[Senate Hearing 109-823]
[From the U.S. Government Publishing Office]
S. Hrg. 109-823
RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE
OPTIONS AFTER LULAC V. PERRY
=======================================================================
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
----------
JULY 13, 2006
----------
Serial No. J-109-98
----------
Printed for the use of the Committee on the Judiciary
RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE
OPTIONS AFTER LULAC V. PERRY
S. Hrg. 109-823
RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE
OPTIONS AFTER LULAC V. PERRY
=======================================================================
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
__________
JULY 13, 2006
__________
Serial No. J-109-98
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
33-836 WASHINGTON : 2007
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
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
------
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
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 2
prepared statement........................................... 211
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 15
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 272
WITNESSES
Avila, Joaquin G., Assistant Professor of Law, Seattle University
School of Law, Seattle, Washington............................. 11
Carvin, Michael A., Partner, Jones Day, Washington, D.C.......... 9
Clegg, Roger, President and General Counsel, Center for Equal
Opportunity, Sterling, Virginia................................ 4
Ifill, Sherrilyn A., Associate Professor of Law, University of
Maryland School of Law, Baltimore, Maryland.................... 6
Perales, Nina, Southwest Regional Counsel, Mexican American Legal
Defense and Educational Fund, San Antonio, Texas............... 8
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and
Vice-Chair, U.S. Commission on Civil Rights, Lexington,
Massachusetts.................................................. 13
QUESTIONS AND ANSWERS
Responses of Joaquin Avila to questions submitted by Senator
Cornyn......................................................... 27
Responses of Michael Carvin to questions submitted by Senator
Cornyn......................................................... 45
Response of Roger Clegg to questions submitted by Senator Cornyn. 49
Responses of Sherrilyn Ifill to questions submitted by Senator
Cornyn......................................................... 50
Response of Nina Perales to questions submitted by Senator Cornyn 61
Responses of Abigail Thernstrom to questions submitted by Senator
Cornyn......................................................... 62
SUBMISSIONS FOR THE RECORD
American Federation of Labor and Congress of Industrial
Organizations, William Samuel, Director, Department of
Legislation, Washington, D.C., letter.......................... 72
American Jewish Committee, Richard T. Foltin, Legislative
Director and Counsel, Washington, D.C., letter................. 74
Asian American Justice Center, Karen K. Narasaki, President and
Executive Director, Washington, D.C., letter and statement..... 75
Avila, Joaquin G., Assistant Professor of Law, Seattle University
School of Law, Seattle, Washington, statement and attachment... 103
Carvin, Michael A., Partner, Jones Day, Washington, D.C.,
statement...................................................... 135
Clegg, Roger, President and General Counsel, Center for Equal
Opportunity, Sterling, Virginia, statement..................... 144
Collet, Christian, University of California, Journal of Politics,
Irvine, California, manuscript................................. 175
Editorials and articles concerning renewing the temporary
provisions of the Voting Rights Act, list...................... 218
Friends Committee on National Legislation, Ruth Flower, Senior
Legislative Secretary, Washington, D.C., letter................ 224
Harris, Fredrick C., Associate Professor of Political Science and
Director, Center for the Study of African-American Politics,
University of Rochester, Rochester, New York, letter........... 226
Ifill, Sherrilyn A., Associate Professor of Law, University of
Maryland School of Law, Baltimore, Maryland, statement......... 228
Ivory, Rev. Elenora Giddings, Director, Washington Office,
Presbyterian Church (USA), Washington, D.C., letter............ 240
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....................................... 242
Lawyers' Committee for Civil Rights Under Law, Jon Greenbaum,
Director of the Voting Rights Project, Washington, D.C.,
statement...................................................... 250
Leadership Conference on Civil Rights, Wade Henderson, Executive
Director, and Nancy Zirkin, Deputy Director, Washington, D.C.,
letter......................................................... 269
League of Women Voters of the United States, Kay J. Maxwell,
President, letter.............................................. 271
Mexican American Legal Defense and Educational Fund, John
Trasvina, Interim President and General Counsel, Los Angeles,
California, letter............................................. 275
National Association of Latino Elected Officials, Washington,
D.C.:
Arturo Vargas, Executive Director, May 9, 2006, letter....... 277
James Thomas Tucker, July 2006, survey....................... 279
National Black Law Journal, Glenn D. Magpantay and Nancy W. Yu,
Vol. 19, Number 1, 2006, article............................... 312
National Congress of American Indians, Joe A. Garcia, President,
Washington, D.C., letter and resolution........................ 344
National Council of Asian Pacific Americans, Washington, D.C.,
letter......................................................... 349
National Council of La Raza, Janet Murguia, President and CEO,
Washington, D.C., letter....................................... 351
Oliver, Dana M., General Registrar, Salem, Virginia, letter...... 353
Pamintuan, Rudy, Chair, President's Advisory Commission on Asian
Americans and Pacific Islanders, Washington, D.C., letter...... 356
Perales, Nina, Southwest Regional Counsel, Mexican American Legal
Defense and Educational Fund, Los Angeles, California,
statement...................................................... 357
RenewtheVRA.org:
joint statement.............................................. 361
James Blacksher, Edward Still, Nick Quinton, Cullen Brown and
Royal Dumas, June 2006, report............................. 365
Rosenberg, Steven L., County Attorney, County of Augusta,
Virginia, Verona, Virginia, letter............................. 403
Sinclair-Chapman, Valeria, Assistant Professor of Political
Science, University of Rochester, Rochester, New York, letter.. 405
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and
Vice-Chair, U.S. Commission on Civil Rights, Lexington,
Massachusetts, statement and attachment........................ 407
United Automobile, Aerospace & Agricultural Implement Workers of
America (UAW), Alan Reuther, Legislative Director, Washington,
D.C., letter................................................... 419
Verizon, Ivan Seidenberg, Chairman and Chief Executive Officer,
New York, New York, letter..................................... 421
Wal-Mart, H. Lee Scott, President and Chief Executive Officer,
Bentonville, Arkansas, letter.................................. 422
Watts, J.C. Jr., June 21, 2006, letter........................... 423
Williams, Roger, Secretary of State, State of Texas, Austin,
Texas, letter and attachment................................... 424
Yale Law Journal, Alvaro Bedoya, 115:2112, 2006, article......... 429
APPENDIX
Additional submissions and citations for Voting Rights Act
Reauthorization................................................ 464
RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE
OPTIONS AFTER LULAC V. PERRY
----------
THURSDAY, JULY 13, 2006
U.S. Senate, Subcommittee on the Constitution,
Civil Rights and Property Rights,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:33 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn,
presiding.
Present: Senators Cornyn, Kennedy, and Feingold.
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. [Presiding.] We will come to order. The
Chairman and other members are expected here momentarily, and
then there are going to be some votes that are coming up, so
the Chairman will have to deal with that. But we will get
started, and I would ask consent that my comments appear after
the Chair, and I also have a statement by the Senator from
Vermont, Senator Leahy, and I ask that that be made part of the
record.
I hope that today will conclude our hearings on the
reauthorization of the Voting Rights Act. We have built a
strong record justifying the renewal of the Act's key expiring
provisions--Section 5, Section 203, and the Federal observer
provisions. Voting this bill out of Committee and moving it to
the floor for consideration by the full Senate is essential.
The importance of Act to minority voters and to our Nation's
promise of democracy demands action, and I am hopeful that the
full Senate can pass this bill before the August recess in time
for the 41st anniversary of the signing of the Act, which we
will celebrate on August 6th.
The Supreme Court's decision in LULAC v. Perry that the
Texas Congressional redistricting plan discriminated against
Latino voters in violation of Section 2 of the Act is strong
evidence in favor of reauthorization. The Court found current
discrimination against minority voters in a jurisdiction
covered in its entirety under Section 5 of the Voting Rights
Act. The decision is a vindication of minority voting rights
and another indication that voting discrimination persists
today in some parts of the country, including at the State
level.
The Court made several significant findings. It found that
polarized voting exists throughout the State. Anglo voters in
Texas generally vote for different candidates than minority
voters. We know that redistricting boundaries and altering
election rules in such cases has been used to undermine the
voting rights of minorities. And Section 5 provides a needed
remedy for such practices.
The Court also found that the State has a long, well-
documented history of discrimination against Hispanics and
African-Americans in voter registration, voting, and otherwise
participating in the electoral process. The 2003 redistricting
in Texas was another chapter in that history. The State shifted
100,000 Latino voters from a district where they were on the
verge of electing a candidate of their choice to another
district in which Latinos already controlled election outcomes.
As Justice Kennedy states, ``In essence, the State took
away the Latinos' opportunity because Latinos were about to
exercise it.''
Justice Kennedy found evidence that Texas had intentionally
diluted the voting strength of Latino voters because of their
ethnic background and in violation of the Constitution. Such
evidence of intentional discrimination is obviously very
significant with respect to the constitutionality of extending
Section 5 of the Act.
