<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:28753.wais]
S. Hrg. 109-569
THE CONTINUING NEED FOR SECTION 5
PRE-CLEARANCE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MAY 16, 2006
__________
Serial No. J-109-77
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2006
28-753 PDF
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001
COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 10
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 1
prepared statement........................................... 194
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 196
WITNESSES
Arrington, Theodore S., Chair, Department of Political Science,
University of North Carolina-Charlotte, Charlotte, North
Carolina....................................................... 8
Earls, Anita S., Director of Advocacy, University of North
Carolina Law School Center for Civil Rights, Chapel Hill, North
Carolina....................................................... 3
Gaddie, Ronald Keith, Professor of Political Science, University
of Oklahoma, Norman, Oklahoma.................................. 6
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, and Associate Dean for Research and
Academics, Stanford University School of Law, Stanford,
California..................................................... 4
Pildes, Richard H., Sudler Family Professor of Constitutional
Law, New York University School of Law, New York, New York..... 10
QUESTIONS AND ANSWERS
Responses of Theodore S. Arrington to questions submitted by
Senators Cornyn, Coburn, Leahy, Kennedy, and Kohl.............. 24
Responses of Anita S. Earls to questions submitted by Senators
Coburn, Cornyn, Leahy, and Kohl................................ 41
Responses of Ronald Keith Gaddie to questions submitted by
Senators Kohl, Cornyn, and Coburn.............................. 72
Responses of Pamela S. Karlan to questions submitted by Senators
Leahy, Kennedy, Kohl, Cornyn, and Coburn....................... 90
Responses of Richard H. Pildes to questions submitted by Senators
Specter, Cornyn, Coburn, and Kohl.............................. 105
SUBMISSIONS FOR THE RECORD
Arrington, Theodore S., Chair, Department of Political Science,
University of North Carolina-Charlotte, Charlotte, North
Carolina, prepared statement................................... 127
Earls, Anita S., Director of Advocacy, University of North
Carolina Law School Center for Civil Rights, Chapel Hill, North
Carolina, prepared statement................................... 140
Gaddie, Ronald Keith, Professor of Political Science, University
of Oklahoma, Norman, Oklahoma, prepared statement.............. 153
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, and Associate Dean for Research and
Academics, Stanford University School of Law, Stanford,
California, prepared statement................................. 174
Pildes, Richard H., Sudler Family Professor of Constitutional
Law, New York University School of Law, New York, New York,
prepared statement............................................. 198
THE CONTINUING NEED FOR SECTION 5 PRE-CLEARANCE
----------
TUESDAY, MAY 16, 2006
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:32 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Edward M.
Kennedy presiding.
Present: Senators Kennedy and Feingold.
OPENING STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
FROM THE STATE OF MASSACHUSETTS
Senator Kennedy. The Committee will come to order.
If you are seeing a Democrat up here, you may be in
disbelief, but it is the real thing.
[Laughter.]
Senator Kennedy. I had forgotten what it feels like, but it
is beginning to feel pretty good. Eternally hopeful in terms of
the future.
Our Chairman, Senator Specter, had a previous meeting at
8:30 this morning on our immigration bill, and we have a judge
that is going to be voted on at 10 o'clock, so he is
necessarily detained over on the floor, as I imagine, in
dealing with that Ninth Circuit. So we will move ahead with
this morning's hearing. It is enormously important, and we are
very grateful--I am--for him to have this hearing today. I will
make a brief opening comment. I will include his statement in
the record, introduce the witnesses, and then we will get
started.
I commend our Chairman for calling this hearing on the key
question of whether Section 5 is still needed today. President
Johnson said these words in his message to Congress in the 1965
voting rights bill: ``In our system, the first right and the
most vital of all of our rights is the right to vote.''
Jefferson described the elective franchise as ``the ark of our
safety. Unless the right to vote be secured and undenied, all
other rights are insecure and subject to denial for all of our
citizens.''
Section 5 of the Voting Rights Act has been one of the most
effective defenses of that right. For over 40 years, this
provision has helped to sustain the progress that was made by
those who risked their lives and livelihoods in the civil
rights movement. It is an essential protection against back-
sliding by jurisdictions with a history of discrimination in
voting. It prevents these jurisdictions from changing their
voting rules without first showing that the proposed changes
have neither a discriminatory purpose nor effect.
As the Supreme Court stated in upholding Section 5 in South
Carolina v. Katzenbach, ``After enduring nearly a century of
systematic resistance to the 15th Amendment, Congress might
well decide to shift the advantage of time and inertia from the
perpetrators of the evils to its victims.''
The issue of whether Section 5 is still needed today has
come up many times in these hearings, and although we bring
different perspectives to this issue, each member, the
Committee wants to ensure that any legislation passed in this
area gets it right. We are mindful that the Supreme Court will
carefully review the legislation we are considering under the
standards it has applied in reviewing other civil rights laws
in the past. In recent years, the Court struck down a key part
of the AIDS discrimination in employment because it found the
Congressional Record insufficient, Board of Regents of Florida
v. Kimel. It also struck down one part of the Americans with
Disabilities Act, University of Alabama v. Garrett. The Court
based its decision in both these cases on the sufficiency of
evidence in the hearing record. Both of those legislations were
out of my Committee, the Human Resource Committee, and we
thought we had met the standard in terms of the record in both
of those areas. But this we want to make sure we are going to
meet that requirement.
Congress has a special role in enforcing the 15th Amendment
that prohibits racial and ethnic discrimination in voting. As
the Supreme Court has noted, we have broader leeway in this
area than in others because of the close link of the need to
prevent discrimination in voting and the special goals of the
14th and 15th Amendments. In 1999, in Lopez v. Monterey, which
was decided after the Court made clear the need for a specific
record to support legislation under the 14th and 15th
Amendments, the Court acknowledged that the Voting Rights Act
by its nature intrudes on State sovereignty but noted that the
15th Amendment permits this intrusion to remedy discrimination
in voting.
Despite having greater latitude in this area than in
others, there is no question we must make a clear record on any
legislation to extend the expiring provisions of the Act. So I
thank the panel in advance for their help in evaluating this.
We have a very distinguished panel, and we want to thank
them. This is enormously important. These are very
distinguished individuals who have spent an enormous amount of
time in this area and developed a great expertise, and we are
very grateful to them for being with us today: Anita Earls is
the Director of Advocacy, University of North Carolina Center
for Civil Rights, Chapel Hill; Pamela Karlan, the Kenneth and
Harle Montgomery Professor of Public Interest Law and Associate
Dean for Research and Academics, Stanford School of Law; Keith
Gaddie, Professor, Department of Political Science, University
of Oklahoma; Theodore Arrington, Chair, Department of Political
Science, University of North Carolina; and Richard Pildes, the
Sudler Family Professor of Law at NYU.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
So, we thank all of you. We will start in that order. We
would prefer if you can keep your remarks to 5 minutes so we
can get some questions in before the break for the vote on the
floor. Thank you.
STATEMENT OF ANITA S. EARLS, DIRECTOR OF ADVOCACY, UNIVERSITY
OF NORTH CAROLINA LAW SCHOOL CENTER FOR CIVIL RIGHTS, CHAPEL
HILL, NORTH CAROLINA
Ms. Earls. Thank you, Mr. Chairman. I am honored to have
this opportunity to testify concerning the continuing need for
Section 5 pre-clearance. Throughout the Section 5 covered
jurisdictions, minority voters continue to face intentional and
unconstitutional barriers to full and equal participation in
the political process. There are at least five main sources of
evidence documenting continued intentional discrimination in
voting in the covered jurisdictions. I will list these sources
and then summarize what they show.
The sources of evidence are: one, Section 5 objection
letters; two, unsuccessful Section 5 declaratory judgment
actions; three, reported opinions in Section 2 litigation;
four, Section 2 cases resolved by consent decrees or unreported
opinions; and, five, Section 5 submissions that are withdrawn
by the submitting jurisdiction.
First, Section 5 objections since 1982 demonstrate that
purposeful discrimination continues to occur in matters
affecting voting. In the nine States that are substantially
covered, there were a total of 682 objections from 1982 to
2004. Many of these objections included evidence that the
change was motivated by a discriminatory purpose. One study of
these objections reports that in the 1990's, fully 151
objections were based on purpose alone; another 67 objections
relied on a combination of purpose and retrogression; and 41 on
both purpose and the need to comply with Section 2. Thus, the
intent prong was involved in a remarkable 74 percent of all
objections in that decade.
The numerous objection letters from every covered
jurisdiction document an extensive record of local officials
seeking to change dates of election, change election district
boundaries, change city boundaries, and make other changes in
election procedures out of a desire to suppress, diminish, or
negate the effect of minority voters.
