<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24121.wais]
VOTING RIGHTS ACT:
THE CONTINUING NEED FOR SECTION 5
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
OCTOBER 25, 2005
__________
Serial No. 109-75
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
24-121 PDF WASHINGTON : 2006
_____________________________________________________________________________
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin CHRIS VAN HOLLEN, Maryland
STEVE KING, Iowa
TOM FEENEY, Florida
Paul B. Taylor, Chief Counsel
E. Stewart Jeffries, Counsel
Hilary Funk, Counsel
Kimberly Betz, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
----------
OCTOBER 25, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress from the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress from
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 2
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Member, Subcommittee on the
Constitution................................................... 2
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina........................................ 3
WITNESSES
Mr. Laughlin McDonald, Director, ACLU Voting Rights Panel
Oral Testimony................................................. 4
Prepared Statement............................................. 7
Mr. Robert Hunter, Voting Rights Litigator, Hunter, Higgins,
Miles, Elam and Benjamin, P.L.L.C.
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Mr. Ronald Keith Gaddie, Professor of Political Science, The
University of Oklahoma
Oral Testimony................................................. 29
Prepared Statement............................................. 31
Mr. Richard Engstrom, Professor, The University of New Orleans
Oral Testimony................................................. 49
Prepared Statement............................................. 51
APPENDIX
Material Submitted for the Hearing Record
Statement of the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan and Member, Subcommittee on
the Constitution............................................... 99
Statement of the Honorable Linda T. Sanchez, a Representative in
Congress from the State of California.......................... 99
Appendix to the Statement of Laughlin McDonald: ``The Need to
Expand the Coverage of Section 5 of the Voting Rights Act in
Indian Country''............................................... 101
Appendix to the Statement of Laughlin McDonald: ``Voting Rights
Act in Indian Country: South Dakota, A Case Study'' American
Indian Law Review, 29 Am. Indian L. Rev. 43.................... 149
Appendix to the Statement of Robert Hunter: ``Racial
Gerrymandering and the Voting Rights Act in North Carolina.''
Campbell Law Review, 9 Campbell L. Rev. 255.................... 166
Insterted into the Record by Chairman Chbot on October 26, 2005:
Beer v. United States (425 U.S. 130, 96 S.Ct. 1357)............ 204
VOTING RIGHTS ACT:
THE CONTINUING NEED FOR SECTION 5
----------
TUESDAY, OCTOBER 25, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:00 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chair of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. I want to
thank everyone for being here this afternoon. This is the
Subcommittee on the Constitution and it is the fourth in a
series of hearings this Committee has been holding examining
the impact and the effectiveness of the Voting Rights Act over
recent years. This afternoon, the Committee will continue its
examination of section 5 and the preclearance requirements it
imposes on covered jurisdictions.
Again, I would like to thank all of my colleagues for
taking the time to give our oversight responsibilities the time
and effort that they deserve.
I might note that we did have two additional hearings
scheduled for Thursday. It has come to my attention as a result
of some scheduling conflicts and changes and difficulties, that
those two hearings will not occur on Thursday and will in all
likelihood be rescheduled for next week. And we will give
further information as that becomes available.
This afternoon we will focus on the Supreme Court's
interpretation of section 5's preclearance requirements and the
retrogressive standard for whether a change submitted by a
covered jurisdiction, quote, ``has the purpose or effect of
denying or abridging a citizen's right to vote on account of
race, color, or language minority status,'' unquote.
In 1976, the Supreme Court in the case of Beer v. United
States set forth the standard for evaluating section 5
preclearance submissions. Recognizing that Congress intended
section 5 to ensure that the ability of minority groups to
elect candidates of choice and to participate in the political
process did not backslide, the Court held that only those
changes that would not lead to a retrogression in the
positioning of racial minorities with respect to their
effective exercise of the electoral franchise could be
precleared.
Subsequent decisions and enforcement actions conducted by
the Department of Justice over the years have further defined
retrogression, in the context of section 5, as quote, ``a
change in election law that results in an adverse effect on
opportunities for a racial group to participate in the
political process,'' unquote. Such had been the standard until
2003, when the Supreme Court in Georgia v. Ashcroft deviated
from this approach.
The Georgia decision, which we will discuss later in the
week, is unclear when defining what changes are retrogressive
under section 5. It is clear that minority voters have
progressed in the political process under the protection of the
Voting Rights Act. However, Congress, in enacting section 5,
intended not only to enable minority voters to register and
cast ballots but to see their candidates of choice elected.
During this hearing we will hear from our witnesses how
minorities have made significant strides in the political
process but yet how certain election or voting mechanisms that
are submitted for preclearance under section 5 may dilute the
full weight of the minority vote such to keep minorities from
experiencing the full guarantee of the 15th amendment.
And, again, we look very much forward to hearing our
distinguished panel this afternoon. I will yield back the
balance of my time and I will at this point recognize the
gentleman from New York, the Ranking Member of this
Subcommittee, Mr. Nadler, for the purpose of making an opening
statement.
Mr. Nadler. Thank you. I will be very brief in the opening
statement. This is a continuation really of the hearing we
started this morning on the continuing necessity for the
section 5 preclearance requirements. We have heard this morning
about some of the necessity. I assume we'll hear more from our
witnesses now. And I look forward to hearing from those
witnesses and to hearing a discussion of the effects on section
5 on some of these recent Supreme Court decisions and whether
any action should be taken by----
Mr. Conyers. Would the gentleman yield to me?
Mr. Nadler. Yes, I will.
Mr. Conyers. And that will save me from trying to get 5
minutes. I wanted to associate myself with the remarks of the
Chairman of the Subcommittee. I think he described this, as you
did, quite appropriately.
And I also wanted to thank the Chairman and you for
observing the moment of silence for the late Rosa Louise Parks,
our Civil Rights leader, the mother of the Civil Rights
movement, with whom I had the honor of being associated with
for several decades.
And then I would put my statement in the record and thank
the gentlemen for yielding to me.
Mr. Nadler. I thank the gentlemen. And now I will simply
conclude by saying I look forward to hearing the testimony of
the witnesses. And I yield back.
Mr. Chabot. Thank you. And, without objection, the
statement will be entered into the record.
Mr. Chabot. Do any other Members of the Committee wish to
make an opening statement this afternoon? If not, we will then
proceed to the introduction of our witnesses. And again we want
to thank all of you for being here this afternoon. And I might
note that, without objection, all Members will have 5
legislative days to submit additional materials for the record.
Our first witness, will be Mr. Laughlin McDonald. Mr.
McDonald has a long and distinguished career in voting rights
litigation. He is the Director of the ACLU's Voting Rights
Project, and in this capacity Mr. McDonald has played a leading
role in eradicating discriminatory election practices since the
original Voting Rights Act was passed back in 1965.
Mr. McDonald also serves as the Executive Director of the
Southern Regional Office of the ACLU, a position he has held
since 1972. While at the Southern Regional Office, Mr. McDonald
has won some of the most precedent-setting cases, including
those that secured the principle of one person/one vote, ended
the use of discriminatory at-large elections, and establishing
the right of women to serve on juries.
Mr. McDonald's prior employment included membership on the
faculty of the University of North Carolina. And he also
practiced in a private law practice. We are honored to have you
here with us this afternoon, Mr. McDonald.
Our second witness will be Mr. Robert Hunter, Junior. Mr.
Hunter is a former chairman of the North Carolina Board of
Elections and a partner in the law firm of Hunter, Higgins,
Miles, Elam and Benjamin located in Greensboro, North Carolina.
Mr. Hunter has litigated a number of redistricting and
voting rights cases, including serving as the original attorney
for the intervenors in one of the landmark section 2 voting
rights cases, Gingles v. Thornburg. We welcome you here, Mr.
Hunter.
And I might like to very briefly recognize one of the other
chairmen of the Judiciary Subcommittees, one of the strongest
Members of the Judiciary Committee, Mr. Howard Coble. And
Howard, I know that you have a long and distinguished
association with Mr. Hunter. I don't know if you want to
mention anything relative to that.
Mr. Coble. Thank you, Mr. Chairman. And I will be very
brief. What I am about to say may diminish Mr. Hunter's stature
in the eyes of some of my colleagues. It was probably he, more
than any other person, who convinced me to become a
congressional candidate back in the dark ages. But it is good
to be here, Mr. Chairman.
Mr. Chabot. Without objection, the record will note the
groans from the dias, all in good spirit I am sure.
Thank you, Mr. Chairman. We appreciate your kind words.
Our third witness will be Professor Ronald Keith Gaddie.
Professor Gaddie is currently a professor of political science
at the University of Oklahoma where he teaches research
methods, southern politics, and electoral politics. In addition
to teaching, Professor Gaddie serves as a litigation consultant
in voting rights and redistricting cases, including those in
Alabama, Georgia, Illinois, New Mexico, Oklahoma, South Dakota,
Texas, Virginia, and Wisconsin. Professor Gaddie has written
extensively on political reform, Southern politics, and voting.
He is in the process of working on two books. And we welcome
you here, Professor Gaddie.
Our fourth and final witness will be Dr. Richard Engstrom.
Dr. Engstrom is a noted speaker in election systems and
minority rights and has testified extensively in voting rights
cases since the 1970's. He currently is a resource professor of
political science and endowed professor of African Studies at
the University of New Orleans. As I said to the former Mayor
Marc Morial when he testified before this Committee last week,
our thoughts and prayers are with you and the other citizens of
New Orleans in the trying times that you have had of late. And
we thank you very much for being here and testifying today.
As I said, we have a very distinguished panel here this
afternoon, and as I explained to the previous panel this
morning, we have a lighting system here that helps us keep on
track relative to how long you testify. We have what is called
the 5-minute rule and the clocks will keep you on time there.
It will be on for 4 minutes green. It will turn to yellow, let
you know you have 1 minute to wrap up. When it goes red, that
means your 5 minutes is up. We won't gavel you down
immediately, but we would ask you to keep within that 5-minute
time frame as much as possible.