Even Justice Scalia said, ``We long ago upheld the
constitutionality of Section 5 as proper exercise of Congress's
authority under Section 2 of the 15th Amendment to enforce the
Amendment's prohibition on denial or abridgment of the right to
vote.''
As Justice Scalia emphasized, Section 5 applies only to
jurisdictions with a history of official discrimination. In
fact, the Texas redistricting plan should never have been
before the Court. If the Attorney General listened to the
advice of career attorneys in the Civil Rights Division, he
would not have approved the Texas plan under Section 5.
As Justice Souter said, the Attorney General should have
objected because the State failed to offset the elimination of
a district in which African-American voters had demonstrated an
ability to elect a candidate of their choice under the previous
plan. That is why Chief Roberts was moved to say, ``It is a
sordid business, this divvying us up by race.''
As long as State and local election officials continue to
discriminate against minority voters, laws like Section 5 will
be needed to protect minority voters.
We will hold up. We will have a moment or two recess here
while Senator Cornyn arrives, and then we will hear from
Senator Cornyn and the panel. We thank the witnesses for their
patience. Most of them have some familiarity with this process.
I would indicate to them that their testimony is very important
and we will have a good opportunity to review it carefully here
on the Committee.
[Recess 2:38 p.m. to 2:55 p.m.]
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. We will reconvene. Welcome to each of you.
I ask you indulgence as the Senate has four stacked votes, and
so we will get started here. I will get started. I know Senator
Kennedy was here and delivered his opening statement, but if
you will hang in there with us, we will get this done in the
best form we possibly can.
On behalf of the Chairman, let me say welcome to this
eighth and likely the last in a series of a number of hearings
before the Senate Judiciary Committee on reauthorizing the
temporary provisions of the Voting Rights Act, provisions that
are scheduled to expire about 1 year from now, in the summer of
2007.
Few issues are as fundamental to our system of democracy
and the promise of equal justice under law as are our voting
rights. It is precisely for this reason that it is appropriate
that we continue to engage in a thorough review of the Act and
that we continue to work collectively to ensure that the Act is
reauthorized with due consideration of the requirements of the
Constitution and recent guidance from the U.S. Supreme Court.
As we continue to explore the many issues raised by
reauthorization of the expiring provisions, I am concerned we
may not be as clear as we need to be about what we are
discussing. Many, I think, may be under the false impression
that if Congress does not act, the Voting Rights Act will
expire. Nothing could be farther from the truth. In fact, the
Act's core provision, that is, Section 2, its prohibition on
discrimination with respect to voting, applies nationwide and
is permanent.
What concerns me further is that the current draft rewrites
significant portions of the existing Voting Rights Act.
Unfortunately, in my opinion, in a way that may well have the
effect of further injecting partisan politics into the noble
pursuit of guaranteeing voters access to the ballot box. This
concern of mine and of numerous scholars was heightened by the
Supreme Court's recent opinion in League of United Latin
American Citizens v. Perry, the Texas redistricting case, a
heavily anticipated decision handed down about 2 weeks ago. The
Court upheld virtually all aspects of the Texas redistricting
plan, requiring that a single district be redrawn, although the
ripple effect is unknown at this point.
I believe the Court was right to uphold the bulk of that
plan, because whatever one thinks of partisan gerrymandering,
it has long been the case that legislatures will seek to
maximize party interests when establishing districts for
voting. And until we come up with a better objective system,
partisan gerrymandering will always be a reality of
redistricting. As one of my former colleagues told me, he said,
``You can't take politics out of politics.'' And this is true
whether it is a Democrat- or a Republican-led remapping.
But it is disturbing when an Act that was designed to
ensure voters that voters have full access to the ballot box
has become a vehicle for partisan maneuvering. That is why I
fear that the current rewrite of the Voting Rights Act will do
that, that we are continuing this, in the words of Chief
Justice John Roberts, sordid business of divvying up people by
race. Only now we are perpetuating it under the cloak of
protecting voting rights. I believe we should take great
caution in this exercise.
We have an esteemed group of scholars with us today, and I
look forward to hearing from each of you about your opinions on
the topics I have mentioned and the Voting Rights Act
generally.
Roger Clegg is President and General Counsel of the Center
for Equal Opportunity in Sterling, Virginia, and he has
extensively researched and written on legal issues raised by
our civil rights laws.
Next, Professor Sherrilyn Ifill, from the University of
Maryland Law School in Baltimore. Professor Ifill has
previously served as Assistant Counsel at the NAACP Legal
Defense and Education Fund, where she litigated various Voting
Rights Act cases.
Nina Perales, from the Mexican American Legal Defense and
Educational Fund, is also with us today. Ms. Perales is the
Southwest Regional Counsel for MALDEF in my hometown of San
Antonio, Texas.
Michael Carvin is a partner with the law firm of Jones Day
here in Washington, D.C. Mr. Carvin specializes in
constitutional, appellate, civil rights, and civil litigation
against the Federal Government. He has argued cases in the U.S.
Supreme Court and virtually all Federal appeals courts.
Professor Joaquin Avila is an Assistant Professor of Law at
Seattle University School of Law in Seattle, Washington.
Professor Avila was previously Managing Director and head of
Latin America for Lehman Brothers, where he developed and
implemented strategic plans for the region.
Last, but certainly not least, we have Abigail Thernstrom,
who is joining us for the second time. Ms. Thernstrom is the
Vice Chair of the United States Commission on Civil Rights, and
she has written extensively on race relations and voting rights
issues. Ms. Thernstrom, thank you for returning to be with us
again.
I would especially like to thank Chairman Specter, as well
as Senator Brownback, Chairman of the Subcommittee on the
Constitution, Civil Rights, and Property Rights, for scheduling
this important hearing, and I am delighted to chair it today.
As I said a moment ago, this is going to be a little
helter-skelter, but we will do the best we can and in a way
that allows me to get back and cast votes on the stacked votes
before us. But until then, Mr. Clegg, let's start with you,
please. We will ask you to keep your opening statement to 5
minutes, and then we will proceed with questions. Thank you.
STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER
FOR EQUAL OPPORTUNITY, STERLING, VIRGINIA
Mr. Clegg. Thank you, Senator Cornyn. In my full written
statement, I discuss at some length why I think Section 5 and
Section 203 should not be reauthorized, indeed why I think
doing so would be unconstitutional, and why the Bossier Parish
decisions and Georgia v. Ashcroft should not be overturned if
Section 5 is reauthorized. But in my oral statement this
afternoon, I would like to focus specifically on the divergence
between what the Voting Rights Act was supposed to be and what
it has become, and that divergence is in many ways dramatized
by the Supreme Court's recent decision in LULAC v. Perry.
Section 5 has diverged from its original purpose in several
ways. The first way is that there really is no longer any rhyme
or reason in which jurisdictions are covered and which ones are
not. After several decades, we would expect to need to update
the trigger mechanism, looking at more recent elections or more
recent records of voting violations.
Another way Section 5 has diverged from its original stated
purpose is even more disturbing. It is not being used to stop
racial gerrymandering. It is being used to require it.
Sometimes that motivation is overtly racial. The Voting Rights
Act is being used to foster segregation in voting districts,
and it is being used to try to ensure something like racial
proportionality in legislatures. But at least four of the
Justices in Perry acknowledged that, while generally the
reapportionment there was about politics, not race, what racial
gerrymandering did take place was required by the Voting Rights
Act.
It is also disturbing to see a voting rights statute
twisted into a partisan political device, and this abuse is
committed by both parties. For instance, in Texas, Republicans
did not aim to dilute anyone's voting power because of race.
They were focused on people's voting power because of party--
not always a particularly noble focus but one that is as old as
Elbridge Gerry at least. Still, the Democrats wanted to stop
them, and so they tried, with some success, to use the Voting
Rights Act to do it. Likewise, in Georgia v. Ashcroft, the
Democrats were not trying to hurt black voters or help them,
per se. They just wanted to try to win more seats for
Democrats. But their efforts were challenged under the Voting
Rights Act because it was the tool at hand.
Incidentally, the same kind of abuse can also happen in
ways that do not involve gerrymandering but do involve other
voting practices or procedures that are objected to, ostensibly
because they are racially discriminatory, but really for
partisan purposes. For instance, I suspect that absentee ballot
procedures and voter identification and other anti-fraud laws
are all challenged sometimes not because anyone really believes
that they are intended to be racially discriminatory, but
because one side thinks these rules will hurt their voter
turnout and their disparate racial impact allows the Voting
Rights Act to be invoked for, again, partisan political ends.
The good news, Mr. Chairman, is that in 2006 neither party
wants to stop anyone from voting because of race. All either
party cares about is winning. There is no candidate in either
party who would not be thrilled with 100 percent black
registration and turnout, so long as the candidate was also
confident that those voters would vote for him.