The first appendix to my testimony summarizes the number of
objection letters issued by the Department of Justice from the
nine States since 1982, and the second appendix summarizes the
legal grounds for those objections. It is important to note
that many of the objections since 1982 have been to statewide
changes, essentially affecting all of the voters in the State.
Second, declaratory judgment actions where jurisdictions
were denied pre-clearance are evidence of discriminatory voting
laws. Since 1982, there have been a total of 25 cases in which
a three-judge panel considered the proposed change on the
merits and denied pre-clearance.
Third are judicial findings of intentional discrimination
in litigation brought under Section 2. Unfortunately, many of
these findings are in unreported decisions. Indeed, the
discrepancy between the number of reported opinions finding
Section 2 violations and the total number of successful Section
2 cases is huge. In the nine States that are substantially
covered by Section 5, since 1982 there have been 66 reported
cases finding a violation of Section 2 and 587 unreported
cases. Thus, any review of reported cases along seriously
understates the findings.
Nevertheless, while limited to only reported cases of
published opinions, Katz's study concluded that 24 lawsuits
since 1982 identified more than 100 instances of intentionally
discriminatory conduct in voting. Eight of these 24 lawsuits
were in jurisdictions covered by Section 5; 14 were in non-
covered jurisdictions.
Many cases involving allegations of unconstitutional
discrimination are resolved on the more narrow statutory
grounds because courts always avoid constitutional questions if
at all possible. Similarly, frequently there are allegations of
unconstitutional conduct in litigation under Section 2 that is
resolved by a consent decree. While defendants in such cases
often must admit liability, typically they are not willing to
admit to unconstitutional conduct. Thus, the fact that there
have been so many Section 2 cases resolved in favor of
plaintiffs is also relevant evidence that unconstitutional
discrimination has occurred.
Fifth, Section 5 submissions withdrawn by the submitting
jurisdiction before the Department of Justice has had a chance
to issue its determination are further evidence of
discrimination. From 1982 to 2004, 501 proposed changes
affecting voting were withdrawn by jurisdictions after receipt
of a ``more information'' letter. In these instances Section 5
review resulted in the abandonment of potentially
discriminatory changes. Section 5 has opened the door for
minority political participation, but the gains are recent and
fragile.
Levels of registration of minority voters do not begin to
tell the complete story. Congress and the Supreme Court have
long recognized that the Voting Rights Act is intended to
guarantee that minority voters get a ballot and have that
ballot counted equally. Renewal of Section 5 is essential to
protect that guarantee.
[The prepared statement of Ms. Earls appears as a
submission for the record.]
Senator Kennedy. Thank you very much.
Professor Karlan?
STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE MONTGOMERY
PROFESSOR OF PUBLIC INTEREST LAW, AND ASSOCIATE DEAN FOR
RESEARCH AND ACADEMICS, STANFORD UNIVERSITY SCHOOL OF LAW,
STANFORD, CALIFORNIA
Ms. Karlan. Thank you very much, Mr. Chairman, and thank
you for the opportunity to testify today. You have my written
remarks, and I want to highlight in my oral testimony today
three points that come out of them.
The first is I know that you have heard from lots of
witnesses about the Boerne line of cases, and as I explained in
my written testimony, I think that the most relevant cases for
our purposes here are Tennessee v. Lane and Nevada v. Hibbs
because they recognize that Congress's power is at its apogee
when it is dealing with fundamental rights or where it is
dealing with suspect or semi-suspect classifications, and both
of those are true of the Voting Rights Act. The Supreme Court
has recognized that voting is a fundamental right, and it has
recognized that race discrimination is subject to the highest
form of scrutiny.
What I think people have not discussed with you perhaps as
much as they ought to is the two other sources that come out of
the Constitution and the Supreme Court's recent cases that
suggest that your power is at its apogee in dealing with the
Voting Rights Act. The first of these is the Elections Clause--
Article I, Section 4 of the Constitution--which the Supreme
Court has recognized in post-Boerne cases, including Cook v.
Gralike and U.S. Term Limits v. Thornton, as giving Congress
absolutely plenary power over any election in which Federal
officials are selected. And the Court has made clear in Foster
v. Love that this includes protecting the right to register,
protecting the right to vote, protecting the methods of
election and the like.
And so when you are dealing with elections at which Federal
officials are being selected or registration practices that
deal with where Federal officials are being selected, Congress
has more power and there is no federalism concern on the other
side. The Supreme Court has rejected the idea that the Tenth
Amendment has any role to play there.
Finally, in Vieth v. Jubelier--
Senator Kennedy. Just on that point, I guess in your
statement you talk about a mixed election, too. Could you
just--
Ms. Karlan. Yes, any election at which any Federal
officials is covered. It does not matter that there are also
State officials on the ballot, and I talk there a little bit
about the criminal prosecution cases as ones where an
uncontested House race is on the ballot and someone is
prosecuted for vote fraud connected with a sheriff's race or
the like.
Finally, on this point, in Vieth v. Jubelier, Justice
Scalia, writing for a plurality of the Court, recognized that
there are cases where there is a 14th Amendment violation that
the courts cannot alone deal with because there is not a
manageable judicial standard. And he points to figuring out
what a fair and effective process of representation is there as
something that Article I, Section 4, gives you the power to
deal with even if the Court can't. And I think that is quite
relevant to the Georgia v. Ashcroft fix.
My second point--so my first point is your power is at its
apogee here. My second point is this case, unlike all of the
previous Boerne line of cases that have come before the Court,
deals with a renewal of an act that is already in place, and
this has important consequences of two kinds. Let me give an
analogy and then let me talk about the consequences.
The analogy is if you have a really bad infection and you
go to the doctor, they give you a bunch of pills, and they tell
you, ``Do not stop taking these pills the minute you feel
better. Go through the entire course of treatment because,
otherwise, the disease will come back in a more resistant
form.'' And the Voting Rights Act is strong medicine, but it
needs to finish its course of treatment, and that has not yet
happened for reasons that you have heard from other witnesses.
Now, some people have pointed to the fact that the number
of objections has gone down over time, and they say, well, this
shows that there is no necessity for the Act. To the contrary.
If the Act worked perfectly, there would be no objections,
because if the Act worked perfectly, local- and State-level
officials would be deterred from proposing changes that they
cannot show have neither a discriminatory purpose nor a
discriminatory effect.
I know from my own experience doing compliance in
California, dealing with covered jurisdictions there, that the
Voting Rights Act has a huge deterrent effect, and it has a
huge effect in telling jurisdictions that the concerns of
racial minorities should not be at the bottom of the list.
The third point I want to point to is about the evidentiary
record in front of you. Some people have said that effects test
cases are irrelevant to what is going on here. I want to give
you two reasons why that is untrue.
The first comes out of the hearings and the legislative
history of the 1982 amendments in which Congress explained one
of the reasons for the results test in Section 2 is to avoid
the difficult problem of having to call people racists in order
to solve the exclusionary of minorities from the political
process. So when courts decide cases on effects test reasons,
they don't reach the question whether there is also a
discriminatory purpose. But let me tell you from my own
experience that if we had to show discriminatory purpose in
lots of these cases, we could do it. But it would be damaging
to the political system for minority voters who are seeking
inclusion to call the officials they are then going to have to
deal with racists in the future. And, therefore, I think the
effects evidence is quite relevant to you.
I thank you very much for listening and look forward to
questions.
[The prepared statement of Ms. Karlan appears as a
submission for the record.]
Senator Kennedy. Professor Gaddie?
STATEMENT OF RONALD KEITH GADDIE, PROFESSOR OF POLITICAL
SCIENCE, UNIVERSITY OF OKLAHOMA, NORMAN, OKLAHOMA
Mr. Gaddie. Mr. Chairman, my thanks for the invitation to
appear today. My written testimony deals mainly with the
summary of analysis performed by myself and my colleague,
Charles Bullock, at the University of Georgia funded by the
American Enterprise Institute. This set of studies is an effort
to document progress, or lack of progress, in voting rights in
States covered by Section 5 of the Voting Rights Act.
To that end, in my oral statement what I would like to do
is illuminate and highlight in summary fashion the findings of
those reports and also point out some areas of concern with
regard to what a renewed Section 5 should look like. No one can
deny that there is a continuing need for Section 5 of the
Voting Rights Act. The question that arises is: In what form
should Section 5 appear? What should it be applied? To that
end, what I hope to do is to illuminate these questions a bit
further.
We have seen dramatic changes in American politics over the
past 40 years. Minority voter participation has increased
substantially. Descriptive representation of racial and ethnic
minorities has never been so widespread. Southern blacks
register and vote at rates as high or higher than African-
American and white voters in the rest of the Nation.