It is also the practice of the Committee to swear in all
witnesses appearing before it, so if you would not mind, if you
could all please stand and raise your right hands.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the affirmative
and we'll now hear from our first witness. Mr. McDonald you're
now recognized for 5 minutes.
TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, ACLU VOTING RIGHTS
PANEL
Mr. McDonald. Well, thank you very much, Mr. Chairman, for
inviting me to appear and share my thoughts on the need to
continue section 5 of the Voting Rights Act. As you might
imagine, I have attended a number of conferences recently on
the issue of extension of the Voting Rights Act, and I have
been struck with the fact that invariably someone will say we
don't need section 5 anymore because Bull Connor is dead. Well
I've always found that to be simple-minded in the extreme. Bull
Connor is dead, but so is Thomas Jefferson, so is George
Washington, so is my own grandfather, so is William Tecumseh
Sherman, so is William Shakespeare, and the list goes on and
on. Simply because all of these people are dead, it does not
mean that they are erased from memory and history, that their
legacies no longer exist, that they do not influence the way we
think and act. The past continues to inform the present.
There is, in fact, abundant modern-day evidence showing
that section 5 is still needed in this country and that the
right to vote is still in jeopardy. And one of those examples
involves Charleston County, South Carolina, which prides itself
on its aristocratic traditions and its civility. But in a
2004--not 1904--but in a 2004 opinion, the 4th Circuit Court of
Appeals unanimously affirmed a decision in the District Court
invalidating Charleston County's at-large elections on the
grounds that evidence presented by the parties supports the
district court's conclusion that voting in Charleston County
council elections is severely and characteristically polarized
along racial lines. And it noted the rarity with which Blacks
were elected to office of the county council, and that
disproportionately few minorities had ever won any of the at-
large elections in Charleston County.
And the factors contributing to minority vote dilution
found by the District Court included--and these are quotes--
``the ongoing racial separation that exists, socially,
economically, religiously, in housing, in business patterns,
which makes it especially difficult for African-Americans to
get votes from non-African-American voters.''
And this is another quote: ``Significant evidence of
intimidation and harassment of Blacks at the polls during the
1980's and 1990's and even as late as the 2000 general
elections.'' And the court also found that there was evidence
of subtle or overt racial appeals in campaigns. And one of the
recurring examples of that was that White candidates would take
out photographs, which they would run in the newspaper of their
Black opponents, and they would darken their features to call
attention to their race.
After that decision was handed down by the district court
invalidating that at-large system, the Legislature enacted the
identical method of elections for the County Board of Education
now, despite the fact that it had been held to dilute minority
strength in violation of section 2. They, of course, had to
submit that for preclearance to the Department of Justice, and
the Department of Justice concluded that the proposed change
would significantly impair the present ability of minority
voters to elect candidates of choice to the school board, and
they rejected it.
I would also call to the panel's attention a decision of a
three-judge court that was issued in 2002 which involved
statewide redistricting. There was a deadlock between the
Governor and the Legislature. They couldn't enact a plan. There
were several lawsuits filed asking the court to draw a plan.
The Court held a lengthy hearing and drew its own plan. And
here is one of the things the Court found. And the judges who
were on that panel were, all three, South Carolinians--Judge
William Traxler, Judge Matthew Perry, and Judge Joe Anderson.
And they noted--and this is a quote: ``The disturbing fact of
racially polarized voting has seen little change in the last
decade. Voting in South Carolina continues to be racially
polarized to a very high degree in all regions of the State.
And in both primary and general elections statewide, Black
citizens are a highly politically cohesive group, and Whites
engage in significant White bloc voting.''
Let me jump now to Indian country. There are hundreds of
examples I could give. The time dictates that I only give one
or two. As a result of the 1975 amendments of the Voting Rights
Act, two counties in South Dakota, Todd and Shannon, which are
home to the Pineridge and Rosebud Indian reservations, a large
Sioux Indian population, became covered by section 5. Well,
William Janklow at that time was the Attorney General of South
Dakota. And he was outraged over the extension of section 5 to
his State. In fact, he wrote a formal opinion to the South
Dakota Secretary of State. He derided the 1975 law as a,
``facial absurdity.'' He was confident that it would be
declared unconstitutional by the courts; but in the meantime he
instructed the Secretary of State not to comply with section 5,
and the Secretary of State in fact did not. There were more
than 600 voting changes that were enacted and were not
precleared under section 5.
Which, can I just close by saying----
Mr. Chabot. If you could summarize.
Mr. McDonald. --that the other important reason we need
section 5 is the deterrent effects. It is applied almost
universally by the courts when they implement court-ordered
plans. And in fact we are doing a number of reports. I have
written a piece about voting rights in South Dakota which is in
the American Indian Law Journal. I have also written a chapter
for a book about all the litigation in Indian country that I
could possibly find.
And our office, which has done more than 300 lawsuits in
the South and elsewhere since 1982, and we are preparing a
report for that I want to share that with the Committee,
because these three examples I have given you are the
proverbial tip of the iceberg.
Mr. Chabot. If you would like to, you can refer those to
the record, the actual documents themselves, and we will accept
those into the record. Thank you very much Mr. McDonald.
[The prepared statement of Mr. McDonald follows:]
Prepared Statement of Laughlin McDonald
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Mr. Chabot. Mr. Hunter you're recognized for 5 minutes.
TESTIMONY OF ROBERT HUNTER, VOTING RIGHTS LITIGATOR, HUNTER,
HIGGINS, MILES, ELAM AND BENJAMIN, P.L.L.C.
Mr. Hunter. Thank you. Thank you, Mr. Chairman, Mr. Nadler,
Members of the Committee, thank you and the Subcommittee for
inviting me to speak on the topic of reauthorization of section
5 of the Voting Rights Act.
Since 1982 I have been involved in litigation in North
Carolina, South Carolina, Virginia, and Florida in
redistricting and election law issues implementing the Voting
Rights Act. I believe that my comments can be made most useful
in the context of the most recent redistricting efforts in the
Southeast, particularly in North and South Carolina.
In the 2000 North Carolina redistricting cycle, I served as
counsel to the North Carolina Republican Party plaintiffs in
challenging the State legislative redistricting plan in State
court. In the 2000 cycle in South Carolina, I served as counsel
to the Senate Republican defendants in a suit which drafted a
court-ordered plan for South Carolina elections.
Now, the purpose of the hearing today is to talk about
proof of discriminatory purpose or effect. In my view, the
proof of discriminatory purpose or effect was easily understood
by most voting rights practitioners in this field during the
1980's and 1990's. However, the meaning of these terms has been
modified by thee recent Supreme Court decisions: State of
Georgia v. Ashcroft; Reno v. Bossier Parish School Board I; and
Bossier Parish School Board II.
As a practical matter, the effect of most of these Supreme
Court decisions was the elimination of section 2 analysis by
the Attorney General and to eviscerate the ``intent'' or
``purpose'' prong of the Beer standard. The majority of the
Supreme Court substituted an effects test as the sole measure
of retrogression. This change has been incorporated in the
Department of Justice regulations implementing the act, CFR
51.54 ``discriminatory effect.''
In reauthorizing section 5, it is evident to me that most,
if not all, of the minority districts which have been drafted
in redistricting plans throughout the South, are a result of
the preventive effects of section 5 and the desire on the part
of jurisdictions to avoid section 2 litigation. However, it is
also clear to me, as shown both in North and South Carolina
litigations this year, that political elements within the South
would seek to retrogress or backslide in their obligations to
be racially fair in making redistricting decisions in the
absence of reauthorization of section 5.
The strongest example of this is in the Colleton County
case, which Laughlin mentioned earlier, in South Carolina where
the Governor vetoed redistricting plans and urged in lieu of
effective minority district concentrations, weakened or
bleached districts with minority voting age populations well
below 45 percent in many areas. His expert witnesses urged
these positions on the three-judge panel which properly
rejected this idea.
However, the Ashcroft case in Georgia, the case in
Virginia, and the case in North Carolina offer equally vivid
examples of this flawed idea.
The focus of the congressional inquiry should be on the
community whose voting strength is being given legal protection
from purposeful or effective discrimination.
Where there is a systematic history of racially polarized
voting and where without legal protection a minority community
has not historically been able to consistently achieve
constitutional parity with other racial groups, the group
should be able to elect a candidate of its choice. Sharing that
choice with non-group members is not equal opportunity but
lessened opportunity.
The focus on legislative action after redistricting suffers
from this same point. It does little good in my opinion to ask
questions about what legislative power a particular incumbent
may get after an election because that focus is on an
individual incumbent and not on the community affected.
I realize this Committee faces a factual predicate for
renewal of section 5 that its predecessors didn't face. I hope
that you will examine the list of cases that have been brought
successfully under section 2 in the South. But equally
important is for this Committee to catalog those statutes which
would spring to life if retrogression is not reauthorized.
In lieu of the Supreme Court approach as indicated in
Bossier I and II, I hope the Committee would consider placing
the Garza v. County of Los Angeles standard as a desirable
purpose approach, which I do not believe would involve itself
in the issues raised in Ashcroft and Bossier I and Bossier II.
If that were the legal standard, then I think that we would be
able to understand in a clear and sufficient way the
``purpose'' prong that Congress originally intended section 5
to implement.
I see that my time is over. Thank you very much.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Hunter follows:]
Prepared Statement of Robert Hunter
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Mr. Chabot. Mr. Gaddie you're recognized for 5 minutes.
TESTIMONY OF RONALD KEITH GADDIE, PROFESSOR OF POLITICAL
SCIENCE, THE UNIVERSITY OF OKLAHOMA
Mr. Gaddie. Mr. Chairman, Representative Nadler, and
distinguished Committee Members, my thanks for the invitation
to appear before this panel. Dramatic changes in American
politics have been witnessed in 40 years. Minority voter
participation has increased substantially. And descriptive
representation of racial and ethnic minorities has never been
so widespread. Southern Blacks register and vote at rates as
high or higher than Black voters and White voters in much of
the Nation. There is a two-party system in the South which
fosters Black political empowerment and office holding.