The racial polarization that is often the centerpiece of
Voting Rights Act litigation is an increasingly incoherent
concept. Whites and blacks may frequently vote differently in
some jurisdictions, but it is not about race or discrimination.
It is just about differences in political opinion on issues
like taxes and national defense.
But because African-Americans vote so overwhelmingly
Democratic, any effects test in the voting area can be readily
invoked for partisan purposes, sometimes by one part, sometimes
by the other. For instance, for years Republicans have tried,
sometimes successfully--although those days may be ending--to
use an effects test to pack African-Americans into a relatively
few districts, thus bleaching all the other surrounding
districts white, with the end result that there are lots of
Republican districts and just a few black ones, especially in
jurisdictions like the South where the white voters tend to be
conservative.Of course, conversely, Democrats in Perry argued
that reapportionment aimed at helping Republicans was racially
discriminatory. Well, what is to be done? The obvious answer is
don't renew Section 5.
If Congress insists that it cannot go cold turkey, then at
least it should not make Section 5 worse. The two Bossier
Parish decisions have modestly limited its scope and its
potential abuses. They should not be overturned. I would also
put Georgia v. Ashcroft in this category. The current House
bill not only overturns Georgia v. Ashcroft but replaces it
with a provision that is muddy at best, will lead to years of
more litigation, and will have results that its drafters never
intended. I would add that the more this provision's meaning is
clarified to ensure that it requires the creation of majority-
minority districts, the more clearly unconstitutional it will
be as well.
The case law that has grown up around Section 5 makes its
meaning nearly incomprehensible already. Congress should not
make matters worse by adding language, the meaning of which its
own members cannot agree on.
I would also not extend Section 5 or Section 203 for
another 25 years. The shorter the extension, the better,
especially if Congress changes the statute in ways that might
have unintended consequences. I would also try to put in place
a better, more objective review mechanism, probably in the
statute itself. Congress must undertake a serious, systematic
comparison of voter registration and participation rates by
race in covered versus non-covered jurisdictions, with an
effort to determine the actual causes of any disparities and
specifically whether those causes are discrimination, and if
there are more limited and effective remedies for any
discrimination than the preemption mechanism and an effects
test. Above all, Senator Cornyn, Congress should not extend the
law and then forget about it and its effects for another 25
years--and then scramble and try to figure out what to do about
it in the heat of another election year.
Thank you very much.
[The prepared statement of Mr. Clegg appears as a
submission for the record.]
Senator Cornyn. Thank you, Mr. Clegg.
Professor Ifill?
STATEMENT OF SHERRILYN A. IFILL, ASSOCIATE PROFESSOR OF LAW,
UNIVERSITY OF MARYLAND SCHOOL OF LAW, BALTIMORE, MARYLAND
Ms. Ifill. Thank you for giving me the opportunity to
testify in support of the passage of this bill reauthorizing
the Voting Rights Act.
I followed the deliberations on this matter in the House
and in the Senate with some interest, and I commend both Houses
for the deliberate and thorough way in which you have
considered reauthorization of the Act.
As a former voting rights attorney and now an academic, I
have tried to follow the arguments advanced by those who
disagree with the continued need for the Act, like Mr. Clegg--
arguments that I believe have been most capably countered by
supporters of the Act in the civil rights and academic
communities who have appeared before you.
But I was particularly interested in appearing at this
hearing because I confess to being somewhat intrigued by the
name of the hearing: ``Legislative Options after LULAC v.
Perry.'' I was intrigued because my reading of the Supreme
Court's decision in that case finds nothing that supports
altering the existing framework of the draft bill for
reauthorization of the Voting Rights Act. To the contrary, the
Court's analysis in LULAC, to my mind, strongly supports the
bill. I say this for three reasons.
First, the Court upheld the district court's finding that
voting was racially polarized throughout the State of Texas.
This finding and the Supreme Court's recognition of it is
significant. It reflects the reality that although this country
has come a long way since the Act was passed in 1965, we still,
as Congressman John Lewis stated to this Committee, have a
great distance to go.
When I litigated voting rights cases in the 1980's and
early 1990's in Texas, voting was racially polarized. Fifteen
years later, this political reality continues to shape and to
undermine the ability of minority voters to elect candidates of
their choice.
Second, the Court in LULAC, in its detailed and local
specific analysis of the way in which the dismantling of
District 23 violated Section 2 of the Act, demonstrates why the
protections of the Voting Rights Act are not limited merely to
access to the ballot box, as some would have us believe. In
1965 and again in 1982, Congress explicitly designed the Act to
address any means by which a jurisdiction might interfere with
the ability of minority voters to participate in the political
process and elect candidates of their choice. Rather than
anticipate what those methods might be, Congress, and later the
courts in furtherance of Congress' goals, encouraged--and I am
quoting--''a searching, practical evaluation of the local
political reality and a functional view of the political
process''--I am quoting from the Senate report accompanying the
1982 amendments of the Act--to determine whether a violation of
Section 2 has occurred.
In LULAC, the Court rejected a simplistic numbers game
whereby one Latino district, District 23, could simply be
swapped for another, District 25. The Court recognized instead
that District 23 was dismantled precisely to keep Latinos there
from exercising their increasing power in that district. The
Court described this action by the State of Texas as ``bearing
the mark of intentional discrimination.''
Third, with regard to Section 5, as you know, LULAC v.
Perry was not a Section 5 case; thus, the Court's opinion in
LULAC offers this Committee no new analysis or insight into the
appropriate standard for preclearance under Section 5, the
scope of jurisdictions to be covered under Section 5, or the
trigger formula for Section 5. In fact, the only pronouncements
about Section 5 that I think are of importance for this
Committee's work on the reauthorization bill appear in the
opinion of Justice Scalia, concurring in part and dissenting in
part.
In that opinion, the three most conservative Justices on
the Court joined with Justice Scalia in reaffirming the
constitutionality of Section 5 as a proper exercise of
Congress's authority under Section 2 of the 15th Amendment, a
power that remains undiminished after City of Boerne v. Flores.
Finally, to the charge that the Voting Rights Act fosters
segregation, there are myriad factors that have contributed to
residential segregation in the United States. Some of them
include a history of violence, socioeconomic disparities
between blacks and whites, red-lining, and even choice. None of
these phenomena were created by the Voting Rights Act, and I
would commend certainly a number of studies, including Jim
Loewen's ``Sundown Towns,'' Sheryll Cashin's ``The Failure of
Integration,'' if one wants to look at the purposes and the
causes of residential segregation.
The Voting Rights Act instead has encouraged some of the
most integrated districts, election districts, that this
country has seen in the South.
In conclusion, the Supreme Court's decision in LULAC v.
Perry, to the extent that it bears on the deliberations of this
Committee, reaffirms the importance of reauthorizing the Act,
and I would be happy to take any further questions about the
decision.
Thank you.
[The prepared statement of Ms. Ifill appears as a
submission for the record.]
Senator Cornyn. Thank you very much.
Ms. Perales?
STATEMENT OF NINA PERALES, SOUTHWEST REGIONAL COUNSEL, MEXICAN
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, SAN ANTONIO, TEXAS
Ms. Perales. Thank you, Chairman Cornyn. Thank you for the
opportunity to testify today regarding the Supreme Court
decision in the Texas redistricting case and its implications
for the reauthorization of the Voting Rights Act.
My name is Nina Perales. I am Southwest Regional Counsel
for MALDEF, the Mexican American Legal Defense Fund. MALDEF
successfully litigated the Voting Rights Act claim before the
Court. I argued the appeal on behalf of the GI Forum before the
Supreme Court on March 1, 2006.
The LULAC v. Perry decision is a resounding affirmation of
the Voting Rights Act and its continued importance in
protecting minority voting rights. The Supreme Court decision
also helps us understand why we need the protections of the
temporary provisions in the face of ongoing discrimination in
Texas.
The Court found that Texas had violated the Voting Rights
Act by diluting Latino voting strength in District 23. As
mentioned by Professor Ifill, the Court found racially
polarized voting throughout the State and characterized the
racially polarized voting in District 23 as ``severe.''
For Texas, the State containing the second largest number
of Latinos in the United States, this is the second time a
State redistricting plan has been invalidated in this decade
for violating Latino voting rights.
This decision, although characterized by many as having to
do with partisanship, is not about Democrats and it is not
about Republicans. Importantly, the record in this case
demonstrated that Latinos in District 23 were flexible in their
partisan affiliation and had voted in some numbers for the
incumbent prior to his losing support in the Latino community
steadily over the decade leading up to the redistricting.
This Court in this decision was unable to determine a
standard for partisan gerrymandering--unable or unwilling, and,
thus, this case does not discuss how the Voting Rights Act
might or might not be squeezed into a partisan agenda. It
simply does not discuss it.