There is a two-party system in the South which fosters
black political empowerment and office holding, but this
empowerment is realized as the party of choice for most
African-Americans, the Democratic Party, has been relegated to
minority status in legislatures in five Section 5 States of the
South.
When we look at the Section 5 States in the South and we
consider them in the context of two other Southern States,
Arkansas and Tennessee, what progress do we see in terms of
minority participation in office holding? Well, first, Southern
blacks have made dramatic gains at both the mass and the elite
level. However, if the objective of the Voting Rights Act is
proportional representation, that is an elusive goal, more
easily achieved through voting than through elite
participation.
In 2004, African-Americans registered at higher rates than
whites in three Section 5 States and voted at higher rates in
four Section 5 States. Of all the Southern States except
Virginia, African-Americans registered and voted at rates at
least 80 percent of that of white voters in the same States.
Overall, in terms of success in voter participation and
also elite office holding, Alabama and Mississippi emerge as
States in which African-Americans have been more successful
politically, followed by North Carolina, and then Georgia,
Louisiana, and South Carolina--all of which cluster closely
together. Mississippi ranks first in black registration and
turnout and for the proportionality of black mayors. Alabama
ranks first in terms of African-American elected officials in
general and in electing African-Americans to county
commissions, city councils, and school boards. Mississippi
ranks second in elected officials and city council members. On
no dimension does Mississippi place worse than eighth among the
11 Southern States. Alabama, which scored second in terms of
registration, State House members, and Senators, fares very
poorly in terms of African-American representation in statewide
offices, including statewide judicial offices.
The top six States in terms of overall progress are the
ones that were caught by the initial trigger mechanism of the
Voting Rights Act. The two States brought in later, Florida and
Texas, place seventh and ninth in an 11-State South,
respectively, in terms of voting rights progress.
The States never required to comply with Section 5,
Arkansas and Tennessee, rank last and eighth, respectively. Of
the States covered by pre-clearance since 1965, Virginia has
the poorest performance, placing tenth on the composite scale.
Now, with regard to Section 5, what other questions do I
have of concern as an empirical social scientist?
One, after two generations of implementation, are the goals
of the Voting Rights Act achieved? The answer is variable by
State. The progress of some States makes one wonder why the
State continues to be covered in toto by Section 5.
Two, has Section 5 been altered by politics and the tool
with which to advance party causes? Certainly political motives
for the implementation of the Voting Rights Act are evident in
the record of behavior of national and State actors and the
implementation of Section 5, especially in the redistricting
process. There are partisan political consequences that arise
from these political motivations.
Third, have the efforts to satisfy political goals and also
the goals of the Voting Rights Act led to problematic or even
illegal representative maps? Yes.
Fourth, has the standard for satisfying retrogression been
altered by practice and the interpretation of the Supreme Court
to possibly result in unintended consequences? Again, the
answer is yes. The Ashcroft decision presents to me as a
testifying expert and a political scientist a particular
empirical challenge when making assessments of retrogression.
Thank you.
[The prepared statement of Mr. Gaddie appears as a
submission for the record.]
Senator Kennedy. Thank you.
Professor Arrington?
STATEMENT OF THEODORE S. ARRINGTON, CHAIR, DEPARTMENT OF
POLITICAL SCIENCE, UNIVERSITY OF NORTH CAROLINA-CHARLOTTE,
CHARLOTTE, NORTH CAROLINA
Mr. Arrington. Thank you, Mr. Chairman, for this invitation
to speak before the Committee. Let me begin by stating that the
Voting Rights Act is still needed and, therefore, should be
reauthorized with some clarifications made necessary by the
Supreme Court decisions in Georgia v. Ashcroft and Bossier
Parish II. I will focus my comments on Georgia v. Ashcroft and
the continuing impact of racially polarized voting on minority
participation.
There is no question that we have come a long way since
1965. The Voting Rights Act, National Voter Registration Act,
and other statutes have removed many barriers to voter
registration by minorities. However, we still have a long way
to go. Substantial disparities in both registration and turnout
remain for many minorities, particularly Asian and Hispanic
voting-age citizens. Even where those disparities may not be
present, such as African-American voters in some areas,
minority vote dilution is still a problem. It is still a
problem because voting throughout the country is still strongly
racially and ethnically polarized, as I have discovered in my
expert testimony in voting rights cases throughout the country.
When the candidates chosen by minority voters and those chosen
by a majority group differ, election systems and arrangements
must be able to provide equal opportunity for the minority
voters to elect representatives of their choice. Section 5 of
the Voting Rights Act requires covered jurisdictions to
consider whether minority voters have such an equal
opportunity. Section 2 of the Voting Rights Act provides a
mechanism for assuring such equal opportunity throughout
America. Both parts of the Voting Rights Act are still needed
because seemingly racially neutral election procedures such as
at-large voting, major vote requirements, and anti-single-shot
provisions may combine with racially polarized voting to erect
effective barriers to the ability of minority voters to have an
equal opportunity to participate in the political process and
an equal opportunity to elect representatives of their choice.
Georgia v. Ashcroft is an unworkable standard that
undermines the ability of minority voters to have an
opportunity to elect representatives of their choice. In that
case, a narrow 5-4 majority of the U.S. Supreme Court concluded
that a jurisdiction could satisfy Section 5--and perhaps, by
implication, Section 2--by substituting what are called
influence district to provide substantive representation
instead of creating or maintaining districts in which minority
voters have a reasonable opportunity to elect representatives
of their choice.
There are a number of problems with this. There are no
clear guidelines for measuring influence districts or
substantive representation. Like the Court's decisions about
district shape in Shaw v. Reno and its progeny, we are left
with no clear guidelines for drawing districts. There is no way
to know how to comply with the Court's mandate. This is quite
unlike the one-person/one-vote standard, which can be
mathematically determined as the districts are being drawn.
At what level of minority concentration, short of a
reasonable opportunity to elect representatives of their
choice, does a district provide influence? Do minority voters
have influence over a representative they voted against and
whose policies they oppose? How many influence districts are
equal to one opportunity to elect district to provide equal
participation? The right to vote is not based on substantive
representation, but an equal and meaningful right to
participate and elect representatives of choice as the Congress
has recognized in Section 2 of the Voting Rights Act.
Expert witnesses in voting rights cases are an essential
part of the process because litigation involving Section 2 and
the pre-clearance process of Section 5 are fact-intensive
efforts. In the Gingles case, the United States Supreme Court
specifically authorized the use of bivariate ecological
regression analysis to measure the extent of racially polarized
voting. The Court authorized this technique and the plurality
opinion specifically rejected what is called ``multivariate
analysis'' because the probative questions in voting rights
litigation involve the extent to which minority and majority
voters differ in their choice of candidates to represent them.
Racially polarized voting continues to be a pervasive
feature of American politics. Race, ethnicity, and partisanship
are inextricably intertwined, as every student in an
introductory American politics course knows. Some experts for
defendants in voting rights cases argue that partisanship or
some other variable related to race or ethnicity is the ``true
cause,'' but the truth cause can always be traced back to race
or ethnicity. The reauthorization of the Voting Rights Act
should make it clear that influence districts and substantive
representation are not acceptable substitutes for districts in
which minority citizens have a reasonable opportunity to elect
representatives of their choice.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Arrington appears as a
submission for the record.]
Senator Kennedy. Thank you very much.
Professor Pildes?
STATEMENT OF RICHARD H. PILDES, SUDLER FAMILY PROFESSOR OF
CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW
YORK, NEW YORK
Mr. Pildes. Thank you very much, Mr. Chairman. I consider
it a great honor and a great responsibility to testify on
renewal of the Voting Rights Act. I also consider it a somewhat
painful moment for me because I have three concerns in
particular I want to raise here.
First, I am concerned that the evidence in the record does
not address an essential issue to the constitutionality of the
proposed bill, and I am not aware that this concern, though I
think it may be essential, has been addressed in the House
hearings or in the previous hearings before this Committee.
The assumption so far of all of the evidence I have seen,
or most of the evidence at least, is that it is sufficient to
document continuing instances of problems in the area of race
and voting rights in the covered jurisdictions. But I am very
concerned that under the congruence and proportionality test
that the Court now applies in this area, the Court is going to
insist that there be some account of systematic differences
between the covered and the non-covered areas of the United
States.
There is very little evidence in the record on this, and,
in fact, the evidence that is in the record suggests that there
is more similarity than difference. For example, Professor
Arrington has discussed racially polarized voting findings. The
National Commission on the Voting Rights Act Report, which is
an essential study and is part of this record, documents 23
cases from 16 States, since 1982, of polarized voting in
statewide redistricting cases. Half are from covered States.
Half are from non-covered States. So the racial polarization
problem is not unique to the covered areas of the South, at
least in this set of cases.