However, this empowerment is realized as the party of choice
for most African-Americans, the Democratic Party, has been
relegated to minority status in legislatures of five section 5
States in the South.
My colleague, Charles Bullock of the University of Georgia,
and I are completing a study on the progress of minority voter
participation in the jurisdictions covered by section 5 of the
Voting Rights Act, supported by the American Enterprise
Institute. As to our analysis, we have now completed initial
analysis and are completing the write-up on three States:
Georgia, Louisiana and South Carolina.
Georgia shows unprecedented progress in voting rights for
African-Americans, significant gains in voter participation,
voter turnout, and the election of minority candidates when
candidates of choice are evident. Black and White Democratic
candidates are generally not distinguished by Caucasian voters.
African-American candidates win statewide elections, and the
Congressional delegation is actually better than proportional
to the Black population as of the last Congressional election.
In South Carolina, significant progress has been made in
terms of participation and in the election of Black candidates
to legislative office. Black candidates have not enjoyed
success statewide, though this lack of success is more a
function of the fall of the South Carolina Democratic Party
than of the race of the candidate per se.
Louisiana exhibits evidence of Black progress and voter
participation through registration and voting. Black
legislators are elected to the Congress and to the State
legislature, though not in proportion to their numbers.
Louisiana voting is such that the Black candidates running
statewide have failed in their efforts. Racial polarization is
insufficient to deny the election of Democrats in general who
are very successful in statewide elections, but the success has
not been obtained by African-Americans running statewide in the
Pelican State.
How does this bear on section 5? Let me advance some
questions to ponder. These observations come from an empirical
social scientist, not a legal scholar, and therefore should be
taken as such.
One, after two generations of implementation, are the goals
of the Voting Rights Act achieved? The answer is variable by
State. But clearly Georgia exhibits progress that makes one
wonder why the State continues to be covered by section 5.
Other States also show dramatic and sustained progress, though
Georgia is the most progressed of the original section 5
States.
Two, has section 5 been twisted or altered by politics into
a tool with which to advance party causes? Political motives
for the implementation of the Voting Rights Act are evident in
the record of behavior of national and State actors in the
implementation of section 5 and in the redistricting process.
Three, 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. The political circumstances
that collided in the early 1990's led to illegal maps that were
as much a product of the goals of parties rather than a pursuit
of racial fairness in the implementation of the 15th amendment.
Four, has the standard for satisfying retrogression been
altered by practice in the interpretation of the Supreme Court
to possibly result in unintended consequences? Again the answer
is yes. In the recent controversial Texas congressional
redistricting, this very problem appeared in arguments advanced
by both political science experts and lawyers, though the
argument that derives from this problematic interpretation was
rejected by the presiding Federal judge; namely, the status of
coalition districts with regard to retrogression or protection
under the Voting Rights Act.
Five, and finally, do the circumstances of the empirical
test advanced by the Court wherein minority candidates do not
require minority-majority districts to prevail and minority
political leaders endorse the use of coalition districts to,
quote, pull, haul and trade in politics also indicate an
environment where section 5 coverage is not warranted? Possibly
yes. If we look at Georgia, where minority voters register and
turn out at a rate higher than Whites, where Black electoral
success is evident at all levels of government, where expert
testimonies show that a minority candidate can succeed in
nonminority districts, we see a State where the need for
preclearance has diminished or, if not, has passed. Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Gaddie follows:]
Prepared Statement of Ronald Keith Gaddie
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Mr. Chabot. Mr. Engstrom, you are our final witness and
you're recognized for 5 minutes.
TESTIMONY OF RICHARD ENGSTROM, PROFESSOR, THE UNIVERSITY OF NEW
ORLEANS
Mr. Engstrom. Thank you. I also appreciate very much, Mr.
Chairman and Members of the distinguished Committee, this
opportunity to appear before you today and discuss a future of
the preclearance requirement of section 5 of the Voting Rights
Act.
I have some prepared remarks. I am going to give a quick
summary. But what I would like to point out right away is we
have heard a lot of statistics already, the statistics about
the increase in the African-American vote in the American
South, and it can apply to other protected minorities
elsewhere, and the subsequent increase in descriptive
representation. One thing I want to point out right away,
however, it is not a simple relationship. You increase minority
votes, you increase minority representation, because those
minority votes have to be channeled through an election system,
and the increase in representation didn't--did lag behind the
increase in minority votes largely because it took time for a
number of majority-minority districts to be created.
And the reason we have the descriptive representation is
not just because of the increased Black vote, but also the
increased number of majority-minority or near majority-minority
districts that have been created to allow that vote to be
converted into descriptive representation.
But what I want to point out is those districts are crucial
all right, and the reason those districts are crucial is
because racially polarized voting continues to persist in the
American South and certainly no doubt in other jurisdictions
across the country.
The Voting Rights Act was--the reason why the Voting Rights
Act was renewed, or at least one reason it was renewed in 1970,
1975, and again in 1982, was because racially polarized voting
continued to exist. And unfortunately we are--23 years later,
racially polarized voting continues to exist in the American
South as well today.
I am going to testify about some of my work as a
consultant, or my testimony will be informed by my work as a
consultant in redistricting process for State legislators, for
individual members working for political parties, whatever, and
alsoas an expert witness. That work has covered both major
political parties. That work has also covered--and plaintiffs
and defendants in voting rights litigation.
One thing I want to do is to document, at least in one
State as an example, and only as an example, the existence of
racially polarized voting today. The State is going to be the
State of Louisiana, my home State. I didn't choose Louisiana
because it is my home State, and I didn't choose Louisiana
because it is in any way unique in terms of the existence of
racially polarized voting. But what I want to do is look at
data. I chose Louisiana because there is an extensive amount of
data concerning a large number of elections, over a large
number of different offices, that have been analyzed for the
purpose of determining the extent to which racially polarized
voting was present in those elections.
That work is my own work. It was done as an expert witness
in the case called Louisiana House of Representatives v.
Ashcroft, a section 5 case. This case did not go to trial. The
State did--it was settled when changes were made in the map
that were favorable to minorities in Louisiana. But I want to
use this as a demonstration.
In the tables that are part of my written testimony you
will see lots of numbers. And basically, let me say quickly
because of time, I have used three different procedures, all
three commonly used in the social sciences. I have used all the
procedures I know to study past elections and look at the
extent to which race--racial divisions may be present.
These are 90 elections. They are all biracial elections.
These are all elections in which there is at least a Black
candidate and a White candidate or at least a non-Black
candidate competing. Those types of elections are generally
considered the most probative.
I can see my time is lapsing so let me go right to the
results. And these results I can summarize, and the summary is
on page 9 of my report, but out of these 90 elections, 78, that
is 86.7 percent, showed racial divisions in candidate
preferences, and normally to quite high levels, all right, not
just some preference, but extraordinarily strong preferences of
one group favoring candidates different from the other.
So that is 86.7 percent. The time frame for this study was
1991 to 2002, the entire time in which we were existing under
the previous map in Louisiana. And time frame made no
difference under the extent to which there was racially
polarized voting. The office made no difference. It didn't
matter if we are talking about State Rep, State Senator,
Governor, Mayor, Register of Conveyances, Recorder of
Mortgages, or Traffic Court Judge. Racially polarized voting
was there across basically all the offices that were contested.
So this is designed to give you an idea of how intense and
persistent and prevalent racially polarized voting may be in
the South.
I want to wrap up quickly by saying, again, Louisiana is
not unique. I can point to some court cases, post 2000
representational districting cases. South Carolina has been
mentioned by the court, and South Carolina Federal courts said
voting in South Carolina continues to be racially polarized to
a very high degree. Courts in Texas found racially polarized
voting throughout the State between Latinos and non-Latinos. In
the Florida case they found a substantial degree of racially
polarized voting in South Florida and Northeast Florida. And
even the Georgia case, the case that you've heard referenced
several times already, please let me note that in Georgia the
Federal district court did find that in the three State Senate
districts at issue in the preclearance litigation, there was,
quote, highly racially polarized voting in the proposed
districts. And that was a conclusion that was not disturbed by
the U.S. Supreme Court when it reviewed the case. The Court
said the district court needed to expand its inquiry, but in no
way touched its findings on racially polarized voting.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Engstrom follows:]
Prepared Statement of Richard L. Engstrom
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Mr. Chabot. The Members of the Committee will now have 5
minutes to ask questions, and I yield myself 5 minutes for that
purpose. And this question I would address to each of the panel
members, and we will begin with you, Mr. McDonald.
How effective is the current retrogression standard to
protect and prevent against minority backsliding?
Mr. McDonald. Well, there is no question that there is some
deterrent effect. The State of Georgia, for example, just this
year redistricted its congressional delegation. And before it
did so, it adopted a resolution saying that it must comply with
section 5. And the plan that it ultimately adopted didn't
change the Black voting age population in the two districts
that were majority Black and in the two that were majority--
barely majority White. They did not affect or reduce at all the
Black voting age population, so we know there is a deterrent
effect.
The City of Albany, Georgia, after the 2000 census enacted
a redistricting plan for the city. And it was submitted for
preclearance. The Department of Justice objected on the grounds
that there was evidence that it was animated by purposeful
discrimination to limit the opportunities of minorities. So it
continues to have an actual impact and a deterrent effect. But
I think it is also the case that section 5 has been weakened by
a couple of recent Supreme Court decisions, what is called
Bossier II, which involves an objection on the purpose grounds
can only be made if something has a retrogressive purpose.
I just remember in 1982 the State of Georgia enacted a plan
with a discriminatory purpose, but it was not retrogressive
because they actually increased the Black population in
district 5. Julian Bond was in the Senate and submitted a plan
creating like a 69 percent Black district. It got to the House.