The Supreme Court, however, did affirm the rule that
political maneuvering--and I believe the Supreme Court
understands this can happen from either party--has its limits
when it comes to taking away Latino opportunity to elect. This
case has unusual and hopefully unique facts because it was a
very bad situation for Latinos in District 23. Having grown
into the majority, now comprising 55 percent of the registered
voters, and having voted very cohesively over the last decade,
more and more so against the incumbent, Latinos were divided by
the State, pulled out of this district, just at the point at
which they were going to unseat the disfavored candidate. The
Supreme Court wrote that, Texas ``took away the Latinos'
opportunity because Latinos were about to exercise it.''
The Court did not have any problem at all overruling the
district court in its finding that District 23 was not an
opportunity district. The Supreme Court found that it did offer
the opportunity to elect. It was not a fuzzy or an amorphous
concept, but quite clear, and clear enough for the Supreme
Court to handle it and rule that it was an opportunity district
based on a local appraisal of the facts there, including the
turnout, the election performance, and the registration rates.
Finally, I want to mention that the Subcommittee can be
reassured by the fact that eight Justices wrote specifically to
say that Section 5 of the Voting Rights Act, which was--in
fact, there was no Section 5 claim in this case and there could
not have been because, of course, those issues are reserved to
the Justice Department and the district court in Washington,
D.C. But eight Justices still went out of their way to write
that Section 5 is a compelling State interest and to uphold or
to discuss the Court decisions previously upholding the
constitutionality of Section 5, I think that that is--to the
extent that LULAC v. Perry does speak to the temporary
provisions, it is in a very positive and affirming way.
[The prepared statement of Ms. Perales appears as a
submission for the record.]
Senator Cornyn. Thank you, Ms. Perales.
We are going to have to recess for the vote and return
shortly, I hope.
[Recess 3:17 p.m. to 4:14 p.m.]
Senator Cornyn. We will reconvene the hearing. Again, my
apologies. Simply unavoidable.
Mr. Carvin, we would be glad to hear your opening
statement.
STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON,
D.C.
Mr. Carvin. Thank you, Senator Cornyn. I have been involved
in a number of voting rights----
Senator Cornyn. Mr. Carvin, is your red light on?
Mr. Carvin. Can you hear me now?
Senator Cornyn. I can hear you now. Thank you.
Mr. Carvin. Thank you. I was just going to say that I have
filed a brief on behalf of the Texas Republican Party in the
LULAC case.
To cut to the chase, I think the principal relevance of the
LULAC case for the Section 5 reauthorization was the case's
treatment of so-called influence districts. As you know,
Senator, those are districts where minorities are not
sufficiently large that they can constitute a majority in a
district but they are, nonetheless, sizable enough that they
can form a coalition with non-minority voters to elect their
candidates of choice. And that issue came up in LULAC in the
following way:
There was a Section 2 challenge to the failure to maintain
or preserve old District 24 where the black population, citizen
voting age population was roughly 26 percent, and it was argued
that even though they were a minority of the district, they
could elect their preferred candidate, who was the white
Democratic incumbent, Martin Frost.
The Court, I should emphasize, did not resolve explicitly
whether or not such claims are ever viable under Section 2, but
it did reject the claim, as it was brought relative to District
24, and it did so with language that is in my statement, where
at least Justice Kennedy indicated that acceptance of this kind
of influence district theory would raise serious constitutional
concerns about the Voting Rights Act.
That continued a long line of precedent in which all the
lower Federal courts, save one, had rejected the continuous
efforts of the Democratic Party in the 2000 redistricting cycle
to have courts order or require these influence districts under
Section 2 and Section 5 of the Voting Rights Act. Those have
been uniformly rejected pursuant to the reasoning that the
Federal judiciary is not empowered or required by the Voting
Rights Act to engage in preferences for one party over another,
even if that party is supported predominantly by minorities. In
other words, it is an obvious fact that certainly in the
African-American community and largely in the Latino community,
the preferred candidate of choice is a Democrat. But the courts
have rejected the notion that that somehow justifies creating
districts where minorities can elect their preferred candidates
of choice.
The mandate of Section 2 is not to prefer any party,
regardless of its demographic composition. It is to ensure that
minority voters have an equal opportunity to elect their
candidates, no guarantees because of partisan preferences.
The relevance of that to the legislation the Committee is
considering is that as that theory of partisan preferences and
influence districts under Section 2 has been uniformly
rejected, I am greatly concerned that the Committee and the
Congress is about to revive it under Section 5. And the reason
for that is that the language in the Senate and House bills
prohibits as retrogressive any redistricting change that
diminishes the ability of minority voters to elect their
preferred candidates of choice. And as I indicated before,
since the preferred candidate of choice is largely Democratic,
you will literally have a Federal statute, passed, ironically,
by a Republican Congress, which says you cannot diminish the
ability to elect Democrats in these covered jurisdictions. This
would not just be a requirement that you preserve majority-
minority districts because we all know that in the
circumstances I previously described, minorities are able to
elect their preferred candidates of choice, even if they are
not a numerical majority in the district because they can form
a coalition with like-minded Democratic voters who are non-
minority.
We also know, of course, that preferred candidates of
choice among the minority community can be either members of
that ethnic group or non-minorities. For example, in the LULAC
case, Representative Bonilla is a Latino, but as Ms. Perales
indicated previously, he was not the Hispanic candidate of
choice. You do not look at the ethnicity of the candidate. You
look at the voting patterns of the particular ethnic group.
So LULAC confirms again that if you have a requirement in
the Voting Rights Act that says you cannot diminish the ability
to elect a preferred candidate of choice, what you have, in
essence, done is prevent dismantling districts like the old
District 24 in Texas because that would diminish the ability to
elect the preferred candidate.
I will also briefly mention the override of the Bossier
Parish II case, which is of particular relevance to me because
I successfully argued that case in the Supreme Court, and the
evil there is that it enables the Justice Department to find
discriminatory purpose every time that the submitting
jurisdiction does not maximize the number of minority
opportunity districts. And after the Georgia v. Ashcroft
override, that would not only mean maximizing the number of
majority-minority districts, it would mean maximizing the
number of the so-called influence districts, which, as you
indicated in your opening statement, in my mind injects
partisan consideration of favoritism into a statute that is
supposed to ensure racial neutrality. And I think that would be
a very troubling development, particularly 40 years after the
enactment of the first version of Section 5.
Thank you.
[The prepared statement of Mr. Carvin appears as a
submission for the record.]
Senator Cornyn. Thank you, Mr. Carvin.
Professor Avila, we would be glad to hear your opening
statement.
STATEMENT OF JOAQUIN G. AVILA, ASSISTANT PROFESSOR OF LAW,
SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, WASHINGTON
Mr. Avila. Good afternoon, Senator. I would just like to
add for the record that even though I would have liked to have
been a strategic partner for the Lehman Brothers--I probably
would have been better off financially--I have spent most of my
time during the past 32-plus years doing nothing but voting
rights litigation. And I am now transitioning myself into a
teaching career.
I am here because I want to just simply state that voting
discrimination still persists and it is very pervasive. As a
result of my experiences during the past 30-plus years, in
Texas from 1976 to 1986, when I was involved with the Mexican
American Legal Defense and Educational Fund, I presented
testimony before Congress back in 1981 when it was
reauthorizing the 1982 Voting Rights Act Amendments. And in
that testimony I presented a very extensive record of voting
discrimination.
That experience continued when I started to open up my
voting rights practice in California, and as a result of that
voting rights practice, I have had substantial experience in
terms of documenting racially polarized voting, Section 5
violations in Monterey County and in Kings County in
California. And the impact of Section 5 has been very dramatic
in California.
Just to give you one illustration, in Monterey County,
California, the Board of Supervisors had submitted a plan for
redistricting that had to be submitted for Section 5
preclearance. And as a result of Section 5, we were able to
prevent the implementation of a plan that was going to divide
and fragment a politically cohesive minority community. And if
we did not have Section 5, then we would have had to have
litigated under Section 2 of the Voting Rights Act. And as a
result of a letter of objection that was issued by the Attorney
General at that time, we were able to prevent the
implementation of a plan that had a clear discriminatory
effect.
It is not just the application of just some draconian law.
This had a dramatic impact in Monterey County. It resulted in
the election of the first Latino supervisor in over 100 years.
That is what Section 5 did in Monterey County.
My experiences out there in California also demonstrated
that there is a significant issue of noncompliance with Section
5. As a result of the noncompliance, jurisdictions simply
refused to submit their voting changes for approval. And, in
fact, I was involved in two Supreme Court cases, involving,
again, Monterey County, where you had a series of judicial
district consolidations that had occurred from 1968 to 1983
that had not even been submitted. It took two U.S. Supreme
Court cases and 9 years of litigation in order for Monterey
County and the State of California to comply.