The Report also quotes judges making findings in various
cases on discriminatory voting practices, but the language,
which is very identical in these cases, comes from States like
Maryland and Massachusetts and Florida, as well as the covered
States. In fact, there are 24 cases reporting findings of
intentional discrimination since 1982, 13 in non-covered
States, 11 in covered States.
Now, I want to be clear about why I raise this point. It is
not to assert that the bill as proposed is unconstitutional.
But I look at this record as a lawyer concerned about how the
courts will respond to it, trying to determine how best to
ensure the constitutionality of a renewed Section 5, and I
think this is an essential issue that has been neglected until
now.
The second point I want to make is related to this issue.
For the most part, national legislation in the voting rights
area since the 1980's, in fact, has been a broad, uniform
national type of legislation, whether in the Help America Vote
Act or in the National Voter Registration Act, as two examples.
And though not widely recognized, these statutes are very
different models of how to protect voting rights through
national legislation than is reflected in Section 5.
Section 5 has never protected the right to vote as such,
and I think we tend to forget that. Section 5 is narrowly
targeted in two respects: it is geographically targeted, and it
is targeted to the problem of racial discrimination in voting.
The more recent models of legislation from Congress, such
as HAVA or the NVRA, are not selectively targeted in either of
these ways. These statutes provide an alternative model that
ought to be part of the discussion when we think about voting
rights policy going forward in the important context provided
by this renewal discussion and debate.
And the third point I want to make is about Georgia v.
Ashcroft and the comments Professor Arrington mentioned about
that case. The bill proposes to overrule Georgia v. Ashcroft. I
consider that to be a mistake, one that will harm the long-term
interests of minority voters, frustrate the formation of
interracial political coalitions in the South, and be damaging
to American democracy. And let me just remind the Committee of
the facts of this case, which also powerfully illustrate and
concretely demonstrate the changes even since 1982 in the
Voting Rights Act in the South.
At the time of the Georgia redistricting at issue there, 20
percent of the State legislators were black, and with their
virtually unanimous support, a coalition of white and black
Democrats sought to unpack slightly three safe minority
districts that the Act had been thought to require in the
1990's.
This was done because of the rise of robust two-party
competition in the south, which was not present in 1982. This
coalition of white and black Democrat legislators agreed that
to maximize the possibility that the Democrats would retain
control of the Senate in Georgia, a few seats would be put
marginally more at risk for the prospect of minority
legislators and Democratic legislators having Committee
chairmanships and the like, and the power to effectively
represent their constituents' interests.
The DOJ argued that the plan violated the Voting Rights
Act. The Supreme Court, had it not rejected that view, would
have, in my view, adopted or endorsed a policy that would have
inverted the basic purposes of the Voting Rights Act. After
all, here were black and white legislators willing to make
their seats more dependent upon interracial voting coalitions.
Here was a large contingent of black legislators, having
entered the halls of legislative power, who now determined that
they and their constituents would have more effective power as
part of a Democratic Senate. Here was Congressman John Lewis,
his life risked in the Selma march to help get the VRA enacted,
his seat not at stake, testifying that this plan was in the
interest of minority voters. And here were black legislators
taking risks, cutting deals and exercising political agency to
forge a winning coalition.
Yet the Act, under the interpretation of the Justice
Department, would have denied these political actors the
autonomy and the agency to make the hard choices at issue--and
they were hard choices--even with partisan control of a major
institution of State government in the south at stake.
The Court's decision permitting this deal instead
recognizes room in the statewide redistricting context for some
modest flexibility in Section 5, given the changes between 1982
and today. Indeed, the Georgia plan involved a modest amount of
flexibility in a circumstance about as compelling as one can
envision. If Congress overturns Georgia v. Ashcroft, it will
make even this limited amount of flexibility illegal.
More generally, I hope that debate over Section 5 does not
remain locked within the models of the past. I suggest that
much of the work of the Voting Rights Act that began in 1965 is
most effectively taken up today by building on the models of
HAVA and the National Voter Registration Act, and protection of
the right to vote as such.
Thank you very much.
[The prepared statement of Mr. Pildes appears as a
submission for the record.]
Senator Kennedy. Thank you very much. Let me ask you just
what is your response to the fact that the test is rather vague
in the Georgia v. Ashcroft?
Mr. Pildes. I think I would have three things I would say
in response to that, Senator. First, the decision is only from
2003. It has never been applied, as far as I am aware, in any
court case or in any DOJ objection. It is simply too early to
know how the courts or the Justice Department will apply it on
a case-by-case basis, No. 1.
No. 2, remember, Section 2 is always present, so the worst-
case scenarios that people describe or worry about will be
protected against by virtue of Section 2. It is not possible to
go back to a situation of 30 percent minority voters spread
across every district in Alabama, given section 2 of the Act.
And third, the standard proposed in the bill to overturn
Georgia, no ``diminished ability to elect'' itself has a
rigidity and a mechanical quality that can lock into place
minority districts in the south at populations that do not
serve minority voters' interests. I don't know under a ``no
diminished ability to elect'' standard if dropping the minority
population from 60 percent to 55 percent is a violated,
dropping it from 55 to 50 percent is a violation, or dropping
it from 50 to 45 is. No ``diminished ability to elect'' is, in
my view, a very rigid and very extreme overreaction to a
decision which I believe is right on the facts, in Georgia v.
Ashcroft. I am not sure if everybody agrees with me about that
on this panel.
Senator Kennedy. We are going to find out.
[Laughter.]
Mr. Pildes. But one question is whether Georgia is right on
the facts, and a second and separate question is, whether the
standard in the case is a troublesome standard and what to do
in light of that?
Senator Kennedy. And you do not believe that the pre-
Georgia rule has the sufficient kind of flexibility to be able
to deal with some of those issues?
Mr. Pildes. Well, if it did not permit the black-white
legislative coalition and districting plan in Georgia,
apparently not. And the Justice Department, remember, objected
to that plan.
Senator Kennedy. Professor Karlan?
Ms. Karlan. Well, I think it is worth remembering one
critical fact about Georgia v. Ashcroft, which is the
Department of Justice got it right, because after the plan was
put into effect, not only did one of the black legislators lose
his seat, but a number of the black voters who were moved into
districts where they were supposed to have influence did in
fact elect white Democrats, who turned around in the 2-weeks
between the election and inauguration and became Republicans.
Now, I am sure that the Republicans in Georgia are very fair
folks, but those black voters have no influence in those
districts.
The question about whether you can reduce the percentage of
black or Latino voters in a district and still meet the
retrogression standard is a red herring. Districts that were 80
percent after the 1970 round of redistricting are now 55
percent, and they are pre-cleared consistently by the
Department of Justice. So the ability-to-elect standard has
always been a standard that works. And this idea of being
locked in a model of the past, you know, to quote Faulkner,
``The past is not dead, it's not even past.'' There are still
people in the Georgia legislature who were found to have
engaged in racist behavior by a Federal District Court in
previous rounds of redistricting in Georgia. So the idea that
we should start by looking at 2001, and ask how things are
going there, seems to me deeply problematic.
Senator Kennedy. Could you comment, Professor Karlan, about
the concerns about over-coverage and under-coverage?
Ms. Karlan. Let me give two answers to that question. One
is about the law of the Voting Rights Act and the other is
about the facts. In the law there is a bailout provision which
has been available to jurisdictions since 1982, and
jurisdictions that ought not be covered, but that are brought
within the trigger, can get out.
On the other side there is what is called the pocket
trigger, and I litigated one of the few cases that actually
resulted in a pocket trigger. And that is when courts find
pervasive intentional racial discrimination in jurisdictions
that are not covered, they can order that those jurisdictions
come under pre-clearance, and we actually did that in a part of
Arkansas, which you heard from, I think, Professor Gaddie's
testimony, is one of the worst States in the south because it
wasn't brought within the Voting Rights Act in 1965.
As a factual matter, if you say, well, half of the examples
of racial discrimination since 1982 occurred in covered
jurisdictions and half occurred in non-covered jurisdictions,
it is worth remembering the denominator there, which is, there
are 9 fully covered States that are covered jurisdictions and
there are 41 States that are not fully covered. So half of the
discrimination is occurring in those 9 States. It suggests that
there is actually more of a problem in the covered
jurisdictions than in the non-covered ones.
Mr. Pildes. Senator Kennedy, can I just respond to at least
that last point?
Senator Kennedy. Yes.
Mr. Pildes. It seems to me that legally the right
denominator would have to be the minority population in
different jurisdictions. We are not going to have Voting Rights
Act issues in Idaho, for example. So when we are comparing the
covered and the non-covered parts of the country, the fact that
55 percent or so of African-Americans live in the south means
that about half of African-Americans live in the south in
covered areas, half do not. That is a very simple figure. And
so the fact that the pattern shows about half of the problems
are in covered States and half in non-covered States, does I
think suggest something that is more general in the United
States. I think Professor Arrington's testimony went to exactly
that point. You find racial polarization in Boston and Chicago,
in Philadelphia, in Cicero. The cases of vote dilution under
Section 2 are spread out across the country. It seems to me the
right denominator has to be where the minority populations are,
and how do those problems compare across different States that
have similar minority populations? Number one.