Joe McWilson--I hate to speak in the language that he uses--but
the N word was part of his every day vocabulary. He told his
colleagues on the House side, quote, ``I am not going to draw
any nigger districts,'' end quote.
So the plan that they ended up with was not retrogressive
if it didn't make Blacks worse off because it slightly
increased the Black population based on the benchmark plan; but
if Bossier II had been in effect, arguably that would not have
been objectionable because the purpose was not to make Blacks
worse off. It was actually--their percent in the Fifth District
was actually increased. I think that's an absurd result. And I
really think that the Congress ought to take very seriously the
problems of Bossier II.
Mr. Chabot. Thank you. Mr. Hunter.
Mr. Hunter. I would like to say I agree with Laughlin about
the effects of the most recent Supreme Court decisions. I know
that if I were to compare the 1990 review of, say, the North
Carolina or South Carolina or Florida section 5 preclearance
review that was--given the legislative plans at that time--with
the review that the Justice Department gave the similar plans
in 2000, the review was far more rigorous and vigorous in the
1990's than it is today.
I think that is a direct result of these three cases and
the challenge is on largely federalism grounds I think, to the
implementation of section 5. And I think it is important to
remember that the 14th and 15th amendments, which are the
enforcement powers, and the Republican form of government
section of the Constitution, are really antifederalism-type
implementations. There are amendments to federalism to allow
national power to work its will.
So I certainly agree that where you have an agreement among
incumbents to keep emerging minority districts or to prevent
new districts from being drawn, then I think you have a problem
of intentional discrimination without a retrogressive effect,
not just, as Judge Scalia says, an incompetent retrogressor.
Mr. Chabot. Thank you. My time is running out. Mr. Gaddie.
Mr. Gaddie. Mr. Chairman, I would agree with my colleagues
that the most recent decisions have altered or potentially
altered the effectiveness of section 5 and section 5 has been
critical to advancing minority representation. I also agree
with my colleague, Dr. Engstrom, that without those new
minority-majority districts enacted in the 1990's, you would
not have seen those initial advancements in minority
representation.
That being said, to the current state of section 5 as a
social scientist, I have three concerns with regard to its
current status.
One is how do we describe retrogression. If we consider
coalition districts in the process of assessing retrogression
or non-retrogression, 10 years from now we will have to ask the
question, how do we count those coalition districts in creating
the new baseline? These are not minority-majority districts,
but coalition districts that might be counted toward
establishing non-retrogression. How do we treat them down the
road?
This leads to the question of how do we describe
representation. Is it sufficient to have access to the process
to coalesce, to elect a member from a party? Or is what matters
the election of the candidate of choice from the community from
which those votes are coming? Where does the obligation to
pull, haul, and trade get balanced against the guarantees of
access and descriptive representation in the process?
For social scientists, we have a tough challenge which is,
how do we weigh a coalition district? If we were to apply the
Ashcroft standard in 1991, we might not have created the new
majority-minority districts that we did. So this standard has
changed the measure of retrogression and the ability to assess
it.
Mr. Chabot. Thank you. My time has expired, but if you
could answer briefly Mr. Engstrom.
Mr. Engstrom. I think the only thing I would add is to
stress the deterrent effect. I think the act has been
effective. What the Georgia v. Ashcroft situation will be is
yet to be played out. But I think when we look at how effective
it has been, it has been effective. I don't think we can just
count objections from the Justice Department. I do think we
have to take into account the deterrent effect of the
preclearance provision.
And I can say as a consultant who has had a role in drawing
maps and the process, that the section 5 looms seriously over
political cartographers and decision makers when it comes to
plans. And I can testify that I have seen districts changed in
order to avoid retrogression and gain preclearance. Districts
that had already been agreed upon in effect from the political
end were changed in order to satisfy the law.
Mr. Chabot. If you could provide those to the Committee, we
would like to have that; any information, papers, reports,
graphs, anything you might have. If you can provide those, not
necessarily right now, but----
Mr. Engstrom. The consulting work often is, I don't know
that I am privileged--I can say the results I cannot----
Mr. Chabot. To the extent that you're able to provide it,
we would appreciate it. If you can't, we understand.
Mr. Chabot. Thank you very much. My time has expired.
The gentleman from New York, Mr. Nadler, has 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman. At this time, with
your permission, I would like to defer my questions and yield--
not yield, but ask that the distinguished Ranking Member of the
full Committee Mr. Conyers, has questions now.
Mr. Chabot. Absolutely. We will take your time back.
Mr. Nadler. I take my time back.
Mr. Chabot. We will give Mr. Conyers your 5 minutes at this
time.
Mr. Conyers. Thank you, Mr. Chairman, and thank you, Mr.
Nadler. We really need a lot more than 5 minutes each, don't
we?
We have got so many things floating around in this panel
and we have suddenly, after a lot of wonderful rhetoric in some
other panels, we are down to some very serious questions.
Namely, does Georgia v. Ashcroft need remedying in this new
renewal and section 5 continuation? I hope everyone agrees with
me that Bossier certainly does, and everyone here seems to
support the reauthorization. But the question around section 5
is that should influence districts not be counted or not?
Should they be counted or not? And that is where we get into
some very difficult issues.
Do not be dismayed by the fact that times are changing and
that the issues and the way we remedy them are changed, too.
Should African-American influence be allowed to, as it
were, unpack some of these districts where we used to need from
65 to 80 percent to elect an African-American, when now
frequently considerably less is necessary.
So this is where we come into this traditional issue. And I
would like Mr. McDonald and Mr. Engstrom to quickly put your
oar into those sets of issues that are floating around on the
top. And then I would very much, very much like to hear from
Mr. Hunter, Attorney Hunter, and Mr. Gaddie.
Mr. McDonald. Mr. Conyers, I think that you don't go astray
if you keep your eye on the basic right that the Voting Rights
Act protects, and that is the equal right of covered minorities
to participate in the political process and elect candidates of
their choice. And I don't think that it serves the ultimate
purpose of the Voting Rights Act to say that that standard is
met if you can simply influence the election of candidates.
I think one of the great ironies of the influence theory is
that the whole Shaw-Miller cases were brought by White voters
who were placed in White-influence districts. They were the
minority White district, but they were 45, 46 percent of the
population, and they could influence the election of
candidates. And yet those White voters convinced the U.S.
Supreme Court that putting them in White-influenced districts
violated the 14th amendment. But yet people say, oh, it is okay
for Black voters to be in Black-influence districts. Again, I
keep my eye on what the fundamental right is.
Nobody supports packing, believe me. And people constantly
talk about the Georgia v. Ashcroft decision and I think give
the mistaken impression that the three Senate districts at
issue, they were majority White districts, and that somehow the
Black Caucus supported those districts. That is not factually
correct. They were three majority Black districts, and I have
talked to--if I can resort to hearsay--but I have talked to
Tyrone Brooks who is the Chair of the Georgia Association of
Black Elected Officials, and others, and they said they would
never have supported a plan that abolished the majority Black
districts. These were still majority Black districts, but they
thought that nonetheless that Black voters still had the chance
to elect candidates of choice.
Mr. Conyers. Mr. Engstrom.
Mr. Engstrom. Let me say just quickly at the beginning, as
I said earlier, we have to see what Georgia v. Ashcroft--how it
plays out. We don't have a single court case that applies that.
The Georgia case, when it went back on remand, Georgia changed
the districts that were at issue. They didn't make a coalition
or an influenced district argument. They got precleared simply
in a previous way by increasing the African-American percentage
in those three districts, and the Justices said we are
satisfied.
As to influenced districts, a couple quick things. One, I
am disturbed by the fact, and I think Laughlin has pointed out,
that it is a racially selective concept. This was clear vividly
in Hayes v. Louisiana, one of the 1990 cases. But the Court in
effect said any district with over 25, 30, percent basically
Black voting-age population was a Black-influenced district.
But yet the two Representatives that had districts that were
about 55 percent were basically considered--these would be
racial partisans. It is like it is a racially selective
application that goes into one direction.
I also think the concept--and this is true in Georgia v.
Ashcroft--is incredibly simplistic at this point in time. It
just says in Georgia v. Ashcroft sometimes it is 20 percent,
sometimes it is 25 percent, sometimes it is 30 percent. But in
effect, the Court used those numbers and there was nothing to
back them up. It is not just how many minorities; also, what
are the other voters in that district like? Are they going to
be available there for coalition politics or what?
I can note one of the disturbing things in the Georgia case
when the case was on remand. The State of Georgia identified 17
districts that were influenced districts, quote unquote, based
on what they said was the O'Connor standard. But it was 25
percent Black voting-age population.
After that election, when the legislature met, 7--over 40
percent of those districts--7 of the 17 were represented by
White Republicans. Now, three of those districts, influenced
districts, actually resulted in the election of Republicans.
Four more resulted in the election of White Democrats who
subsequently changed party.
That is how influenced the minority was in their district,
to become Republicans and allow the Republican Party to
organize the Chamber and control it.
Two of those--two of those districts were walkovers, no
contest, at least in the general election. Two others were
districts in which the White Democrat got over 90 percent of
the African-American vote and less than a majority of the White
vote, or the non-African-American vote. Yet despite in effect
Blacks being pivotal to their election, they switched parties
by the time the legislature was in session.
I don't think--we don't have a good handle on an influence
district. We certainly can't go forward and say it is just some
specific percentage of Blacks present in a district. We have to
be far more serious about this concept than we have been to
this point in time.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. Feeney. I will, if I can back up on that, because I
really think this is the gist of the question that is before
the panel here today. We went from earlier this morning where
Mr. Blum told us at first that there was no more Jim Crow-era
segregationist intent anywhere in Georgia, and modified that to
say no elected official with control over any process had that
intent, which I still find remarkable. And we still have a huge
difference between Mr. Gaddie and Mr. Blum on the one hand, the
first witnesses to tell us, because we have got increased
minority registration, participation, and election of
candidates, that section 5 may no longer be necessary anywhere
in the country, versus all the other testimony we have, both
factual and anecdotal, which tends to go very much averse to
that and just say that the techniques for purpose or effects
that discriminate against participation to elect candidates of
your choice have just become different, whether it is at-large
voting, whether it is annexation, whether it is redistricting
or other subtle techniques.