Most recently, in additional litigation in Monterey County,
the county, in fact, had not submitted for preclearance a
series of consolidations of their voting precincts, and it
took, again, litigation. Section 5 is very much needed. And, in
fact, just on Cinco de Mayo of this year, we had a letter of
objection that was issued by the Attorney General against the
North Harris, Monterey County Community College District
because there was a reduction in voting places. It went from 84
polling places to 12 polling places, and clearly this had a
dramatic impact on voter participation in that community
college district. And the Attorney General issued a letter of
objection.
It is just not merely one of these de minimis voting
changes. In that particular submission to the Department of
Justice, it was consolidated down to 12 voting precincts from
84, and each of the newly consolidated voting precincts in the
non-minority area, where you had the least number of Latinos,
it was 6,500 voters. In the more heavily concentrated Latino
voters in that district, you had 67,000 voters. That is a
dramatic impact. That is why Section 5 is needed. And that is
why it is needed for an additional 25 years.
We have not gotten to the point yet, from 1982 to the
present, where we can definitely say that we have addressed and
resolved all the issues of voting discrimination and racially
polarized voting. That continues to this day. And the primary
purpose of the Voting Rights Act is to address problems that
started with the founding of this country related to issues of
voting. And the purpose of the Voting Rights Act as stated in
State of South Carolina v. Katzenbach was to banish the blight
of voting discrimination once and for all. And that is what we
ask you to do.
[The prepared statement of Mr. Avila appears as a
submission for the record.]
Senator Cornyn. Thank you very much, Professor.
Ms. Thernstrom?
STATEMENT OF ABIGAIL THERNSTROM, SENIOR FELLOW, THE MANHATTAN
INSTITUTE, AND VICE CHAIR, U.S. COMMISSION ON CIVIL RIGHTS,
LEXINGTON, MASSACHUSETTS
Ms. Thernstrom. Thank you for the opportunity to testify
this afternoon.
The Supreme Court's decision in LULAC v. Perry does indeed
have important implications for the debate over the
reauthorization of the temporary emergency provisions of the
Voting Rights Act. The House bill explicitly protects the
ability of minority citizens to elect their preferred
candidates of choice. But who qualifies as a candidate of
choice? And what does an opportunity district look like?
The LULAC appellants argued that Martin Frost was the
candidate of choice for blacks, that his district was protected
by the Voting Rights Act even though Frost is white, and his
district, which was drawn for partisan reasons, was only 25
percent black. The Court rejected that argument, but would it
have done so if, let's say, the black percentage was 10 points
higher? There are no legal standards either in place or
proposed to answer that question.
The problem of who counts as a minority representative runs
through the infamous leaked Justice Department memo on
preclearing the Texas plan. DOJ staff attorneys claimed that
the white incumbent in District 29 was, in their words,
``basically Hispanic;'' therefore, that Democratic district was
protected by the Voting Rights Act. District 25 as well was
represented by a white Democrat deemed ``responsive to minority
interests.'' It, too, was a Voting Rights Act entitlement,
Justice Department staff argued.
While LULAC appellants claimed that Mr. Frost counted as a
black representative, the Hispanic incumbent Henry Bonilla,
they suggested, was not truly Hispanic because he was a
Republican. And the Court did agree that taking too many
Hispanic Democrats out of the district had deprived minority
voters of electoral opportunity, even though the district
remained majority Hispanic. So a Hispanic incumbent in a
majority Hispanic district is not really Hispanic, but a white
Congressman is described as black by DOJ staff and appellants.
Both political parties can play such definitional games to
further their partisan interests, and the Sensenbrenner bill,
with its dangerously imprecise language, encourages such
gamesmanship.
Definitional games have long been integral to the
Department of Justice enforcement process. Administration
critics are charging bias in the enforcement of the
preclearance provision--an amusing allegation given the fact
that the Justice Department in the 1980's and 1990's used the
Voting Rights Act to pursue an ideologically driven agenda in
blatant conflict with Supreme Court interpretation of the
statutory language.
Most pertinent to LULAC, in the 1990's the Justice
Department saw purposeful discrimination lurking in every
districting plan that contained less than the maximum number of
possible majority-minority districts. And, remember, in
enforcing Section 5, mere suspicion is sufficient to deny
preclearance.
This history is relevant to the House bill which would
allow objections to electoral changes on suspicion of any
discriminatory purpose. Overturning Bossier Parish II, the bill
would reinstate the power of the Justice Department to play
with charges of illegal purpose, undefined, in order to reject
districting plans it does not like, positively inviting
partisan mischief.
Moreover, such an open-ended definition of discriminatory
purposes asks the Justice Department to settle broad questions
of electoral equality that are inappropriate for a process of
swift administrative review. Resolving such questions requires
the specific detailed idiosyncratic knowledge of race and
politics in a local jurisdiction that only a Federal district
court can obtain in the course of a trial. Where discriminatory
intent is suggested, plaintiffs can always bring a 14th
Amendment suit. The statutory amendment is unnecessary.
Section 5's proposed language cannot be administered like a
highway bill. Enforcement depends on unacknowledged normative
assumptions. The murky language of Section 2 protection against
ill-defined discriminatory results already has courts immersed
in what Justice Thomas, echoing Justice Frankfurter, has called
``a hopeless project of weighing questions of political
theory.'' But at least the project is one in which judges,
disciplined by the structure of trials and appeals are engaged.
Not so with the administrative of Section 5. The opaque
language of the proposed House bill will further empower
Justice Department attorneys who make preclearance decisions
behind closed doors, who have no need to explain their
reasoning, and are almost inevitably driven by normative and
partisan convictions, which may vary from one administration to
the next.
America's racial landscape has fundamentally changed in the
last 40 years. The core provisions of the Voting Rights Act are
permanent. Basic 15th Amendment rights are secure. The issue
today is the reauthorization of the emergency provisions that
were constitutionally radical and, thus, initially expected to
last only 5 years. What precisely is needed 41 years later?
Congress has had the time, could take the time to think about
how to answer that question with great care. I realize it is
not likely to do so. I still wish it would.
Thank you.
[The prepared statement of Ms. Thernstrom appears as a
submission for the record.]
Senator Cornyn. Thank you very much. We will proceed to a
round of questions.
Senator Feingold is here, the Ranking Member of the
Subcommittee. I would be glad to defer to you for any opening
statement you would like to make.
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. We have held
several hearings on the Voting Rights Act, both in the full
Committee and in this Subcommittee, and we have been fortunate
to have several outstanding witnesses participate in this
process. I think we have established a solid legislative record
for this legislation.
That said, I am glad that this is the last hearing. It is
time to move to the next stage of the legislative process and
to bring this bill before the Committee so that it can continue
on to the full Senate, where it is my hope that the Majority
Leader will bring it up for a vote before the August recess.
The VRA expires in 2007. This law is too important to take
up under a ticking clock of expiration. We need to complete the
authorization process in this Congress this year. We have a
bipartisan and bicameral consensus, and we should move forward.
I have to say that I am puzzled by comments by some Members
of Congress and critics who continue to argue that certain
provisions of the Voting Rights Act are no longer necessary
because we are living in a different era and that ``there is no
longer racial bias'' in certain areas with a history of
discrimination in voting rights.
The Supreme Court in LULAC v. Perry, of course, found
otherwise. The Court ruled that Texas did, in fact, violate
Section 2 of the Voting Rights Act when it diluted the voting
power of Latino voters in District 23. I do not want to take a
whole lot of time talking about the decision because I want to
get into the question part. But I just want to note that
although the Court's decision gives us some indication of how
the current Court might rule on future Voting Rights Act cases,
it provides no justification for slowing down or holding up
consideration of the Chairman's reauthorization bill.
Mr. Chairman, that is the only opening statement I want to
make. Thank you.
Senator Cornyn. Thank you, Senator Feingold.
Mr. Clegg, let me start with you. During the course of the
discussions and hearings on reauthorization of Section 5 and
Section 203, the main expressed concern is that we not pass
legislation which will be vulnerable to a constitutional
challenge--in other words, be engaged in a futile act insofar
as the Supreme Court in applying the constitutional standard to
that legislation by which they would judge it.
Would you describe for us what you believe, if we were to
reauthorize Section 5 in its current form as proposed, what the
constitutional challenge would be and your assessment as to
whether the Court would indeed uphold it or strike it down?
Mr. Clegg. Sure, I would be delighted to. I appreciate the
question because actually one of the things that I wanted to
clarify, as I was listening to my colleagues' testimony here,
is that I do not think that the Perry decision tips the Court's
hand on what the justices are likely to do if such a challenge
is brought. In fact----
Senator Cornyn. Indeed, if I can interject there, Perry did
not involve Section 5. It was a Section 2 case, right?
Mr. Clegg. That is exactly right, and even more explicitly
than that, Justice Scalia's opinion, which was joined by three
other Justices, has a footnote that says, ``No party here
raises a constitutional challenge to Section 5 as applied in
these cases, and I assume its application is consistent with
the Constitution.'' So, he is not saying that it is
Constitutional; he is just saying that, because it has not been
challenged, he is not going to address that question.
