. In other words, it is all right to
determine from the current officials what the standards, or
maybe unwritten practices are, but it is weird and unnecessary
to figure out what it was 35 years ago. It is less relevant and
very difficult to prove.
Mr. Park. Yes, sir. Almost impossible to prove.
Senator Sessions. Would any of you others express concerns
about that? Yes?
Mr. Adegbile. Senator Sessions, with respect to the
coverage formula, I think it is important to make the point
that while registration and turn-out was, and has been, an
integral aspect, the registration and turn-out was not the
whole story.
It was a legislative proxy that Congress arrived at for
determining certain jurisdictions that had entrenched histories
of discrimination. In subsequent renewals this body has
recognized, by examining the record in the coverage
jurisdictions, that the problem or the evil that Congress
sought to remediate, that being discrimination in voting,
persisted.
So I think that it is not fair for us to put too much focus
on the coverage formula and not look at it in the context of
what subsequent hearings before this Congress have recognized,
that the story is multifaceted and complex.
To be sure, the triggering formula is important; it is
integral and it gives us the coverage that we see on the map
today. But as I testified earlier, it is not static, in that
there are ways into coverage and ways outside of coverage, and
both have been utilized in the years since the last renewal.
Senator Sessions. Professor Swain, would you like to
comment?
Ms. Swain. Yes. I think that if we were to have a uniform
national voting rights law, that we would probably have to
change the trigger factor to take into consideration the
histories of the Nation as a whole.
I would like to point out that African-Americans are no
longer the largest minority group in America, that we are also
dealing with growing numbers of Hispanics, Asians. I believe
the Voting Rights Act has to be framed in a way that it
protects all voters, wherever they live, regardless of their
race.
Senator Sessions. Let me ask you a question. You are from
Nashville, at Vanderbilt University.
Ms. Swain. Yes.
Senator Sessions. I would ask you to handicap the
possibility of racial discrimination at Boston, New York,
Chicago, Philadelphia, and Nashville.
Ms. Swain. I know that racial discrimination happens all
over the country, and it is global. It is not confined to a
particular region of the country or world. I have lived outside
the South. I was a tenured professor at Princeton University. I
have traveled quite a bit.
I do not believe that the rest of the Nation can point a
finger at the South, a legitimate finger, as discrimination
occurs in many places. A lot of it may be because of the self-
interests of politicians or for partisan gain, but it is not
confined to a particular region of the Nation.
Mr. Reynolds. Senator Sessions?
Senator Sessions. Yes?
Mr. Reynolds. If you do not mind, I would like to address
that issue also.
Senator Sessions. Please.
Mr. Reynolds. I think that both you and Professor Swain
raise important issues. Again, we should have uniform rules
that apply to all citizens. Certain citizens should not have
enhanced protections merely because of our history.
The South was guilty of this pervasive disenfranchisement,
but the North did not have clean hands either. They had a
different system. They did not have, for the most part,
literacy tests and poll taxes, but the North was not free from
discriminatory contact.
So if we are going to have this, if we assume that we can
get over the constitutional issues, then I think that we need
to have a conversation that starts off with the premise that we
should have a rule that applies to all citizens. So, the
trigger would have to be revisited under those circumstances.
Senator Sessions. Chairman Reynolds, I would just ask you
to followup a little bit more with what you just said. Is it
your feeling that there is something inherently unwise, maybe
even unconstitutional, about a focus on a certain area of the
country when the evidence is such that it may not justify them
being treated differently any longer? You are Chairman of the
Civil Rights Commission and you think about these issues, and I
would appreciate your thoughts on that question.
Mr. Reynolds. That is the heart of the matter. In 1965,
this extraordinary remedy was justified by the conduct of the
South. Every Federal attempt to provide blacks with the right
to vote was thwarted by the South.
Under those circumstances, this extraordinary remedy was
justified. But we are now into the 21st century. There has been
a sea change in racial attitudes in the country. There are many
blacks who have been elected to office, both at the State and
Federal levels. The country has changed.
The harm that the court was addressing was pervasive,
widespread discriminatory conduct aimed at preventing blacks to
vote. That is the harm. Now, the issue is, is the extent of
that harm still there? Do we have the same level of
discriminatory conduct?
That is not to suggest that there is an acceptable level of
discriminatory conduct, but I am saying that, in order to pass
constitutional muster, this institution will have to revisit
and reexamine the remedy. We have to look at the harm that is
currently in place and we have to look at the remedy to ensure
that there is proportionality. So, that is my two cents on the
issue.
Senator Sessions. Thank you.
Mr. Adegbile. Senator, if I could respond, just very
briefly, to that point.
Senator Sessions. Briefly.
Mr. Adegbile. I think there is an inherent tension between
the court's decisions under Boerne and the requirement for
congruence and proportionality, with the conception that we
should extend Section 5 nationwide.
For example, there are parts of the country where there are
no minority citizens that need protection. The Boerne decisions
have recognized that limitations as to time and as to geography
are important considerations in weighing the constitutionality
of statutes.
So I am a little puzzled why one would suggest that we save
this statute by extending it to places where, clearly, it will
tend to undermine, rather than support, the constitutionality
of the statute. I think that is a very substantial
consideration for this distinguished body.
Senator Sessions. Well, thank you very much. Those are very
important issues. It is a matter that this Congress, I am
confident, will act on and we will move forward.
Our record will remain open for 7 days, 1 week, for written
questions. I would like to ask each of you, if you receive
questions from the members, to respond as promptly as you can.
Thank you all for your testimony today on this very
important issue. Thank you very much.
[Whereupon, at 3:30 p.m. the hearing was adjourned.]
[Questions and answers and submissions for the record
follow.]
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