But the problem we have with the Georgia v. Ashcroft case
seems to be a real defining one for this Committee.
The problem with--you know, Bull Connor may be dead, but
O'Connor is very much alive, and the standard is unenforceable
because it is unintelligible. I think that what an influenced
district is a very interesting question, and it will change
from candidate to candidate and cycle to cycle and geographic
area to geographic area. And even Mr. Gaddie I think agreed
with that.
For example, arguably African-Americans in the State of
Alabama in the 1960's could influence the outcome of the race
between George Wallace and Big Jim Folsom on the theory that
influence means getting the candidate that is the lesser of two
evils may be an important choice for African-Americans at the
time. But I hope we aspire to better than that. And I know that
if we are not going to allow retrogression, we expect better
than that, as we define what these issues mean.
And I think even the specifics of the Georgia v. Ashcroft
case are very telling, because let's face it, there are
minority voters in my community that will be very attractive in
drawing White votes, even a majority of White votes. Maybe the
instances we look at, some of the success candidates have had
in Georgia or other areas anecdotally, there will be other
minorities that are very highly acceptable and desirable in the
minority community that may not be able to attract significant
support from the White community. So I am interested, if we are
not going to change the standards laid out by a narrow majority
in Ashcroft, how do we define what influence means and isn't
that a standard that evolves day to day, candidate to
candidate, and geography to geography?
Mr. Hunter, I will let you start and then ask the other
panelists if they have an opinion as to how this standard,
whether it is even enforceable, but I will leave with you this.
You outlined the dramatic effects in terms of the number of
minorities that are elected to office in North Carolina. In
Florida for 110 years, we had no African-Americans, and only
one Cuban-American ever represented the people of Florida in
Congress. And I can say that for the most part, Floridians are
grateful for the change, although they don't like some of the
specific Congresspersons from our State.
But Mr. Hunter, do you think the standard in Ashcroft can
ever be intelligible, let alone enforceable?
Mr. Hunter. I tried a case about the election of North
Carolina judges, Superior Court judges, statewide called Martin
v. Republican Party. It took 12 years to litigate an
intentional discrimination against Republican voters in the
State in the election of Superior Court judges. It was
incredibly difficult. We finally won. It's the only political
gerrymandering case that's ever been successful. It took us 12
years to prove it, and it has to do with this whole idea of
influence.
You know, influence is something that you get--I think when
people confuse it they are talking about influencing in the
election or influence subsequently when people get into a body
or a chamber, and I think that's what Justice O'Connor proves.
Proving legislative intent or influence is one of the most
amorphous things you can possible prove. Is one legislator more
influential than another? Is a coalition of Blacks and Whites
more influential? Influenced to do what?
I think it's a very difficult standard. It's not objective.
It's not easily understood. It allows the Department of Justice
or the three-judge panel in the District of Columbia to come up
with differing results. Practitioners aren't going to
understand it at all. I just think it's just such an amorphous
concept.
The second thing I want to say--and I'll just use
Congressman Watt's district as an example because I'm from
North Carolina and I happen to know it--I've never met an
incumbent legislator who wanted an influence district. If I
were to go to Congressman Watt and say, as minority legislators
are wont to do--they're the ones being asked to have an
influence district. If I were to go to Congressman Watt and
say, good news, Congressman, your district has been selected to
go from a majority Black district to an influence district, and
we're only going to give you 40 percent of your core district
and give you 60 percent or whatever percentage, and I've got a
political scientist here who's real smart and he's going to
tell you you can theoretically win in that and it will help
your party later on, I don't think I'm going to be Mr. Watt's
lawyer for very long.
I just don't think--incumbents don't want that. They want
certainty. They want surety. Because their influence is what's
important to them in the body after the next redistricting and
after the election. So influence districts don't mean anything,
is a theoretical matter to incumbents, and influence districts
in the community at large are just so ephemeral, I don't know
what it means.
Mr. Chabot. I believe the gentleman asked Mr. Gaddie also
to respond as well. The gentleman's time has expired.
Mr. Feeney. With the indulgence of the Committee, maybe Mr.
Engstrom has something to say as well.
Mr. Chabot. As well as Mr. Gaddie, you mean.
Mr. Engstrom. I share the concern that, as I said earlier,
we do not at this point have a handle on the concept of
influence district. We don't really know what it is. We don't
know how to measure it; and whether we're going to be able to
measure it, say, by the 2010 round of redistricting is an open
question. I'm not really persuaded that we're that close or
whether we ever will be.
There's another dimension to Georgia v. Ashcroft that I
want to note. Just as influence district can be quite
subjective--and I'll add another example. I don't mean to name
a Member of Congress, but there's supposedly a Latino influence
district in Texas. It's a district that elects a Latino
Republican. The Latino Republican has never been supported by
Latino voters in his district, never, and what the State did
was simply go out, eliminate Latinos from his district, because
that was starting to put him at risk, and go out and get more
Anglo Republicans to replace Latino Democrats.
The court in Texas called that a Latino influence district.
Well, if that's a Latino influence district, I think we can
just ignore the concept completely. That is not a district in
which the representative is likely to feel electorally
accountable in a very serious way to the Latino voters.
Let me add one other thing that disturbs me about Georgia
v. Ashcroft--and I'm not a lawyer. Let me preface that. But, as
I read it, I understand Justice O'Connor said the ultimate test
or the ultimate standard was going to be the totality of the
circumstances. Well, if we think influence district is an
amorphous and vague concept, difficult to measure, what in the
world are the totality of circumstances? Totality of
circumstances is a test that leaves judicial discretion a mile
wide, just like influence district, just like that concept does
as well.
So, again, lawyers may be able to tell you better how these
standards will play out, but I am definitely pessimistic about
the concept of influence district and being able to objectively
measure that concept and work it into some kind of calculation
or some kind of relationship that tells us whether these are
valuable, beneficial trade-offs to actual opportunities to
elect and hold electoral or hold representatives accountable.
Mr. Chabot. Mr. Gaddie, did you want to respond very
briefly?
Mr. Gaddie. I get a sense Dick may have cribbed some of my
notes here, so I will be brief.
It is difficult to measure this thing, and this is the
principal challenge that comes out of Ashcroft. Indeed it's
difficult to measure performance in any instance because
measuring a performing district varies by constituency.
Professor Abstein in his testimony in Ashcroft noted that
an African-American candidate had a fair chance of winning a
district at 44.7 percent African-American VAP. He had a similar
analysis in South Carolina that indicated a number of 47
percent African-American BAP. As I look at Representative
Scott's district that he was initially elected from in 2002,
this was a district that approached but did not meet this
threshold.
African-American candidates can win districts where there
is not a majority of African-American voters. That being said,
we will have to ascertain the threshold for every jurisdiction.
We will have to use methods that have predictive error around
them to try an ascertain the ability to perform.
But there's a larger issue here, a representation issue.
Our colleague, Carol Swain at Vanderbilt, has noted that Black
representatives can respond to White constituencies, White
representatives can respond to Black constituencies, but
getting a proportional representation, are we supposed to do
like the odds of a lottery and look at the proportion or
contribution to the majority and ascertain if that proportion
of the representation is being derived from the minority
community? This may be one way to do it, but I'm not sure how
we'd measure it. So we've been left with a vast uncertainty
here, but let's forget about--let's remember part of the
totality of circumstances.
In Ashcroft, Justice O'Connor took note of the support of
African-American legislators in the Georgia legislature for
this map that pulled down African-American percentages in
districts, that the consent of the representatives of that
community was important to establishing the totality of
circumstances.
Now if we have African-American representation being part
of a majority that agrees that you can pull down percentages in
terms of threshold and enter into coalition, we are back to the
question I brought up earlier, how critical is section 5 to a
State where African-American politicians feel confident in
pulling down their percentages in their districts and where
they have such power in the legislature to provide critical
votes to the creation of redistricting maps?
Mr. Chabot. The gentleman's time is expired.
The gentleman from New York, Mr. Nadler, is recognized for
5 minutes.
Mr. Nadler. Mr. McDonald, do you want to answer that
rhetorical question?
Mr. McDonald. I would say two things. The first is that the
three-judge court in the South Carolina case rejected the
argument that 47 percent would comply with the non-
retrogression standard of section 5. That testimony was
rejected, and the court made a specific finding that in order
to provide Black voters an equal opportunity to elect
candidates of choice you had to have a majority of Black
voting-age population or near majority.
Mr. Nadler. Was that finding or that ruling in that
decision for the circumstances of that case or of general
applicability?
Mr. McDonald. For the circumstances of that case.
Let me say one thing. The mere fact that legislators vote
for something, whatever the compromises are, is not--cannot be
dispositive. I would remind us all that during the
reconstruction years Blacks who were members of Congressional
or Constitutional Conventions and who served in the legislature
voted for racially segregated schools. There were examples of
voting for poll taxes. In Georgia, they voted to abolish
locally elected government, plainly a racially motivated
attempt to deprive Blacks.
I mean, I don't think that insulates racially segregated
schools and the poll tax from an independent review. There are
a lot of decisions that are made politically, but the bottom
line is that the Members of the Black Caucus would never have
supported a redistricting plan that abolished the majority
Black districts.
Mr. Nadler. Thank you.
Mr. Engstrom, we've been having a lot of discussion about
crossover voting by White voters. Have you determined the
effect of incumbency on racial Black voting behavior? I suspect
it's obvious that crossover voting is more prevalent for
incumbents than first-time candidates. You can look at initial
elections of a number of candidates. I won't name them. I also
suspect there's greater crossover at the Federal electoral
level. What does crossover look like as elections get more
local? Can you talk about that?