Number 2. I am more worried than Professor Karlan is about
the lack of evidence in the record about the differences
between covered and non-covered States. I agree, the power of
Congress in the area of voting rights is at its highest, but
the Voting Rights Act in Section 5 is also an extremely
unusual, indeed unique, provision, as you know, in Federal law.
It singles out part of the country.
Now, the constitutional jurisprudence has changed greatly
since the courts last looked at this singling out of one part
of the country. And it seems to me it is one thing, with the
Family Medical Leave Act and cases like Hibbs, to base national
uniform law on evidence from a number of States, but not all
the States. It seems to me, constitutionally, it is a very
different question to base geographically selective national
law, the only one we have, as far as I know, on evidence that
does not today show that that targeting is congruent to the
constitutional violations that are out there. That is what I am
worried about with the evidence in the record so far.
Senator Kennedy. I see others have a comment. And then I
want to get into sort of this block voting.
But, Professor Arrington, did you want to comment?
Mr. Arrington. Just that I wanted to point out that nobody
says that racially polarized voting is in and of itself
evidence of discrimination. The question is how that interacts
with election procedures, with the traditions in the community,
with a number of things, and so I think just to say that
racially polarized voting exists everywhere and therefore there
is no difference between the covered and uncovered
jurisdictions, is simply not true.
That is all I wanted to add.
Senator Kennedy. How do you distinguish this between other
types of voting? I mean Italians vote for Italians, Greeks vote
for Greeks, Irish vote for Irish, comment.
Mr. Arrington. I don't distinguish it at all. I think it is
exactly the same thing. The difference is that in some places
that racially polarized voting has interacted with election
procedures to create a situation in which minority voters do
not have an opportunity to elect candidates of their choice.
And I suspect that happened way back when to Irish voters when
they were a minority in certain places. So I don't think it is
different in that sense at all.
But we do have special obligations regarding race and the
like because of the 15th Amendment.
Senator Kennedy. Let me ask Anita Earls, doesn't the issue
get at the deterrent effect of Section 5, and shouldn't we
expect less discrimination in the covered States?
Ms. Earls. Absolutely. Section 5 not only keeps there from
being so much Section 2 litigation because it stops those
changes from going into effect to begin with, but it also
deters election officials from enacting and putting in place
discriminatory measures to being with.
But I would further suggest that the notion that the
standards you have to meet is to show systematic differences
between covered and non-covered jurisdictions is not the
correct standard, and with all due respect, Professor Pildes is
being very pessimistic about the evidence that is in the record
before you, and in fact, what you have is evidence of sustained
in transigence in the covered jurisdictions that you don't see
in the non-covered jurisdictions.
So, for example, in North Carolina, we have recently a
pattern of local governing bodies going back to at-large
election systems, something that is not occurring in non-
covered jurisdictions. So this pattern of continuing to try to
either go back to discriminatory patterns or enact new
discriminatory measures, is something that is unique to the
covered jurisdictions.
Senator Kennedy. Let me ask Professor Karlan, do you think
that Section 2 is an adequate substitute for 5, and do you
believe the presence of Section 2 makes it unnecessary for
Congress to pass language clarifying the Georgia v. Ashcroft?
Ms. Karlan. No, Senator Kennedy, I don't, for a reason that
the Supreme Court got at as early as South Carolina v.
Katzenbach, where there is that line that you read in your
opening statement about shifting the burden of inertia to the
perpetrators of discrimination and away from the victims.
I did a lot of Section 2 litigation in my prior life before
I became an academic, and it is costly litigation. I would
guess that this Committee is going to see in front of it most
of the people in the country who do the litigation actually
testifying. It is a very small bar of people who do Section 2
litigation and who have the expertise to do it.
When you get down to the local level, the national
organizations often are not involved, they are not aware of
what is going on. What Section 5 does is it shifts that burden
to the Federal Government, which is far better able to bear it
than either minority citizens in poor communities or the very
small civil rights bar. So Section 2 is not an adequate
substitute for Section 5 because it allows the changes to go
into effect, and that means you can go through several election
cycles while the litigation is going on where the
discriminatory change is in effect. It requires the minority
community to find a lawyer who will bring these cases. And let
me tell you, from having litigated the cases and having
litigated the attorneys' fees issues after the cases, this is
not a way of getting rich. It is not even a way of making a
living. And it requires that huge amounts of resources in the
litigation process be used, both by the jurisdictions and by
the individual citizens. So I don't think of it as an adequate
substitute in any way.
Mr. Pildes. Senator Kennedy, I want to just say I agree
with all of that. The point, though, is that Georgia v.
Ashcroft is about redistricting, and statewide redistricting,
as least in that case, so that is the one area in which there
is litigation all over the country, not just under the Voting
Rights Act, but in partisan gerrymandering and other cases too.
This is not the low visibility issue of moving polling places
or changing voting systems in some county. So while it is
generally true that there is a very important difference
between Section 2 and Section 5, the question that is relevant
here, I think, with respect to Georgia, is whether that
difference is significant enough that the south, the covered
States, should not be able to make the same deals in the
redistricting process that the north can where there are
significant minority voting populations in the north. That is,
I think, the focus.
Ms. Karlan. But it is not just--
Mr. Pildes. Let me just respond to one or two other things.
I agree also with Anita Earls, that if there are areas we can
identify of real sustained intransigence and the like,
absolutely those areas should be covered by Section 5. I simply
am saying that in the record, where there is some comparison,
it suggests more similarity than difference, and we ought to
build a record that actually shows that the coverage that we
end up with is congruent to what the record shows about where
the violations are and where they are not.
The final thing I want to say just so I am not
misunderstood--and I consider it important--I am not in any way
saying the problems of race discrimination in the voting area
are in the past. I do not mean to say that. What I mean to say
is the Voting Rights Act in Section 5 was created in an era
where Congress didn't believe it had power to regulate voting
rights as such, but that it had to act under the 14th or 15th
Amendments, particularly to deal with racial discrimination in
voting.
Congress'ss powers now are clearly much broader, not only
under Article I, Section 4, as Professor Karlan mentioned, but
I believe, given that the Supreme Court has held that the right
to vote is a fundamental right in all general elections,
Federal, State and local, for general governmental bodies, I
believe the Congress may well have a general power to enforce
the right to vote, not just in Federal elections, but in all
elections for political bodies that are exercising general
governmental powers.
So what I mean is I want us not to stay locked in the
mindset of the past, in which we think we can only deal with
race discrimination in voting at the national level. We can
deal with the right to vote as such at the national level, and
HAVA and the NVRA reflect that.
Senator Kennedy. Let me just ask you. Of course, we did,
didn't we, in Congress, specifically on the right to vote on
the poll tax, didn't we eliminate for the poll tax, which was
an individual issue?
Mr. Pildes. And the literacy test.
Senator Kennedy. And the literacy test.
Mr. Pildes. Yes, absolutely.
Senator Kennedy. I want to give Professor Karlan must a
response, and then I would like to ask Professor Gaddie and
maybe Arrington, if they would talk a little bit about the
Hispanic, you know, the disparity in terms of the registration,
where we are in terms of that, and Professor Earls, if you have
any kind of comment. And then we are going to be voting
shortly, but this has been enormously interesting, and helpful.
Ms. Karlan. The first point, Senator Kennedy, is that the
Georgia v. Ashcroft standard doesn't just apply to statewide
partisan redistricting, but it applies to all cases, and that
is what worries me, because so much of the discrimination that
goes on is under the radar screen of the national political
parties or the national groups. So when a school board comes in
and says, ``It's true we have some majority black districts
right now, but we think black people would be better off,
they'd have more influence if they were 30 percent of each of
the districts, rather than actually electing anybody to the
school board, than charging it against the Ashcroft standard,''
fine, States can pick among theories of representation.
And I think it is important to understand this is not
mostly a bill about Congressional redistricting or a bill about
State legislative redistricting. It is about what goes on at
the local level, and that is a really critical place to think.
The second thing is I think all of us on the panel here
would support Congress being more aggressive in protecting the
right of every American to register, to cast a ballot and to
have that ballot counted, but there are distinctive problems in
the south with regard to the voting rights of blacks and of
Latinos, which will not be dealt with solely by allowing people
to register and vote. That is part of what you found out in the
move from 1965 to 1970, which was, you know, in the 1965 Voting
Rights Act you have provided for Federal registrars. They went
down to the south and in 2 years they registered more black
people in the south than had been registered in the previous
hundred years. A fabulous achievement. And what did we see?