As I explain in some detail in my written statement, I
think that Section 5, if it is reauthorized, would be
constitutionally vulnerable. I think it would be
unconstitutional. I think the Court is likely to strike it
down, and I think the Court should strike it down.
There are basically two ways in which Section 5 is
constitutionally vulnerable. One is that it is extraordinarily
intrusive in matters that are generally left to the States, and
sometimes textually committed to the States. And in addition to
that, it uses an effects test, which the Court has said goes
beyond Congress's authority under the 14th Amendment and the
15th Amendment. The Court has said that you have to have
disparate treatment in order for those amendments to be
violated, and that if Congress goes beyond that and prohibits
State actions that are not disparate treatment, it can do so
only if it is congruent and proportional to stopping disparate
treatment.
I do not think the record has been made for that here. I
think that the problem is compounded by the fact that some
States are covered and other States are not. And I do not think
that the record that Congress has now supports that
discrimination among the different States.
I think that what Congress would have to do in order to
prevent a successful constitutional challenge is show that the
covered jurisdictions have a much worse record than the non-
covered jurisdictions when it comes to intentional racial
discrimination in 2006; and that the use of a preclearance
mechanism and an effects test is essential in order to prevent
that intentional discrimination. And I do not think the record
has been made to do that, and I do not think you can make that
record.
Senator Cornyn. We will have a chance to ask more than one
round, but let me, before I turn it over to Senator Feingold in
36 seconds here, ask Mr. Carvin: Do you agree with Mr. Clegg's
analysis or do you have a different view?
Mr. Carvin. No, and as always it was succinctly stated, and
with the 26 seconds left, I will just add----
Senator Cornyn. Well, that does not apply to you. That
applies to me.
[Laughter.]
Mr. Carvin. All right. Look, Roger walked through the three
factors that are very troublesome. It reverses all the normal
principles of federalism. It singles out, apparently on an
arbitrary basis, what the voting patterns were in 1968, some
States to suffer these special burdens and others to be exempt,
for a law that will extend out to 2032--so, literally, you
know, 70-odd years past the time that the formula used for
triggering was existent. And, of course, the City of Boerne
point, which is that you are exceeding the prohibitions in the
14th and 15th Amendments, all rendered constitutionally
vulnerable.
The one additional point I would add is that I think that
the provisions of the bill, Section 5 of the bill, which
overturned Georgia v. Ashcroft as well as Bossier Parish II,
make it even more constitutionally vulnerable because, after
all, you are making the law more race conscious, for the
reasons I have identified, more of a partisan preference, and
it is very odd. And I do not think the Court will accept the
notion that Georgia in 2006 or California in 2006 is subject to
greater constraints on its redistricting and voting changes
than was Mississippi in 1965. So it is very odd that 40 years
into this process, in the face of all the tremendous gains that
have been made in the political and electoral landscape, that
Congress would actually be ratcheting up the burdens on the
covered jurisdictions at this late date.
Senator Cornyn. Ms. Thernstrom?
Ms. Thernstrom. Could I very quickly comment on that? There
is an additional point here. The trigger for coverage rests on
the inference of intentional discrimination from the
combination of low voter turnout and the presence of a literacy
test. That statistical trigger made sense in 1965. It does not
make sense today. And, in fact, even in 1970, when the
emergency provisions were, of course, reauthorized for the
first time, there was no reason to assume intentional
discrimination on the basis of low voter turnout and the
literacy test in, for instance, Manhattan but not in Queens--
two boroughs in New York.
Over the years, the coverage has become increasingly
arbitrary.
Ms. Ifill. Might I be heard on this, Senator?
Senator Cornyn. Sure. I will come back to you, if you do
not mind, because I hate to intrude on Senator Feingold's time.
So let's turn over to him. We will come back for some more
questions. Thank you.
Ms. Ifill. Thank you.
Senator Feingold. Mr. Chairman, I have here 17 statements
and letters in support of S. 2703 from a wide variety of
organizations, companies, and prominent individuals. I ask that
they be included in the record.
Senator Cornyn. Without objection.
Senator Feingold. Mr. Chairman, I would ask Professor Ifill
to say what she would like to say.
Ms. Ifill. Thank you. I wanted to comment on just a couple
of the points that were made, to first of all comment on the
concern that Section 5 reauthorization would be
unconstitutional because it violates principles of federalism.
The Supreme Court has reviewed on several occasions this
claim and this contention, and, in fact, in LULAC v. Perry,
Justice Scalia, joined by the three most conservative members
of the Court, repeats what the Supreme Court held years ago in
South Carolina v. Katzenbach. And what he said in LULAC v.
Perry in determining that compliance with Section 5 would
constitute a compelling State interest that would justify race-
conscious districting, ``We long ago upheld the
constitutionality of Section 5 as a proper exercise of
Congress's authority under Section 2 of the 15th Amendment to
enforce that Amendment's prohibition on the denial or
abridgment of the right to vote.''
I read that sentence as making it quite clear that there is
no new threat to the constitutionality of Section 5 based on
the question of federalism and intrusion into State control.
Second, with regard to the use of the effects test and the
requirement that when that test is used, it be done so in a way
that is congruent and proportional--and as that relates to the
question of the States that are covered and the trigger
mechanism--it seems to me here that one has to read the Act as
part of a whole. The Act requires that there are certain States
that, based on the trigger, are covered by Section 5. But the
Act also permits States and jurisdictions to bail out if they
are able to prove that they no longer engage in discrimination.
And it also provides opportunities for jurisdictions to be
bailed in through the pocket trigger.
And if one reads the entire statute together, then what it
looks like is a rational and workable way in which Congress can
target the jurisdictions that have the longest and most
egregious history of discrimination, a history that in many
jurisdictions, as evidenced in LULAC v. Perry, is unbroken as
it relates to racially polarized voting and discrimination in
redistricting; and then provide mechanisms so that States or
jurisdictions can be relieved of their obligations under
Section 5, or States or jurisdictions where they should be
covered by Section 5 can be required to engage in preclearance.
So if one reads it all together, it seems to me it provides
a rational and workable scheme that Congress is well within its
authority under Section 5 to create--to enforce its obligations
under the 15th Amendment.
Senator Feingold. Ms. Perales, Professor Ifill anticipated
the question I was going to ask you. With all the hand-wringing
we have heard about the possible constitutional problems of
Section 5, including from Mr. Clegg just now, do you believe
that it is an open question at this point in the minds of the
Justices on the Supreme Court?
Ms. Perales. No, it is absolutely not an open question. I
would also like to address with respect to 203, which somehow
floated into our discussion of this case, even though this case
has nothing to do with Section 203, that there are still, of
course, many hundreds of thousands of voters, even just in my
State of Texas, who suffer from intentional discrimination as a
result and who as a result do not have--did not have the
opportunity to learn English--these are native-born citizens--
and who need the bilingual provisions of the Voting Rights Act
and for whom, of course, this is perfectly constitutional, and
no serious scholar challenges the constitutionality of Section
203.
Senator Feingold. Ms. Perales and Professor Ifill, Mr.
Clegg stated in his written testimony that, ``The Voting Rights
Act has become an instrument for partisan gerrymandering.'' I
happen to disagree with Mr. Clegg and was hoping you would
please share your views on this characterization. Ms. Perales?
Ms. Perales. I would like to address that. Thank you.
I know that there is concern about this, and I think some
of it arises from confusion by observers about the LULAC v.
Perry case. There is confusion about which claims were raised
by which appellants, and also which claims were upheld and
which ones were not. So I would like to make clear, first of
all, that there is nothing in LULAC v. Perry, for example, that
creates confusion around the question of who is the preferred
candidate of minority voters. This is, of course, very well
established in the area of voting rights law. And in this
particular case, the Supreme Court ruled that the incumbent in
District 23 was not preferred by Latino voters because he only
received 8 percent of the support from Latino voters in his
district--not a close call, not a confusing question in the
least.
Similarly, the Court had no problem concluding District 23
was an opportunity district. This is also very well established
and not confusing in this case or in any other area.
I wanted to add that for Latinos, particularly in the
Southwest, opportunity to elect often involves comprising the
majority of the district, and so for that reason, the language
in the current bill, now transitioning to the bill that you
have before you, regarding opportunity to elect the preferred
candidate is not language that expands the protection of the
Voting Rights Act to influence district. It talks about
opportunity to elect, not ability to chime in. And these are
important words. They mean something. Opportunity to elect, as
I mentioned before, for us often means comprising the majority
or--in fact, it almost always means comprising the majority for
us, particularly in Texas. It may also mean coalition, but it
does not mean--and I am hereby referring to the three
categories that were set out in Georgia v. Ashcroft--coalition,
influence, and majority district.
It does not do what Mr. Carvin--disagreeing respectfully
with my colleague, it does not do what he says it does. It is a
limited fix to a decision that is, in our opinion, not correct.