Mr. Engstrom. Well, let me say, in terms of incumbency,
what I have often seen is that the incumbency advantage is
itself racially specific. I have seen much racially polarized
voting in many elections in which there was an incumbent and in
which there was racially polarized voting; and in many of those
elections what happens is, if it's a White incumbent, Whites or
non-African-Americans support that incumbent and often
minorities do not. Likewise, if it's a minority incumbent, they
are supported by the minority voters; and White or Anglo or
non-minority voters don't share that preference. So incumbency
doesn't explain as much as a lot of people think.
Now at the local level what I have found is at the local
level you get--well, a lot of elections are high salients in
which candidates' race and things are well-known by people, but
in local elections there are some in which they're well-known
and others in which they may not be as well-known. But still
you have local candidates, and I think observations or
understandings of the racial composition of a candidate pool
are stronger at the local level.
Now I did do research in Georgia v. Ashcroft which has been
cited. I mean, it's part of my testimony. It's been cited by
some to say that Georgia has changed a great deal, and what I
found was a very distinct difference in crossover voting when
it came to Statewide elections as opposed to local elections.
Mr. Nadler. More crossover voting in the State?
Mr. Engstrom. At the local level. When candidates ran
Statewide--and keep in mind these may not be candidates from
the local area. In most instances, they're not going to be
candidates from the local area. There was a pronounced
difference in Statewide elections in Georgia. Statewide
elections were still racially polarized but not to the degree
that the local elections I studied were.
Mr. Nadler. The local elections are more racially
polarized?
Mr. Engstrom. The local ones were more than the Statewide.
In the districts I studied.
Mr. Nadler. Do you have any idea what the explanation for
that might be?
Mr. Engstrom. I have not studied Georgia politics in the
sense that I was asked that in court and I did not have really
an answer for why. I've not revisited the issue except to
acknowledge that that difference was present.
There's some difference I suspect in visibility, in
campaign strategy, endorsement.
Mr. Nadler. Thank you.
I have one more question. Mr. Blum in the earlier panel
took the position that certain racial data from recent Georgia
elections supports the case for letting section 5 lapse. Is his
methodology for concluding that there's White crossover voting
in Georgia correct and does that hold any significance for
other States in your opinion?
Mr. Engstrom. He was referencing a study I'm not familiar
with.
But one concern when you read a study like that and concern
I will have is to see what kind of elections are being
analyzed. Because one of the big distinctions is what role do
White-on-White elections play. It's come up a little earlier
today. Some people want to look at racially polarized voting on
White-on-White elections and what they find is often minorities
can get on the winning side on a White-on-White election. It
doesn't mean they're electing a representative of your choice.
And I would qualify something that Laughlin said earlier.
The purpose of the act is not to elect candidates of your
choice, it's to elect representatives of your choice. And some
arrangements----
Mr. Nadler. What's the difference between representative of
your choice and candidate of your choice?
Mr. Engstrom. Quite significant, I think. The
representative of choice may not be in the candidate pool
because of the racial composition of the district. One reason
we say Black on White, minority versus non-minority elections
are more probative is because if they show a consistent
preference for being represented by people from within your own
group, then the opportunity to elect, if it's going to be close
to equal, has to include the opportunity to elect from within
your own group.
Mr. Chabot. The gentleman's time has expired. Did you want
to finish up?
Mr. Engstrom. I was just going to--I forgot my thoughts.
I'm sorry.
Mr. Nadler. You were saying that you were making a
distinction of the representative versus candidate and you were
saying obviously--I think what you were saying is that a
candidate of your choice is not really a candidate of your
choice if you didn't have a choice because the representative
is not running.
Mr. Engstrom. Section 2 of the act, for example, says
representative of your choice. Equal opportunity to elect
representatives of choice. You're stuck with candidates. But
the way electoral competition is structured can certainly
affect the pool of candidates, and it can filter out who may be
the representative of choice.
What I think I was saying is study after study after study
of bi-racial elections show that Blacks do indeed prefer to be
represented by people from within their own group. That's a
preference not shared by non-African-American voters.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman.
I want to get back to some of that, but let me ask a couple
of quick questions first.
At the previous hearing we heard evidence that in some
areas the rate of voting, rate of registration was equal
between Blacks and Whites in some areas and, therefore, the
Voting Rights Act had done its duty and was no longer needed.
We're talking about minority voters. Isn't it true that
minority voters are still vulnerable to schemes, whether
they're voting at the same level as everybody else or not? Mr.
McDonald?
Mr. McDonald. The dramatic example of that, Mr. Scott, is
what the State of Georgia did this year in 2005. It passed the
most draconian photo-ID requirement for in-person voting of any
State in the Union. I think maybe Indiana has a similar one.
Mr. Scott. So that the rate of voting does not immunize you
from schemes to diminish the effects of the votes that could be
cast. And redistricting would be the same thing. You take the
same number of votes, just divide them up.
Mr. McDonald. Absolutely.
Can I add one thing? I think this is an excellent gloss on
what the State of Georgia did. Judge Murphy, the Federal
District Court judge in Rome, Georgia, last week issued a
preliminary injunction enjoining use of Georgia's photo ID
requirement because you have got to pay $20 to get one and he
said this was in the nature of a poll tax.
So when people talk about new and subtle schemes to
disfranchise, we're going back to history and getting one of
the most discriminatory devices for excluding poor and Blacks
and making that part of the modern-day scheme.
Mr. Scott. One of the things we have to consider is whether
we're going to reauthorize section 5. If we didn't have section
5 and one of these groups came up with a plan that is clearly
retrogressive, isn't it true that the burden of proof would be,
without section 5, would be on the victims of the
discrimination?
Mr. McDonald. Yes, sir.
Mr. Scott. If we didn't have section 5, the burden of
expert witnesses and proving the case and the costs of
litigation would be on the victims.
Mr. McDonald. Yes.
Mr. Scott. And wouldn't it be true that the benefits of the
scheme would be enjoyed by the perpetrators of the scheme until
such time as the victims could get themselves together, get
into court and win a case?
Mr. McDonald. Yes.
Mr. Scott. Okay. If you have a case that something is being
presented--and we've kind of talked about this a little bit--
there's a clear section 2 violation, should it be precleared if
it is not technically retrogressive? If they're no worse of off
than before but you have a plan that is clearly retrogressive--
not retrogressive but a clear violation of section 2, should
the Attorney General preclear such a plan?
Mr. McDonald. My personal view is no.
Mr. Scott. Anybody think that the Attorney General, if
there is a clear, by any objective standard, violation of
section 2, should it be precleared under section 5? Anybody
believe it?
Mr. Hunter. I would like to mention one thing. The Supreme
Court has taken section 2 analysis out of section 5
preclearance material. But then in Bossier I--but then in the
Ashcroft case they seem to put it back in and say we're
supposed to do a totality of the circumstances----
Mr. Scott. But the benchmark is totality of the
circumstances. You are no worse off than you were before.
Mr. Hunter. Yes. That's why it's confusing.
Mr. Scott. It's a retrogression standard.
Mr. Hunter. Yes, sir. That's under the second case.
The problem is, I don't know what intent to retrogress
means. I know what discriminatory intent is, but intent to
retrogress doesn't have a lot of meaning.
Mr. Scott. Some of these are going to be hard.
Redistricting is hard. Anybody who thinks you can redistrict in
the abstract is a fool. Some areas you need--a candidate may
need 40 or 50 percent African-American to win. Sometimes 60, 70
percent isn't enough. You have got to redistrict where you are,
and there are different variables different places.
My time is running short. Let me just ask a general
question. In looking at the totality of the circumstances, if
you have an African-American district where you have a
reasonable shot at electing a candidate of choice and right
beside that in that area where you can elect with a coalition a
supportive candidate, is that--can you eliminate that influence
district? I mean, should you be able--shouldn't you be able to
count the influence district? Because there is a difference
between an African-American sitting here by himself and an
influence district, compared to sitting there without an
influence district. In other words, can you gratuitously carve
up that influence district and not be retrogressive? Assuming
that you can have a reasonable coalition, a functioning
coalition which will be different some places than others.
Mr. Gaddie. Representative Scott, this is really the great
question mark.
In Texas--and Professor Engstrom may recall this as well--
Judge Higgenbotham had this issue put on him with regard to
maintaining the integrity of Representative Frost's district,
whether Representative Frost was a candidate of choice for the
African-American community, his district which had no
particular majority but was a majority of minorities. The
Federal court said, no, this district is not protected from
retrogression. But that's not also our issue. Because there's
no obligation to create a coalition district. Likewise, there
is no obligation to retain that one. If that district is a
district where minority voters control the primary, where
minority voters are able to coalesce with a minority of White
voters and they're electing the representative of choice of
their community, we have some very significant gray area to
deal with. Our hope is you can give us guidance under the law,
but we can't give you data to clarify that.
Mr. Scott. Well, if in Georgia v. Ashcroft they diluted
some districts in order to create influence districts, without
counting influence districts, you couldn't do that because that
would clearly just in those three districts be retrogression.
Mr. Chabot. The gentleman's time has expired.
Mr. Scott. If I can just continue this.
Mr. Chabot. Would you like an additional minute?
The gentleman has an additional minute.
Mr. Scott. You could not. Although there were still
districts where the minority community can elect a candidate of
its choice, the percentage of those districts was lower, and if
those are the only three districts you're looking at, that
would clearly be retrogression. But looking at the plan as a
whole, because you considered the influence districts next
door, the totality of the circumstances, whatever that means,
met--concluded that the minority community was better off with
the total map--excuse me, wasn't any worse off--since it's
section 5, wasn't any worse off under the new map than it was
under the old map even though in those individual districts
there may have been retrogression.
Now if you don't have that analysis, how would you not be
stuck with overpacked districts and can never get out from
under overpacked districts?