Almost immediately, jurisdictions started changing the
electoral rules to make sure that the blacks could register and
vote and even have their ballots counted. Those ballots didn't
count for very much. Their votes were diluted.
So I think it is important to recognize that there is both
a general voting rights problem and there is a specific voting
rights problem that deals with the issues of blacks and Latinos
in the covered jurisdictions.
Mr. Gaddie. Senator Kennedy, I am learning today that I
need to be a bit more assertive. I am used to having lawyers
lead my questioning.
[Laughter.]
Mr. Gaddie. I can speak with firsthand experience about the
application of the Ashcroft standard in pre-clearance, having
the dubious distinction of having been involved in the Texas
redistricting. At the time the Texas--if I may have a moment?
Senator Kennedy. Yes.
Mr. Gaddie. As the Texas redistricting was going on, the
Ashcroft decision came down. And I went to Glen Abbott, the
Attorney General of Texas, went to his outside counsel, and
said, ``I have a strong suspicion that with this decision
you'll see DOJ possibly applying a different retrogression
standard, a different kind of baseline.'' And indeed what
happened, both at trial, in front of Judge Higginbotham, down
in the Fifth Circuit, and also in the pre-clearance process,
the argument was made to include any district that appeared to
look like a coalition district as part of the minority baseline
in the initial assessment by the professional DOJ staff. There
was disagreement between the DOJ staff and the political staff
regarding which position should prevail. The political position
prevailed.
When we get into this issue of baselining retrogression,
the challenge for Professor Arrington and I is how do we treat
these coalition districts? How do we treat a 30 percent
minority district where there is a 1 in 4 chance the minority
voter gets their outcome of interest versus a 65 percent
district where the outcome is certain. At the end of the day it
is going to be politics that will guide how that standard is
applied by the DOJ because they will apply their own theory of
representation independent of the theory that the State chooses
to apply.
Mr. Arrington. I think you asked about the question of
Latinos and Asians too?
Senator Kennedy. Please.
Mr. Arrington. Often, particularly in places where the
African-American community has been very well organized for a
long time, like some places in North Carolina, their rate of
voting and turning out is pretty good, often not quite up to
the same as whites, but pretty good. But the disparity between
Latinos and Anglos is generally much greater. And in places
where you have a mixed population, where you have Anglos and
Blacks and Hispanics, the general pattern is that Anglos turn
out and register at the highest rate, Blacks are close to that
in many areas, and then Latinos far, far below that. So you
have a much more serious problem there.
What that means in terms of districting is that if you want
to create a district in which Latinos have a reasonable
opportunity to elect a candidate of their choice, they have to
be concentrated much more in that district than would black
citizens. Often in States like North Carolina, for example, you
can create a district in which African-Americans have a
reasonable opportunity to win with less than 50 percent black
population. That is not true generally for Latinos. It is a
very different situation. It is a much more severely difficult
situation to solve.
Mr. Gaddie. And the other challenge is that we can't count
on homogeneity within the Latino population. There is
tremendous variation of participation across Latino
populations, even within a particular Latino ethnic group
within a State. You look at South Texas, you see high rates of
Latino participation in most of the South Valley, outside of
the sweep between El Paso and San Antonio; very low Latino
participation, relatively speaking, in Metro Dallas and Metro
Houston. So, it becomes extremely contextual with regard to
Latino participation throughout the United States.
Senator Kennedy. Professor Earls?
Ms. Earls. I would just make one final point about the
record before you.
Senator Kennedy. Yes.
Ms. Earls. There are so many examples of recent
discriminatory conduct, it is hard to summarize them in the
time we have, but just two quick things.
Recently, 125,000 voters in predominantly African-American
precincts, that is, targeting black voters in North Carolina,
were sent postcards erroneously telling them that they could
not vote on election day if they had moved, causing great
confusion, discouraging them from voting.
Another example, in 2004, the sheriff of Alamance County in
North Carolina, took a list of registered voters in his county
that had Spanish surnames, and said publicly that he would send
deputies to the homes of each of those voters to verify that
they were citizens. That type of discouraging of minority
voting--those people are all registered, but they are still
targeted by these types of campaigns. That is the atmosphere
that we are dealing with, and those types of examples are found
in numerous other States.
Senator Kennedy. Let me ask you--and others can make a
brief comment--in the Bossier II case, the Supreme Court ruled
that Section 5 prohibits the voting changes only if they worsen
or intend to worsen the position of minorities. In other words,
under Section 5, voting change may not make minorities worse
off, for instance, if they are already completely shut out of
power, it is hard for a change to put them in a worse position,
but it may still dilute their voting power, intentionally
discriminate. Would you agree that under the Bossier II
standard the Department of Justice and District Court for the
District of Columbia must pre-clear even an illegal or an
unconstitutional voting change so long as there is no
backsliding in minority voting power? What is your view on the
case?
Ms. Earls. Yes, that is the impact of Bossier II. It is
essentially a discrimination dividend. As long as you have
excluded blacks or other minorities effectively, you can keep
excluding them, and it has--it is a significant impact on the
ability of--on the Section 5 pre-clearance process to truly
keep discriminatory practices from being put in place.
Senator Kennedy. OK. We are voting on a judge just in a few
minutes, and Senator Feingold, I believe, wanted to come over.
So we will have a brief recess, and then if it turns out that
he is not going to, we will recess.
This has been enormously interesting, and we will ask the
staffs to submit some questions. I was looking to see whether
they had some questions because this is a great panel here. So
there it is, so we will have a brief recess.
We thank you. Let me just ask you, if there are some
areas--we gave you very short time and you have got some good
written statements. All the written statements will be made a
part of the record, and my colleagues, Senator Specter's,
Senator Leahy's statements. They, I believe, passed out the
House bill 33-1 last week in the markup.
But as a result of these questions, if you want to provide
some additional information, we would welcome that, and we will
ask our--I do not know what the rule of the Chair was--two, 3
days for questions? Seven. So we will recess at the call of the
Chair.
Thank you very much.
[Recess.]
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold [presiding]. I am going to reconvene the
hearing. I want to thank the Chairman for allowing me to
continue and perhaps conclude the hearing after I have asked
some questions, unless another colleague comes. Thank you to
the panel. I am sorry that I was not able to hear your
testimony.
First, I want to thank you for this important hearing on
Section 5, the pre-clearance provision of the Voting Rights
Act. Section 5 rightfully imposed heightened oversight on some
of those jurisdictions that were the very worst actors in
discriminatory voting practices.
The advances in minority votes and representation in areas
covered by Section 5 in the past 40 years have been profound.
Although we have made significant advances as a result of the
Voting Rights Act, there is still more work to do. The goal of
the Voting Rights Act is not to reduce discriminatory voting
practices, but to eradicate them entirely.
Section 5 has been instrumental in bringing about the
dramatic improvements in voting rights and representation for
minorities in covered areas. Keeping it in place with a
reasonable bail-out provision is the best way to be sure that
we don't lose the progress that has taken place.
Let me just say in response to some comments that were made
at last week's hearing that all Members of Congress, regardless
of whether they represent a covered or non-covered
jurisdiction, and regardless of their political affiliation,
have an interest in ensuring the continued effectiveness of the
Voting Rights Act. As Federal legislators, we have a
responsibility to address and eliminate discrimination wherever
it is found. The integrity of our elections and our very
democracy depends on it.
Now, let me turn to Professor Arrington. Can you talk a
little bit about racially polarized voting in Section 5-covered
jurisdictions? Do you have any recent evidence of the concern?
Mr. Arrington. Senator Feingold, I have attached to my
written testimony the decision of both the circuit court and
also the district court on the Charleston County Commission
case, and I think that is an interesting one because it shows
the interaction of Section 2 and Section 5.
The United States brought a Section 2 action against the
county council in Charleston County, and I found there the most
extreme polarized voting I think I have ever seen, and I have
been doing this work since 1985. So there was no evidence of
any reduction in polarized voting, at least in Charleston.
The interesting thing to me was that the judge found, in
accordance with my testimony, that there was legally and
substantively polarized voting; that because of that and the
at-large elections that they had there, African-Americans did
not have a reasonable opportunity to elect candidates of their
choice. But he also found that in the school board where the
elections were non-partisan and, as I remember, were not in
numbered posts, African-Americans did have a pretty good chance
of winning.
Right after the judge's decision, the State legislature
changed the school board so it would look like the county
commission elections that the judge had just said violated
Section 2. In turn, of course, the Justice Department would not
pre-clear that change because it was clear from the judge's
decision that that change was in violation of Section 2 and
Section 5.
