<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:24283.wais]
VOTING RIGHTS ACT: SECTION 5--
PRECLEARANCE STANDARDS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
NOVEMBER 1, 2005
__________
Serial No. 109-69
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
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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
----------
NOVEMBER 1, 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 Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and 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................................................... 3
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Member, Subcommittee on the
Constitution................................................... 4
WITNESSES
Mr. Mark A. Posner, Adjunct Professor, American University,
Washington College of Law
Oral Testimony................................................. 7
Prepared Statement............................................. 9
Ms. Brenda Wright, Managing Attorney, National Voting Rights
Institute
Oral Testimony................................................. 19
Prepared Statement............................................. 21
Mr. Roger Clegg, Vice President and General Counsel, Center for
Equal Opportunity
Oral Testimony................................................. 29
Prepared Statement............................................. 32
Mr. Jerome A. Gray, State Field Director, Alabama Democratic
Conference
Oral Testimony................................................. 44
Prepared Statement............................................. 47
APPENDIX
Material Submitted for the Hearing Record
Appendix to the Statement of Brenda Wright: Testimony of Brenda
Wright before the National Commission on the Voting Rights Act,
October 29, 2005............................................... 70
Appendix to the Statement of Brenda Wright: Letter from Isabelle
Pinzler, Acting Assistant Attorney General, Civil Rights
Division, Department of Justice, to Sandra Shelson, Esq.,
Special Assistant Attorney General, State of Mississippi....... 79
Appendix to the Statement of Brenda Wright: Young v. Fordice 520
U.S. 273 (1997)................................................ 86
Appendix to the Statement of Roger Clegg: Letter from Roger Clegg
to the Honorable Robert C. Scott, November 2, 2005............. 95
Material Submitted for the Record by Mr. Feeney during the
hearing:
Peyton McCrary, et al., ``The End of Preclearance As We Knew
It: How the Supreme Court Transformed Section 5 of the
Voting Rights Act''........................................ 96
Material Submitted for the Record by Mr. Chabot on November 1,
2005:
Reno v. Bossier Parish School Board (520 U.S. 471, 117 S.Ct.
1491)...................................................... 182
Reno v. Bossier Parish School Board (528 U.S. 320, 120 S.Ct.
866)....................................................... 202
VOTING RIGHTS ACT: SECTION 5--PRECLEARANCE STANDARDS
----------
TUESDAY, NOVEMBER 1, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. Good afternoon. This is the Subcommittee on the
Constitution, and it will come to order now. This is the fifth
in a series of hearings on the Voting Rights Act that we have
held thus far. More specifically, this is the third in
examining section 5 and the preclearance requirements it
imposes on covered States and counties. Section 5 is one of the
several temporary provisions set to expire in 2007.
We have yet another distinguished panel with us here this
afternoon. We are very fortunate to have such a distinguished
panel. I appreciate the witnesses taking time out of their busy
schedules and especially with the expertise that they have. And
we are continuing to examine the impact and effectiveness and
continued need for section 5.
Section 5 was enacted in 1965 as part of the Voting Rights
Act, along with several other temporary and permanent
provisions, to end almost a century of discrimination against
minorities in the political process. It was designed to prevent
certain States and political subdivisions from undermining
Federal efforts to enforce the constitutional guarantees of the
14th and 15th amendments.
As we discussed in our earlier hearing, section 4 of the
Voting Rights Act set forth a formula to cover jurisdictions
with a history of discrimination. To protect minority voters
and the progress made to date, Congress required these covered
jurisdictions to preclear all voting and election changes with
the U.S. District Court for the District of Columbia or the
Attorney General before being able to give effect to such
changes.
In submitting changes, covered States and counties are
required to prove that such a change, ``does not have the
purpose or effect of denying a citizen's right to vote on
account of race, color or language minority status.''
The Department of Justice and the U.S. District Court for
the District of Columbia enforced section 5 by requiring
covered jurisdictions to prove that such a change was not made
with a purpose to discriminate and will not have the effect of
making minority voters worse off. Such was the standard until
2000 when the Supreme Court deviated from this standard in the
case of Reno v. Bossier Parish, also known as Bossier II. In
Bossier II the Supreme Court held that section 5 only required
a covered jurisdiction to prove that a change was
nonretrogressive in purpose and effect.
The holding of the Court therefore allowed changes that are
enacted with a nonretrogressive but discriminatory purpose to
be precleared under section 5. Some suggest that this standard
is contrary to the broad purpose of the Voting Rights Act in
section 5, which is to prohibit discrimination in all forms.
During this hearing, we will discuss Congress' intent in
enacting section 5, the Department of Justice's and U.S.
District Court for the District of Columbia's enforcement
efforts prior to and after Bossier, and the potential solutions
to remedy the impact if the decision is contrary to Congress'
intent.