Finally, with respect to Bossier II and the language in the
bill, Bossier II, if limited by the language in the bill, would
not unleash a frenzy of maximization in redistricting. It would
only mean that actions taken with the purpose of racial
discrimination would violate Section 5. Again, very limited,
and thus, overall, I do not think that any of these measures
nor the decision in LULAC v. Perry really does inject
partisanship into the Voting Rights Act. And I say that because
we did not litigate Democratic claims, we did not litigate
Republican claims, and our claims were the only ones that were
upheld.
Senator Feingold. Professor Ifill?
Ms. Ifill. Senator, I have in the last year heard the
Voting Rights Act blamed for partisan gerrymandering,
residential segregation, people identifying themselves by race,
and a whole list of other of society's ills, all of which
existed prior to the enactment of the Voting Rights Act in 1965
in the United States and which continued to exist in the United
States but are most certainly not caused by the Voting Rights
Act.
Earlier, Mr. Carvin said that the Voting Rights Act has now
injected race in such a way into a statute that was designed to
assure racial neutrality, and respectfully, I disagree. Section
5 was not actually designed to assure racial neutrality. By
requiring that jurisdictions submit any voting changes to the
Department of Justice or to the D.C. District Court, Section 5
of the Act required jurisdictions to actually make an
assessment, to look at race, to determine whether or not a plan
that they were proposing would result in the diminution of
voting strength, of minority voting strength.
It is important to remember that from the outset the Voting
Rights Act was explicitly targeted at race. It recognized that
the exclusion of racial minorities from full participation in
the political process is one of the worst ills in a democratic
society. And under Congress's enforcement power under the 15th
Amendment, Congress was authorized to take drastic action to
address that problem. So the Voting Rights Act is not a race-
neutral act. It is a race-conscious act.
And then, finally, I would just note with regard to the
issue of the districts that were subject to dispute in LULAC v.
Perry, I find it quite curious and interesting that several of
the districts that were in dispute--District 23 that was
dismantled and later District 24--had, it seems to me, the
kinds of characteristics that I have heard Ms. Thernstrom over
the years and others say we would want in our political system.
District 24 was an integrated district with a 50-percent Anglo
population, a 25-percent African-American population, and I
believe a 20-percent Latino population. The candidate of choice
of black voters in that district was a white person--Martin
Frost. I thought those were the kinds of outcomes that we
wanted to see happen, that we wanted to move away from assuming
that black voters had to support only black candidates and
white voters only white candidates.
District 23, likewise, was a district in which Latino
voters did not support the Latino incumbent. Once again, the
voters were exercising their political choice not based on
race, but based on the interests of their community. And yet
those districts are not lauded and held up as the kind of goal
that we sought with the Voting Rights Act. But instead those
districts are called the result of partisan gerrymandering.
Senator Feingold. Professor Avila, I am out of my time, but
if you want to just quickly, if the Chairman would permit, make
a comment.
Mr. Avila. I just wanted very briefly to add that in terms
of whether Section 5 is involved with partisanship, well over--
there are about 1,100 letters of objection that have been
issued by the U.S. Department of Justice under Section 5 and
well over probably around 90 percent of all of those have
involved nonpartisan city council races, have involved
nonpartisan school district races, have involved nonpartisan
special election district, nonpartisan county commissioners.
So Section 5 is not about partisanship. It is about
providing political access to minorities.
Senator Feingold. Mr. Chairman, thank you for the
additional time.
Senator Cornyn. Sure.
I would like to get the reaction from each of you to this
question. This bill is predicated on election returns in 1964,
1968, and 1972. My question is: Wouldn't it make better sense
to determine what the coverage of Section 5 is to base them on
elections most recent in time, 2000, 2004 Presidential
elections? And I would like for you as part of the question to
note that African-American voter registration now in the areas
covered by Section 5 exceeds that of the U.S. generally. And,
finally, as part of the question, since 1995, the highest
percentage of objections sustained to submissions by covered
districts, the highest was less than one-half of 1 percent.
That is from 1995 to the most current we have. For example,
2005, it was 3,811 submissions and only one objection
sustained.
I would like to get your reaction, each of you, to both the
triggers of those elections predicated on 1964, 1968, 1972, why
it does not make more sense to trigger that with 2000 and 2004,
and particularly get your explanation as to why you think that
coverage under those jurisdictions that are covered by Section
5 where African-American voter registration exceeds that of the
Nation generally and what this sort of ratio of objections to
submissions, why that makes sense. Mr. Clegg?
Mr. Clegg. I think you are exactly right. I think that it
makes perfect sense in 2006 to re-evaluate where we are as a
Nation in terms of discrimination in voting. I do not believe
that there is no longer any discrimination in voting. I do not
know anybody who believes that. Of course, there are still
instances of racial discrimination in voting.
But the question is whether that kind of disparate
treatment exists to a degree and in the kind of pattern that
supports the approach that was written into this bill 41 years
ago. And, therefore, I think Congress needs to look throughout
the United States to see whether there is still disparate
treatment and to what degree. One thing Congress can look at to
determine that is voter registration patterns, but there may be
other things that it needs to look at, too.
You also need to compare whatever evidence of
discrimination you find in the covered jurisdictions--to the
extent of discrimination that you find in non-covered
jurisdictions if you are going to continue to single out some
jurisdictions and not others.
And, finally, you need to ask whether the appropriate
mechanism for fighting that disparate treatment is the
preclearance mechanism because of the federalism problems that
it raises, and whether it includes an effects test, because of
the constitutional problems that an effects test raises and
because of the fact that the use of the effects test has
actually encouraged racial discrimination and racial
gerrymandering.
Senator Cornyn. Professor Ifill?
Ms. Ifill. With regard to the trigger, Senator, I think
what underlies that question is whether or not one regards the
history of egregious discrimination in the jurisdictions that
are covered by Section 5 to be relevant, to have continuing
relevance to the question of monitoring under Section 5. And I
think that most scholars and most litigators in the voting
rights area would agree that that history is relevant.
The triggers that were found were used to reflect that
history of discrimination. Registration can be a symptom of the
problem, but registration itself is not necessarily the
problem. And so Congress used these triggers as a way of
identifying those jurisdictions that reflected through these
symptoms that history of discrimination. But it certainly did
not suggest that that is the only way and that is the benchmark
by which we determine that a jurisdiction has a problem with
discrimination in voting. And that is why once again I suggest
that it is important to look at the Act as a whole, to
recognize that Congress has anticipated both a way in and a way
out for jurisdictions that discriminate that are not covered by
the preclearance formula and for jurisdictions that are covered
by the preclearance formula but that can demonstrate that they
do not engage in discrimination. And read as a whole, it seems
to me there is nothing wrong with continuing to use the trigger
formula that was based on that history of discrimination.
With regard to the second question about DOJ objections, I
think that the number of objections, really, if you look at
that in the abstract, fails to really account for the deterrent
effect of Section 5 preclearance, and that is that many
jurisdictions respond to the Department of Justice in a variety
of ways. Sometimes jurisdictions withdraw the proposed change.
In other instances, the Department of Justice asks for more
information, and jurisdictions provide that additional
information which can result in a change in the plan.
And so the whole process, the whole reality that one has to
submit the plan for preclearance means that jurisdictions take
care and, as I suggest, are required to look at their plans to
determine whether or not they are retrogressive, and it is also
true that the administration by the Justice Department in
reviewing those plans very often results in a change in plans
that are submitted or the withdrawal of plans. And without
taking into account that information, I think you cannot really
read very much from the fact that the number of objections
themselves are small.
Senator Cornyn. Ms. Perales?
Ms. Perales. Thank you. Just briefly, I will do the
Southwest spin on this, which is that many of the Southwestern
States were brought into coverage under Section 5 through the
use of the trigger in 1972. That, of course, is perfectly
appropriate, and, in fact, these jurisdictions still merit the
supervision of Section 5 as evidenced by the continued
discrimination found both by the Justice Department as well as
the Court, for example, in Texas, where we have had both a DOJ
objection statewide in this decade as well as the Supreme Court
finding of discrimination in violation of the Voting Rights Act
in this decade. This tells us that the initial trigger is still
very useful and very viable.
Similarly, with respect to Arizona, Arizona has also had
statewide objections this decade and in, I believe, the
previous two decades with respect to statewide plans.
Finally, with respect to the number of submissions to the
Justice Department and how many objections are made, there are
still very important objections being made, and even this
number of them is making a tremendous difference for minority
voters. And as I mentioned, the objections in Texas, the
objections in Arizona, which are just the statewide ones that I
am mentioning, but also at the local level there are objections
that are helping every day, every year helping minority voters
participate on an equal footing with others.
As Professor Avila mentioned, we cannot discount the
widespread noncompliance. There are many, many, many
jurisdictions that are simply not submitting their changes and
violate Section 5 when they implement them.