The racially polarized voting in the school board elections
was only slightly less than the racially polarized voting in
the county commission. They were extreme. We are talking about
90 percent of the blacks typically voting for black candidates
and some similar number of whites voting for white candidates.
Senator Feingold. Well, thank you, Professor, for that
specific answer. I appreciate it.
Professor Karlan, I wondered if you could expand a bit on
the point I understand you made earlier about federalism and
the distinctive power of Congress in the voting rights area.
Does the Boerne line of cases apply differently when we are
talking about voting rights?
Ms. Karlan. Yes, Senator Feingold, it does apply
differently. The major concern in the Boerne line of cases was
the sovereign immunity of the States to lawsuits brought by
individuals against the State. Of course, that specific part of
the concern in the Boerne line of cases, in cases like Kimel or
Garrett or the Florida Prepaid cases, is totally absent here
because Section 5 is not about lawsuits by private individuals
against States for damages at all.
Indeed, the only place where private individuals are
involved is either as defendant intervenors where the State has
brought a lawsuit and has waived any sovereignty claim or in
cases trying to force States actually just to comply with the
obligation to seek pre-clearance.
Now, that being said, there are a couple of other things
about the Boerne line of cases that I think are very helpful in
explaining why I think Congress's power here is, if anything,
at its absolute peak. One of them is even the post-Boerne cases
all cite the Voting Rights Act of 1965 as the example of a
statute that meets the Boerne test of being congruent and
proportional.
That is true as late as Lopez v. Monterey County, the
California partially covered State case, where Justice O'Connor
wrote for the Court that the Voting Rights Act by its nature
intrudes on State sovereignty, but the 15th Amendment permits
that intrusion. Indeed, I think because the enforcement clauses
of both the 14th and 15th Amendments tell Congress to enforce
that, it almost demands that Congress intrude on State
sovereignty when States are denying blacks or Latinos the right
to vote.
Now, on top of that, as I suggested in my testimony this
morning, the one concrete suggestion I would have for the
Committee in the drafting of Section 5 is to make it clear that
you are not just relying on the enforcement clauses of Section
5 of the 14th Amendment and Section 2 of the 15th Amendment,
but that you are also relying on Article I, Section 4, of the
Constitution, which is the so-called Time, Place and Manner, or
Election Clause.
That is the clause that says, in the first instance, States
decide how to conduct the time, place and manner of the
elections for the House of Representatives, but Congress may
override. And the Supreme Court has made clear since 1917 at
the latest that that means Congress can override any
determinations the States made about that.
In the Foster v. Love case, the Supreme Court says--and let
me just quote a little bit here--``The clause gives Congress
comprehensive authority to regulate the details of elections,
including the power to impose the numerous requirements as to
procedures and safeguards which experience suggests shows are
necessary to enforce the fundamental right involved.''
And in other cases, they have said that includes
registration, day of election protection, protection against
fraud. And since 1842, as you probably know, Congress has
required that States elect members of the House of
Representatives by district. That is not something the
Constitution requires. The Congress requires it, and that
overrides.
So if a State said tomorrow, well, we want to elect our
members of the House of Representatives at large, the answer
would be you can't. There is no Tenth Amendment reserved power
for the States at all when it comes to the regulation of
Federal elections, and much of what the Voting Rights Act does
is to regulate people's participation in Federal elections. And
as Senator Kennedy was saying when he was here earlier, that
includes mixed elections. So if you have any Federal candidate
on the ballot, it counts as a Federal election for Article I,
Section 4, purposes.
Senator Feingold. Thank you very much, Professor.
Finally, Ms. Earls, what would happen in covered
jurisdictions in the absence of Section 5?
Ms. Earls. I think that actually the North Carolina
experience is very instructive on that question because 40 of
the State's counties are covered. There are 100 counties in the
State as a whole, so we really have a basis for comparison.
There are at least three examples I can give of current things
that are happening in non-covered counties that are protected
in the covered counties.
For example, several counties non-covered under Section 5
sued under Section 2, required by court order to put in place
single and redistrict systems, are now passing laws to go back
to at-large election systems. Under Section 5, that would be
retrogression and it is prohibited. It is not happening in the
covered counties.
Another example is the deterrent effect of Section 5. In
preparation for the report that we prepared on North Carolina
and Virginia, we had hearings and local residents came and
talked about how in the covered counties local officials will
consult with them if they want to move a polling place or when
they are enacting new districting plans. That doesn't happen in
the non-covered counties. So there is real evidence of a
deterrent effect that currently means that minority voters have
a greater involvement in decisions about election procedures as
they are being made.
A third example is the whole question of annexations. We
are dealing in North Carolina with a number of traditionally
minority communities that are left out of town boundaries. They
don't get public services and they don't have the right to
vote.
In Rocky Mount, a covered city, in the late 1990's, that
city annexed Battleboro, a predominately black neighborhood,
because under Section 5 they couldn't continue to annex white
areas and not annex that black neighborhood. In Pinehurst, not
a covered jurisdiction, there are four or five African-American
communities that are outside the town boundaries that still
don't have water and sewer and still can't vote for local
officials. So there is really a difference in the experiences
of covered versus non-covered counties.
I would finally just say the impact of Section 5 being
removed--in North Carolina, we have under cases decided in the
past few years in the State courts a whole-county provision
that requires legislative districts to be drawn from whole
counties. If Section 5 is removed, we are at risk of losing
from 5 to 11 of our current legislative districts that elect