Mr. Engstrom. I don't think the retrogression requirement
says that you can't lower the percentages in a district. It
depends on the context.
Now the districts--the State Senate districts in Georgia
were districts that were roughly around 55 African-American and
voting age population.
Mr. Scott. In the new map.
Mr. Engstrom. In the baseline map.
Mr. Scott. The baseline map.
Mr. Engstrom. The changes whittled them down to roughly 50
percent.
Mr. Scott. If you didn't create any influence districts
you're telling me you could do that gratuitously?
Mr. Engstrom. I'm saying I believe that would be
retrogressive. But if you're sitting with a district that's 80
percent African-American and you reduce it to 75 percent, I
don't think that calls for an objection under the preclearance
requirement. You have got an opportunity to elect--when you go
from 75 to 80, as a general matter the opportunity doesn't
change. Very little. So you don't have to look at it like a
linear thing and you're always stuck with a packed district.
You can reduce those district percentages without having a
retrogressive consequence.
So I don't think we're stuck with necessarily packing and
ratcheting up, ratcheting up, ratcheting up after every census.
I don't think that's the case at all. The Justice Department
has made clear they don't have a standard that says you can't
have a lower percentage in any of the district.
Mr. Chabot. The gentleman's time expired a while ago.
Mr. Scott. If I could--I'm not going to ask another
question. I would want to say it puts the minority community in
an awkward position to never having a choice when you talk
about an 80 to 70. Maybe that's not, in most places,
insignificant, but 70 to 55 could be very significant. And
unless you allow the consideration of what else is going on in
the map, you'd be stuck with the 70.
There are a lot of areas where you may, for political
reasons of effective participation in the Government and the
City Council, whatever, may want to reduce the percentage from
a 70, say, to a 55 in order to create a more accommodating
council, and unless you count the influence districts, you're
stuck. If all you're looking at is one district, you're
retrogressing from 70 to 55. If you go from 70 to 55 but create
a good council where you might actually be able to take over,
you don't want to foreclose that as a possibility, ever; and if
you don't consider the totality of the circumstances, how do
you do that? If we have another round----
Mr. Chabot. We're not planning on that, but the gentleman's
time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman. Let me say to the
witnesses that this has been just an absolutely great hearing
this afternoon; and the one this morning was outstanding, too.
So I want to thank all of you for being here.
I think I'll ask two questions. I want to ask the
researchers a question, and then I want to ask the lawyers a
question, two different questions. Let me deal with the
researchers first.
Because Mr. Blum this morning seemed to be saying that your
study, Mr. Gaddie, leads to a conclusion that you don't need
section 5 in Georgia. The beauty of this job is when I was
practicing law I couldn't ask a question I didn't know the
answer to. I can ask a question here, but I don't know the
answer. I don't know what you're going to say in response to
this. Do you think your study suggests that, as Mr. Blum
indicated this morning, that section 5 preclearance is not
warranted in Georgia?
Mr. Gaddie. Mr. Watt, first of all, it's nice to have an
attorney ask a question where I have an advantage in cross-
examination, so thank you.
The context of the study is congressional elections,
Statewide elections, minority participation. Using
methodologies that both Professor Engstrom and I are familiar
with, we examined bi-racial contests, which had the most
probative value, and also White-on-White contests for
comparison; and in the context of what is typically now the
election of consequence at these levels in Georgia, the general
election, there's little differentiation in the White voter
choice between Black and White Democrats.
This is really the point that I think needs to be made. We
can assume a very high degree of cohesion among African-
American voters in States like Georgia. Our estimates typically
show 90 to 99 percent Africa-American voter cohesion. So the
question is, to what extent are White voters crossing over?
When we look at the election of Thurgood Baker, we look at
the election of Mike Thurmond, two Statewide Black elected
officials in Georgia, we see them receiving votes from Whites
at a rate comparable to other Democrats who win Statewide in
Georgia. When we look at African-Americans who lose Statewide,
Denise Majette for the U.S. Senate, we see her vote totals and
her White vote shares coming in at a level comparable to other
White candidates who lose Statewide.
So in the context of partisan politics, African-American
candidates are little differentiated from White candidates in
Georgia. But, by the same token, if we look at the
opportunities that exist, African-Americans are elected to the
legislature, they are elected from districts that are
approaching 50 percent. They could be elected from districts as
low as 44 percent, and they are attracting White votes in the
same fashion as Black candidates.
So in the context of congressional elections and in the
context of Statewide elections to State legislature, yes, I
would agree with Mr. Blum. We have no conclusions about local
Government.
It has been alleged in a previous hearing here that 90
percent of jurisdictions covered by section 5 can bail out now
if they wanted to. Maybe what we need to do is take a look and
see if that number is correct, because there are probably
jurisdictions in Georgia that still need to be covered, but,
Statewide, Georgia seems to be in good shape.
Mr. Watt. Has Georgia applied the bailout? And wouldn't
that be a fail-safe form even if the conclusion you say is a
correct conclusion? I'm not cutting you off. I just want to get
Mr. Engstrom to comment on the same question. Then I've got a
legal question that I want to ask both the lawyers to comment
on. So don't take too much time because my red light is going
to come on.
Mr. Engstrom. Let me say, first of all, that Dr. Gaddie has
said that districts as low as 44 percent provide an equal
opportunity. I assume what he means is to elect African-
American candidates of choice. I don't agree. That's based on
that analysis done by Professor Epstein in the case which the
District Court dismissed and which the Supreme Court only
referenced. There's no finding in the Supreme Court that says
it's 44 percent. The Supreme Court simply said and the State
has a witness who will say that it's 44 percent.
I looked at that data when I was doing the case, and I
discovered that that figure was--if you take out Cynthia
McKinney, who wasn't running for a State Senate seat but
reelection to the U.S. House of Representatives, if you take
her out and you look at Senate districts, without her the
figure goes up over 50 percent. Or if you look at only Senate
districts, I think it was--the figure went up over 50 percent.
When McKinney and others were included, not dealing with State
Senate elections but throwing in congressional and others, that
brought the figure back down.
But you had--what was in there were people like Cynthia
McKinney running as incumbents and other African-American
legislators running as incumbents. And I do want to note she
was even treated as not an incumbent when she ran for
reelection because of a decision rule that said not over 50
percent of her old district was in her new district. That was
after the mid-decade change, I believe.
Mr. Watt. So I can't reconcile what Mr. Blum, Mr. Gaddie
and Mr. Engstrom just told me. I just have to be a fact finder
here and make up my own mind. That's what you all are telling
me.
Mr. Engstrom. I can add one thing, but I don't----
Mr. Chabot. The gentleman's time has expired. However, you
can answer the question.
Mr. Engstrom. I just want to say one other thing that
disturbed me. I haven't read the study, haven't seen it at all,
but the constant references to no different than some States
that are not subject to a preclearance--and I remember Arkansas
being mentioned. Well, I would hope we would not throw out the
preclearance provision of section 5, because in some of those
jurisdictions racially polarized voting is similar to the State
of Arkansas. I haven't done recent work in Arkansas, but I did
work in Arkansas. I was an expert in a case in which racially
polarized voting was found, and it was at a substantial level,
and it was not only found by my statistics that I presented.
But three judges, all from--who had grown up and lived in
Arkansas, they simply said, in addition to my evidence, they
take judicial notice that voting is racially polarized in the
State of Arkansas.
Mr. Watt. Mr. Chairman, can I ask unanimous consent for one
additional minute on the presumption that the lawyers will
answer my questions quicker than the social scientists will?
Mr. Chabot. Without objection.
Mr. Watt. Legal question, is there any doubt in the two
lawyers' minds that the Supreme Court has now interpreted the
section 5 preclearance standard different than what Congress
intended for it to be? And what do you think the standard ought
to be? I think Mr. Hunter already got toward that objective in
the later part of his written testimony. What's you all's
opinion on where the Supreme Court has gotten to on this
standard? Is it consistent with what you understood to be
congressional intent?
Mr. Hunter. No, sir, it would not be mine. I think if you
move back toward the Arlington Heights kind of analysis you'd
be on safe constitutional ground, and I don't believe that--and
I believe it would be consistent with what was meant in the
'60's, '70's and '80's when you reauthorized the act.
Mr. McDonald. I fully share Mr. Hunter's views. I think
Bossier II is just fundamentally inconsistent.
Mr. Watt. See, I told you all lawyers could answer
questions quicker than social scientists. I didn't have any
doubt about it.
I yield back.
Mr. Chabot. The gentleman's time is expired.
The gentlelady from California, Ms. Sanchez, who's not
actually a Member of this Committee but is a Member of the full
Committee, I would ask unanimous consent, although they don't
normally ask questions, I would be happy if she would like to
take 5 minutes to ask questions if no one will object.
Hearing none, the gentlelady has 5 minutes.
Ms. Sanchez. Thank you, Mr. Chairman.
Before I begin, I just wanted to bring the Committee's
attention to the fact that a pioneer in voter participation and
minority representation passed. Ed Roybal, who was a Member of
the House of Representatives for 30 years, passed yesterday;
and I just wanted to honor him by keeping him in our thoughts.
He's the father of Representative Lucille Roybal-Allard, so
please keep her in your thoughts as well.
I would also ask unanimous consent to submit an opening
statement for the record.
Mr. Chabot. Without objection, it will be entered into the
record.
[The prepared statement of Ms. Sanchez follows in the
Appendix]
Ms. Sanchez. I could lie and say they're going to be quick
questions, but that all depends on how lengthy the answers are.
I'd like to begin with Professor Engstrom. I agree with
your conclusions that your research supports, given the racial
polarization of many jurisdictions, that section 5 coverage
needs to remain in force where it presently applies. My
question is, with the growth of the Latino population in the
United States and the potential establishment of new racially
polarized cities and counties, how do you recommend that those
jurisdictions receive protection from voting discrimination? Do
you believe that it would be wise to establish a mechanism when
the VRA is reauthorized to allow the Department of Justice to
exercise some oversight or control in those areas?