And, finally, I wanted to give an example of the deterrence
effect of Section 5 in the city of Seguin, which is in between
Austin, Houston, and San Antonio. The city of Seguin, when they
found out that they had a majority of districts in their city
council plan that were going to be Latino in the upcoming
redistricting, they dismantled one of those districts so as not
to have a Latino majority in the city council. This, of course,
is nonpartisan elections.
When they submitted this plan to the Justice Department,
the Justice Department expressed concerns, asked for more
information. As a result, that plan was withdrawn and a better
plan, one that actually reflected the Latino majority of the
city and the five council districts was ultimately submitted.
And so this is an example that I can think of from my
experience where Section 5 worked exactly the way it should,
even though there was not an objection interposed by the
Justice Department.
Senator Cornyn. Before Mr. Carvin answers, let me just get
a quick answer from Professor Ifill and Ms. Perales. If you
think Section 5 serves a useful deterrent effect when it comes
to discrimination against minority voting, do you support its
extension beyond the covered jurisdictions?
Ms. Ifill. Well, I simply just do not think it would be
possible for the Department of Justice to administer what you
are referring to as a kind of nationwide coverage of Section 5.
I think it would essentially be the death knell for Section 5.
I think it would be impossible to----
Senator Cornyn. Do you think it is desirable if it were
possible?
Ms. Ifill. I think it makes more sense, frankly, for
Congress to utilize a program that is a workable program and
one that is based on a history of discrimination in particular
jurisdictions, and as Congress has done, to provide the
opportunity to expand that coverage where appropriate and to
remove that coverage where appropriate. It seems to me that
makes the most sense rather than being overbroad. And, of
course, being overbroad would naturally run one into a
constitutional problem.
Senator Cornyn. Ms. Perales, do you agree, or do you have a
different----
Ms. Perales. Yes, I do agree. It is not appropriate to
expand Section 5 coverage nationwide.
Senator Cornyn. Mr. Carvin?
Mr. Carvin. Well, that touches on, of course, the
fundamental dilemma here, which is nobody is denying that
discrimination exists, but what the record makes fundamentally
clear is that there is no rational way of suggesting that the
covered jurisdictions have more ongoing official discrimination
than the non-covered jurisdictions, whatever benchmark or
analysis you use--voter turnout, election intimidation.
The House report is actually very interesting because I
think if you look at it, you will see that the examples they
come up with and the analysis they come up with of what people
would consider real voting discrimination exists
disproportionately, far disproportionately in the non-covered
jurisdictions than it does in the covered jurisdictions.
So you have to ask yourself whether or not, to go back to
the quote that has been bandied about here from Justice Scalia,
whether or not there is some rationale of official
discrimination which justifies this extraordinary disparate
treatment. I cannot understand why Monterey County is viewed
somehow in California worse than Arkansas or Oklahoma, and I do
not think any rational person could suggest that the problems
there are so different in kind that this extraordinarily
differential treatment from the Federal Government is
authorized.
There has been some discussion here of bail-out and bail-in
provisions, but we all know that the bail-in provisions are
virtually nonexistent, and the bail-out provisions cannot be
used because if you have one statewide objection, it basically
condemns all the subordinate political jurisdictions to being
kept in. If it really is fair to look at circumstances as they
exist in 2006 or 2020 or 2030, it would make a lot more sense
not to have these relatively meaningless bail-out and bail-in
provisions, but have a formula that is tied to some objective
benchmark of minority opportunity and voter participation, all
of which were proposed in the House and I think should be taken
up by the Senate when it comes time to consider the bill.
Thank you.
Senator Cornyn. Professor Avila?
Mr. Avila. Yes, I would like to just say I agree with
Professor Ifill's comments with respect to the triggering
concerns. I would just like to add with respect to the issue of
the number of letters of objection to the number of
submissions, as I indicated earlier, there is a substantial
issue of noncompliance and it is just not me saying this. In
1968, the U.S. Civil Rights Commission indicated that there was
a substantial issue of noncompliance. In 1970, when the Act was
reauthorized, Congress again noted in testimony before Congress
that there was a substantial issue of noncompliance.
In 1975, the same thing occurred. In 1978, you had a GAO
report that documented the fact that there was a substantial
issue of noncompliance. You had the Supreme Court in Perkins v.
Matthew document that there was a substantial issue of
noncompliance.
In 1982, you had Drew Days, who was the Assistant Attorney
General for the Civil Rights Division, testifying before
Congress that there was a substantial issue of noncompliance.
In 1999 and 1996, the Supreme Court in Lopez v. Monterey
County, as I stated earlier, was dealing with judicial district
consolidations. They had not been submitted from 1968, so the
issue of noncompliance is very significant.
We have been doing some initial studies in various counties
in California, and there are hundreds of annexations that have
not been submitted for Section 5 preclearance. So that might in
some part explain why we have this small number of letters of
objection.
Senator Cornyn. Ms. Thernstrom?
Ms. Thernstrom. Well, updating the trigger using simply
2004 turnout would just continue the arbitrary nature of the
coverage, and it is arbitrary.
Look, in 1965, those who designed the Voting Rights Act
knew precisely which jurisdictions needed to be covered, and
they designed a statistical trigger to cover those
jurisdictions; that is, they knew where you had a literacy test
and low voter participation, the combination of black and white
voter participation, under 50 percent--they picked the 50-
percent statistic very carefully in order to get the right
jurisdictions. Where you had that combination of a literacy
test and low voter participation, you knew that that low voter
participation was an indication of the intentional fraudulent
use of literacy tests to disenfranchise blacks.
There is no, there never was in interpreting this Act, an
argument that low voter participation or participation under
the 50-percent mark standing alone was an indication of
intentional discrimination. And, indeed, the only reason, for
instance, New York was covered in the 1970 reauthorization is
because in that low turnout year, three boroughs in New York,
but not the other two boroughs, fell just below the 50-percent
turnout. So you had this arbitrary coverage.
The complaints today about electoral discrimination, the
complaints in 2000 and 2004 involved--in 2000, Florida counties
that were not covered by the Voting Rights Act; in 2004, States
like Ohio, not covered by the Voting Rights Act. I was part of
an instrumental team that commissioned studies for the American
Enterprise Institute. They are on the AEI website, showing
levels of voter participation in the South, showing how high
they are, higher than in the North in many States.
You know, as Richard Hasen, a law professor who is for the
reauthorization of Section 5, has said, ``Bull Connor is
dead.'' And the racial landscape in America has changed. This
bill does not reflect that. Updating the trigger in an
arbitrary manner to 2004 turnout would not reflect that change
either. The bill needs to come into conformity with racial
reality more than four decades down the road. And four decades
in civil rights time, you are talking about a revolution in
racial attitudes in this country and the status of blacks, and
Hispanics, who were, of course, not covered in 1965. But
obviously the revolution has been particularly striking with
respect to African Americans.
Now, in terms of bail-out possibilities, for the reasons
that Mike Carvin just said, bail-out is a joke. And that is the
reason why few jurisdictions have indeed bailed out. And as for
the deterrent effect, look, yes, lots of States were forced, in
order to get the Justice Department off their back in the
1990's, to draw maps that had a maximum number of majority-
minority districts that came as close to proportional racial
and ethnic representation as possible. I did not think
proportional racial and ethnic representation was a value that
was built into the Voting Rights Act, but it was what the
Justice Department was insisting on. So the deterrent effect,
in effect, forced jurisdictions to do what the Voting Rights
Act never should have forced them to do, which violates basic
American values. If you want to see that story, it is spelled
out very nicely by the Supreme Court in Miller v. Johnson. You
have to look at the district court opinion as well as the
Supreme Court opinion.
But it is a disgraceful story, and so I do not buy this
whole argument about a deterrent effect, given the standards
that the Justice Department has been using, which have nothing
to do or not much to do with the actual statute.
Senator Cornyn. This has, I know, been a long afternoon for
you. We are going to have to wrap it up now because we actually
have a meeting of several members of the Judiciary Committee on
this subject at 5:15. I am going to have to leave. But we will
leave the record open so that those members who were unable to
come this afternoon--it has been a particularly hectic day and
week. So that is the reason why--not for lack of interest--that
people have not been here. We will leave the record open for 1
week for them to submit any additional questions in writing or
submit any other materials for the record.
Without objection, I am going to put in the record a number
of articles, editorials, and statements by scholars and
journalists that raise questions about the reauthorization as
drafted. In addition, there is a report of the U.S. Commission
on Civil Rights which will also be made part of the record.
In conclusion, let me just thank each of you for being here
and sharing with us your expertise and point of view. This is
enormously important for all the reasons that we have
discussed, and we are much better off for having your
contribution.
Thank you very much.
[Whereupon, at 5:12 p.m., the Subcommittee was adjourned.]
[Questions and answers, submissions for the record and an
appendix follow.]
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