candidates of choice of black voters. So we really will see a
huge impact if Section 5 is lost.
Senator Feingold. I thank you for all of your answers. I
don't think there is any more important subject than the
subject of voting rights, so we thank you.
I understand it is appropriate for me to adjourn the
hearing. Thank you very much.
[Whereupon, at 11:12 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
[GRAPHIC] [TIFF OMITTED] T8753.001
[GRAPHIC] [TIFF OMITTED] T8753.002
[GRAPHIC] [TIFF OMITTED] T8753.003
[GRAPHIC] [TIFF OMITTED] T8753.004
[GRAPHIC] [TIFF OMITTED] T8753.005
[GRAPHIC] [TIFF OMITTED] T8753.006
[GRAPHIC] [TIFF OMITTED] T8753.007
[GRAPHIC] [TIFF OMITTED] T8753.008
[GRAPHIC] [TIFF OMITTED] T8753.009
[GRAPHIC] [TIFF OMITTED] T8753.010
[GRAPHIC] [TIFF OMITTED] T8753.011
[GRAPHIC] [TIFF OMITTED] T8753.012
[GRAPHIC] [TIFF OMITTED] T8753.013
[GRAPHIC] [TIFF OMITTED] T8753.014
[GRAPHIC] [TIFF OMITTED] T8753.015
[GRAPHIC] [TIFF OMITTED] T8753.016
[GRAPHIC] [TIFF OMITTED] T8753.017
[GRAPHIC] [TIFF OMITTED] T8753.018
[GRAPHIC] [TIFF OMITTED] T8753.019
[GRAPHIC] [TIFF OMITTED] T8753.020
[GRAPHIC] [TIFF OMITTED] T8753.021
[GRAPHIC] [TIFF OMITTED] T8753.022
[GRAPHIC] [TIFF OMITTED] T8753.023
[GRAPHIC] [TIFF OMITTED] T8753.024
[GRAPHIC] [TIFF OMITTED] T8753.025
[GRAPHIC] [TIFF OMITTED] T8753.026
[GRAPHIC] [TIFF OMITTED] T8753.027
[GRAPHIC] [TIFF OMITTED] T8753.028
[GRAPHIC] [TIFF OMITTED] T8753.029
[GRAPHIC] [TIFF OMITTED] T8753.030
[GRAPHIC] [TIFF OMITTED] T8753.031
[GRAPHIC] [TIFF OMITTED] T8753.032
[GRAPHIC] [TIFF OMITTED] T8753.033
[GRAPHIC] [TIFF OMITTED] T8753.034
[GRAPHIC] [TIFF OMITTED] T8753.035
[GRAPHIC] [TIFF OMITTED] T8753.036
[GRAPHIC] [TIFF OMITTED] T8753.037
[GRAPHIC] [TIFF OMITTED] T8753.038
[GRAPHIC] [TIFF OMITTED] T8753.039
[GRAPHIC] [TIFF OMITTED] T8753.040
[GRAPHIC] [TIFF OMITTED] T8753.041
[GRAPHIC] [TIFF OMITTED] T8753.042
[GRAPHIC] [TIFF OMITTED] T8753.043
[GRAPHIC] [TIFF OMITTED] T8753.044
[GRAPHIC] [TIFF OMITTED] T8753.045
[GRAPHIC] [TIFF OMITTED] T8753.046
[GRAPHIC] [TIFF OMITTED] T8753.047
[GRAPHIC] [TIFF OMITTED] T8753.048
[GRAPHIC] [TIFF OMITTED] T8753.049
[GRAPHIC] [TIFF OMITTED] T8753.050
[GRAPHIC] [TIFF OMITTED] T8753.051
[GRAPHIC] [TIFF OMITTED] T8753.052
[GRAPHIC] [TIFF OMITTED] T8753.053
[GRAPHIC] [TIFF OMITTED] T8753.054
[GRAPHIC] [TIFF OMITTED] T8753.055
[GRAPHIC] [TIFF OMITTED] T8753.056
[GRAPHIC] [TIFF OMITTED] T8753.057
[GRAPHIC] [TIFF OMITTED] T8753.058
[GRAPHIC] [TIFF OMITTED] T8753.059
[GRAPHIC] [TIFF OMITTED] T8753.060
[GRAPHIC] [TIFF OMITTED] T8753.061
[GRAPHIC] [TIFF OMITTED] T8753.062
[GRAPHIC] [TIFF OMITTED] T8753.063
[GRAPHIC] [TIFF OMITTED] T8753.064
[GRAPHIC] [TIFF OMITTED] T8753.065
[GRAPHIC] [TIFF OMITTED] T8753.066
[GRAPHIC] [TIFF OMITTED] T8753.067
[GRAPHIC] [TIFF OMITTED] T8753.068
[GRAPHIC] [TIFF OMITTED] T8753.069
[GRAPHIC] [TIFF OMITTED] T8753.070
[GRAPHIC] [TIFF OMITTED] T8753.071
[GRAPHIC] [TIFF OMITTED] T8753.072
[GRAPHIC] [TIFF OMITTED] T8753.073
[GRAPHIC] [TIFF OMITTED] T8753.074
[GRAPHIC] [TIFF OMITTED] T8753.075
[GRAPHIC] [TIFF OMITTED] T8753.076
[GRAPHIC] [TIFF OMITTED] T8753.077
[GRAPHIC] [TIFF OMITTED] T8753.078
[GRAPHIC] [TIFF OMITTED] T8753.079
[GRAPHIC] [TIFF OMITTED] T8753.080
[GRAPHIC] [TIFF OMITTED] T8753.081
[GRAPHIC] [TIFF OMITTED] T8753.082
[GRAPHIC] [TIFF OMITTED] T8753.083
[GRAPHIC] [TIFF OMITTED] T8753.084
[GRAPHIC] [TIFF OMITTED] T8753.085
[GRAPHIC] [TIFF OMITTED] T8753.086
[GRAPHIC] [TIFF OMITTED] T8753.087
[GRAPHIC] [TIFF OMITTED] T8753.088
[GRAPHIC] [TIFF OMITTED] T8753.089
[GRAPHIC] [TIFF OMITTED] T8753.090
[GRAPHIC] [TIFF OMITTED] T8753.091
[GRAPHIC] [TIFF OMITTED] T8753.092
[GRAPHIC] [TIFF OMITTED] T8753.093
[GRAPHIC] [TIFF OMITTED] T8753.094
[GRAPHIC] [TIFF OMITTED] T8753.095
[GRAPHIC] [TIFF OMITTED] T8753.096
[GRAPHIC] [TIFF OMITTED] T8753.097
[GRAPHIC] [TIFF OMITTED] T8753.098
[GRAPHIC] [TIFF OMITTED] T8753.099
[GRAPHIC] [TIFF OMITTED] T8753.100
[GRAPHIC] [TIFF OMITTED] T8753.101
[GRAPHIC] [TIFF OMITTED] T8753.102
[GRAPHIC] [TIFF OMITTED] T8753.103
[GRAPHIC] [TIFF OMITTED] T8753.104
[GRAPHIC] [TIFF OMITTED] T8753.105
[GRAPHIC] [TIFF OMITTED] T8753.106
[GRAPHIC] [TIFF OMITTED] T8753.107
[GRAPHIC] [TIFF OMITTED] T8753.108
[GRAPHIC] [TIFF OMITTED] T8753.109
[GRAPHIC] [TIFF OMITTED] T8753.110
[GRAPHIC] [TIFF OMITTED] T8753.111
[GRAPHIC] [TIFF OMITTED] T8753.112
[GRAPHIC] [TIFF OMITTED] T8753.113
[GRAPHIC] [TIFF OMITTED] T8753.114
[GRAPHIC] [TIFF OMITTED] T8753.115
[GRAPHIC] [TIFF OMITTED] T8753.116
[GRAPHIC] [TIFF OMITTED] T8753.117
[GRAPHIC] [TIFF OMITTED] T8753.118
[GRAPHIC] [TIFF OMITTED] T8753.119
[GRAPHIC] [TIFF OMITTED] T8753.120
[GRAPHIC] [TIFF OMITTED] T8753.121
[GRAPHIC] [TIFF OMITTED] T8753.122
[GRAPHIC] [TIFF OMITTED] T8753.123
[GRAPHIC] [TIFF OMITTED] T8753.124
[GRAPHIC] [TIFF OMITTED] T8753.125
[GRAPHIC] [TIFF OMITTED] T8753.126
[GRAPHIC] [TIFF OMITTED] T8753.127
[GRAPHIC] [TIFF OMITTED] T8753.128
[GRAPHIC] [TIFF OMITTED] T8753.129
[GRAPHIC] [TIFF OMITTED] T8753.130
[GRAPHIC] [TIFF OMITTED] T8753.131
[GRAPHIC] [TIFF OMITTED] T8753.132
[GRAPHIC] [TIFF OMITTED] T8753.133
[GRAPHIC] [TIFF OMITTED] T8753.134
[GRAPHIC] [TIFF OMITTED] T8753.135
[GRAPHIC] [TIFF OMITTED] T8753.136
[GRAPHIC] [TIFF OMITTED] T8753.137
[GRAPHIC] [TIFF OMITTED] T8753.138
[GRAPHIC] [TIFF OMITTED] T8753.139
[GRAPHIC] [TIFF OMITTED] T8753.140
[GRAPHIC] [TIFF OMITTED] T8753.141
[GRAPHIC] [TIFF OMITTED] T8753.142
[GRAPHIC] [TIFF OMITTED] T8753.143
[GRAPHIC] [TIFF OMITTED] T8753.144
[GRAPHIC] [TIFF OMITTED] T8753.145
[GRAPHIC] [TIFF OMITTED] T8753.146
[GRAPHIC] [TIFF OMITTED] T8753.147
[GRAPHIC] [TIFF OMITTED] T8753.148
[GRAPHIC] [TIFF OMITTED] T8753.149
[GRAPHIC] [TIFF OMITTED] T8753.150
[GRAPHIC] [TIFF OMITTED] T8753.151
[GRAPHIC] [TIFF OMITTED] T8753.152
[GRAPHIC] [TIFF OMITTED] T8753.153
[GRAPHIC] [TIFF OMITTED] T8753.154
[GRAPHIC] [TIFF OMITTED] T8753.155
[GRAPHIC] [TIFF OMITTED] T8753.156
[GRAPHIC] [TIFF OMITTED] T8753.157
[GRAPHIC] [TIFF OMITTED] T8753.158
[GRAPHIC] [TIFF OMITTED] T8753.159
[GRAPHIC] [TIFF OMITTED] T8753.160
[GRAPHIC] [TIFF OMITTED] T8753.161
[GRAPHIC] [TIFF OMITTED] T8753.162
[GRAPHIC] [TIFF OMITTED] T8753.163
[GRAPHIC] [TIFF OMITTED] T8753.164
[GRAPHIC] [TIFF OMITTED] T8753.165
[GRAPHIC] [TIFF OMITTED] T8753.166
[GRAPHIC] [TIFF OMITTED] T8753.167
[GRAPHIC] [TIFF OMITTED] T8753.168
[GRAPHIC] [TIFF OMITTED] T8753.169
[GRAPHIC] [TIFF OMITTED] T8753.170
[GRAPHIC] [TIFF OMITTED] T8753.171
[GRAPHIC] [TIFF OMITTED] T8753.172
[GRAPHIC] [TIFF OMITTED] T8753.173
[GRAPHIC] [TIFF OMITTED] T8753.174
[GRAPHIC] [TIFF OMITTED] T8753.175
[GRAPHIC] [TIFF OMITTED] T8753.176
[GRAPHIC] [TIFF OMITTED] T8753.177
[GRAPHIC] [TIFF OMITTED] T8753.178
[GRAPHIC] [TIFF OMITTED] T8753.179
[GRAPHIC] [TIFF OMITTED] T8753.180
[GRAPHIC] [TIFF OMITTED] T8753.181
[GRAPHIC] [TIFF OMITTED] T8753.182
[GRAPHIC] [TIFF OMITTED] T8753.183
[GRAPHIC] [TIFF OMITTED] T8753.184
<all>