Mr. Engstrom. I have to admit I'm answering first
impression, but my first impression is, yes, given Latino
growth, given areas that may not have been previously covered
because of the relative absence of Latinos and now a
substantial presence of them, I think it is something
definitely worthy of looking into to see if the coverage
mechanism couldn't include new problems that are new
geographically, not old problems, but are now surfacing in new
situations because of the change in population and
demographics.
Ms. Sanchez. Could you envision mechanisms that are
comparable to some of the mechanisms that have been used in the
past where the minority population has historically been
African-American that has experienced these kinds of
discriminatory tactics?
Mr. Engstrom. I think the first thing would be to look at
whether existing mechanisms do the job and would do it
effectively in this new context. I don't really have--it's not
something I've been thinking a lot of, I have to admit. I'm
sorry.
Ms. Sanchez. I've hopefully planted the seed.
Mr. Chabot. Will the gentlelady yield for a moment?
I believe section 3, I think that already covers it, but we
appreciate the lady bringing that up.
I yield back.
Ms. Sanchez. Anything further to add, Mr. Engstrom?
Mr. Engstrom. I don't have the answers. Again it's
something I'd have to give thought to, but I think it's worthy
of taking a serious look at.
Ms. Sanchez. Thank you.
Mr. McDonald, a question for you. I would like, if you
would be so kind, for you to shed some more light on how
proposed changes to voting laws can have retrogressive effects.
I know that some detractors feel that it's no longer necessary
to gain Federal approval to insure that a proposed voting
change is not retrogressive. I'm specifically interested if you
can explain how seemingly minor voting changes can have a major
retrogressive effect on voting acts, for example, the changing
of a polling place location. Can you talk a little bit more
about that?
Mr. McDonald. Well, all of these changes can have an
important affect. The implementation of a majority vote
requirement, for example, for a Mayor of a city doesn't sound
like a huge change, but if you have three or four White
candidates running and one Black candidate running, it may very
well be that the White candidates will split the White vote and
the Black candidate would get the plurality. If you abolish
that and go to a majority vote requirement, it means the Whites
can always regroup in the runoff. In fact, throughout the South
there is a pattern of the adoption by jurisdictions of those
kinds of discriminatory voting practices to blunt the effect of
increased registration and turnout by Blacks.
Things like numbered post provisions, which isolate people
on one-on-one contests, also dilute the voting strength of a
discrete minority. Staggered terms of office, which restrict
the number of posts that are up in any election, have the same
effect. We had the State Legislature in South Carolina 2 years
ago enacting a system for a school board going from a
nonpartisan, multi-seat format to a partisan format which the
district court had just ruled diluted minority voting strength
and you have the legislature adopting that very system for the
school board. So I mean some of them are subtle; some are not
so subtle. We have the State of Georgia enacting its photo ID
requirement, which is resurrecting the poll tax.
Ms. Sanchez. Thank you so much for your testimony, and I
yield back.
Mr. Chabot. Thank you. The gentlelady's time is expired.
I think that concludes the questioning by the Members of
the panel up here this afternoon.
I would just note again for the record something I had
indicated early on in the hearing, that we had scheduled two
hearings this Thursday which will no longer take place. They'll
be, we think, next week; and we'll let both sides know when
they are rescheduled.
We want to thank the panel this afternoon. My esteemed
colleague from New York, the Ranking Member, said not only was
this interesting but the testimony was scintillating. His term,
but I think he's right. This was very helpful.
Also goes to again make sure that the record which will be
necessary ultimately to make sure that it's complete is more
complete than it was prior to this hearing, and we appreciate
very much this panel for having that effect. So thank you again
for coming.
If there's no further business to come before the
Committee, we're adjourned. Thank you.
[Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Statement of the Honorable John Conyers, Jr., a Representative in
Congress from the State of Michigan and Member of the Subcommitee on
Constitution
With our review of the history, scope and purpose of Section 5, we
turn to the heart of the matter on reauthorization of the Voting Rights
Act. Under Section 5, any change with respect to voting in a covered
jurisdiction--or any political subunit within it--cannot legally be
enforced unless and until the jurisdiction first obtains preclearance,
either from the Department of Justice or the United States District
Court for the District of Columbia.
Preclearance requires proof that the proposed voting change does
not deny or abridge the right to vote on account of race, color, or
membership in a language minority group. If the jurisdiction is unable
to prove the absence of such discrimination, the District Court denies
preclearance, or in the case of administrative submissions, the
Attorney General objects to the change, and it remains legally
unenforceable.
At the time of its original passage, some in Congress complained of
the serious burden that Section 5 placed on covered jurisdictions, as
they do today. But then, as now, I believe it is more important to
focus on the fundamental rights being protected by the Act and the
history of federal enforcement efforts.
Some choose to ignore the fact that, prior to 1965, the federal
government had attempted to strike down discrimination in voting, only
to face some mutation of a discriminatory scheme from jurisdictions
shortly thereafter. Section 5 was designed to stop this continual march
from court to court and to achieve a substantial initial victory
allowing African-American access to the ballot box.
The Voting Rights Act has been amended three (3) times to broaden
the scope of the Section 5's coverage to language minorities and to
cope with the changing nature of voting discrimination. Now we must ask
ourselves: how does Section 5 evolve or has it outlived its usefulness.
Today, some of our witnesses may suggest that the time for Section5 has
passed and that we should move on, relying on Section 2 of the Act to
address any continuing discrimination.
Others have already pointed out that the continuing record of
Section 5 objections supports a need for reauthorization and
strengthening enforcement provisions, like Section 5. While I believe
that the Act should be fully reauthorized, it is vital that we
understand all the arguments regarding the merits of Section 5, and the
other special provisions, to ensure that we build a record adequate to
insulate this important legislation from any constitutional challenge.
I look forward to our exploration of the evolution of Section 5 over
the course of these next four (4) hearings.
----------
Statement of the Honorable Linda T. Sanchez, a Representative in
Congress from the State of California
Thank you Chairman Chabot and Ranking Member Nadler for convening
today's hearing. I appreciate the opportunity to join the Constitution
Subcommittee's review of the ``Continuing Need for Section 5'' of the
Voting Rights Act.
I believe very strongly that Section 5 of the Voting Rights Act
needs to continue so that minority voters are empowered to elect the
candidates of their choice and fully participate in the political
process.
In recent nationally published op-eds, some commentators have
described the pre-clearance provision as ``antiquarian nonsense.''
Apparently, these detractors believe that preventing voting fraud and
intimidation is ``nonsense.'' I firmly disagree.
The pre-clearance provision of Section 5 offers protections against
retrogressive changes to polling places and other tactics that can
further fraud and intimidation.
Section 5's pre-clearance requirements have effectively detected
and prohibited voting laws and procedures used in many jurisdictions to
deprive Latinos and other minorities of their voting power.
In addition to its direct effects, Section 5 acts as a strong
deterrent against discriminatory voting changes by local officials and
legislators. These officials are much less likely to propose
discriminatory voting changes because they know that these changes have
to meet the pre-clearance requirements.
One of the most important elements of Section 5 is that it is broad
in scope and provides all minority voters with full protection from
discrimination.
Another key element of Section 5 is that it's written in plain
language that has long been understood to prohibit both purposeful
discriminatory voting changes and also those voting changes that have a
discriminatory effect.
The breadth of Section 5 and its plain language provides minority
voters with substantial protections against discriminatory voting
practices.
However, recent Supreme Court rulings have effectively eliminated
many of the protections in the Section 5 pre-clearance test, and as a
result significantly reduced the power of Section 5.
For example, in the Reno v. Bossier Parish School Board, the
Supreme Court upheld a Louisiana school board district plan that
intentionally prevented African-American majority districts from being
established.
The court reasoned that because there had never been a Black
district in Bossier Parish, the Department of Justice was powerless to
block intentionally discriminatory voting changes unless it found that
the jurisdiction acted with the ``retrogressive purpose'' of making
things worse for African-Americans.
As a result of the Supreme Court's ruling, election officials in
purposefully segregated jurisdictions can now make new voting changes
that are intentionally meant to perpetuate the discrimination against
minority voters, and those changes would not violate Section 5.
That is certainly not the result that Congress contemplated when
Section 5 was written. Section 5 has an ``effect'' prong and a
``purpose'' prong that are meant to prohibit voting practices that are
discriminatory both in effect and in intent.
The Supreme Court's ruling has substantially weakened the
Department of Justice's power to protect minority voters from voting
practices that are intentionally designed to diminish minorities' power
in the political process.
It is critical that Section 5 be reauthorized and also changed to
restore the ``purpose'' prong of the Section 5 pre-clearance test and
give the Department of Justice full power to enforce the Voting Rights
Act.
Before I conclude, I would also like to state for the record my
opposition to the nationwide application of Section 5. This would be
disastrous, and would ultimately render this important provision
ineffective.
Under current law, the Department of Justice has the ability to
focus and target their enforcement. We need to ensure that DOJ retains
this power so that they can better focus their work on the
jurisdictions where a recent history of voting discrimination remains.
Again, I thank Chairman Chabot and Ranking Member Nadler for their
courtesy in letting me participate in these hearings.
I yield back the balance of my time.
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Appendix to the Statement of Laughlin McDonald: ``The Need to Expand
the Coverage of Section 5 of the Voting Rights Act in Indian Country''
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Appendix to the Statement of Laughlin McDonald: ``The Voting Rights Act
of Indian Country: South Dakota, A Case Study'' American Indian Law
Review, 29 Am. Indian L. Rev. 43
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Appendix to the Statement of Robert Hunter: ``Racial Gerrymandering and
the Voting Rights Act in North Carolina.'' Campbell Law Review, 9
Campbell L. Rev. 255
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Inserted into the Record by Chairman Chabot on October 26, 2005: Beer
v. United States (425 U.S. 130, 96 S. Ct. 1357)
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