Again, we very much appreciate such a distinguished panel
as we have before us this afternoon. And I will now yield, I
believe, to the gentleman from North Carolina, Mr. Watt, for
the purpose of making an opening statement.
Mr. Watt. I thank the Chairman for yielding. I am not sure
how I got yielded to first, but I will take whatever order you
want to take me in.
Mr. Chabot. We would suggest 5 minutes, but----
Mr. Watt. All right, 5 minutes.
Mr. Chabot. Or less.
Mr. Watt. Or less. Today is our fifth hearing on the
reauthorization of the Voting Rights Act and the third in which
we focus on section 5. Today we begin to consider whether the
Supreme Court in a number of cases has strayed from the
statutory intent of Congress in enacting section 5 through its
interpretations of challenges under the act.
Section 5 requires covered jurisdictions to submit proposed
voting changes to the Department of Justice or a three-judge
court for preclearance. The jurisdiction bears the burden of
proving that the proposed change, ``does not have the purpose
or effect of denying or abridging a citizen's right to vote on
account of race, color, or language minority status.''
For that case, the Supreme Court recognized that a voting
change that was constructed with a discriminatory purpose
violated section 5 and could not be precleared by the Justice
Department or the three-judge court.
Proof of discriminatory purpose or intent has always been a
formidable challenge, and as modes of discrimination become
more sophisticated and less obvious, proof of discriminatory
intent increasingly seem to be practically insurmountable. Yet,
for years, minority voters and their advocates shouldered that
overwhelming burden where necessary to prove intent where a
voting change in a section 5 jurisdiction was motivated by a
racial animus and intent to discriminate.
The Reno v. Bossier Parish school board, the so-called
Bossier II case, on its facts was such a case. In Bossier II a
Louisiana parish school board adopted a redistricting plan with
the specific and successful intent to keep Blacks off the
school board.
Because no Blacks had previously served on the school
board, however, the Supreme Court held that there was no
retrogression; that is, there was no backsliding and, hence, no
violation of section 5 in that case. The decision of the Court
in Bossier II was a radical departure from prior judicial
interpretations of section 5, many of which are addressed in
the written submissions from the witnesses today.
Under Bossier II, if blatant discrimination operates to
keep a minority group, ``in its place,'' there is no violation
of section 5.
This cannot be what Congress intended in 1965 when it
resolved to shift the advantage of time and inertia from the
perpetrators of the evil to its victims as the Supreme Court
noted in South Carolina v. Katzenbach. A rule of law that
permits intentionally discriminatory policies that deliberately
stagnate the progress of racial minority is counter to our
democratic principles and invites racial hostility and
polarization.
I hope that these hearings will form the basis for us to
address and correct the Supreme Court's decision in Bossier II
and the corrosive effect it is having on political
participation for minorities.
Indeed, Mr. Chairman, as we prepare to say our final good-
bye to Rosa Parks whose courageous defiance served as a
catalyst to the civil rights movement, it seems only fitting
that we reaffirm that our Nation does not sanction the racial
subjugation of minorities either on the bus or at the polls.
Thank you, Mr. Chairman, and I look forward to hearing the
testimony of the witnesses and thank the witnesses for being
here to enlighten us here today.
Thank you so much. I yield back.
Mr. Chabot. Thank you. The gentleman yields back his time.
The very distinguished Ranking Member of the full
Committee, Mr. Conyers, is recognized for the purpose of making
an opening statement. I would also note that a significant
number of Members of the House, including myself and others,
will be traveling to the gentleman's district, I believe
tomorrow, for the purpose of attending the funeral of Ms.
Parks.
The gentleman is recognized.
Mr. Conyers. Thank you, Chairman Chabot. I am delighted
that my friend from North Carolina would couch his opening
statements in the backdrop of the incredible outpouring of
grief and sentiment about the contributions of the mother of
the civil rights movement, whose third tribute, memorial and
home-going, will take place in Detroit tomorrow. We have had to
enlarge to two planes, now leaving; and I am glad that the
Chairman of this Subcommittee, as well as other Members of the
Republican Party, are going as well.
The only thing I wanted to add to Mr. Watt's commentary is
the fact that we are dealing with the most sensitive part, in
my mind, of this reauthorization process, section 5. What we
are going to be asked to do sooner or later is to look at a
decision which has reversed over 3 decades of practice about
how section 5 would be implemented.
There are a couple of considerations here. Number one is
that we have had a restriction of the application of section 5
preclearance submissions that have been very, very noted
under--as a result of Bossier II in particular. Also, the fact
that in section 5 we intended to prohibit the implementation of
racially motivated changes, and it is almost undeniable that
Bossier, by a 5-4 decision, was not adequately decided.
Now, this is not the first time that the Congress and this
Committee have been called upon to rectify the problems in
judicial interpretation of the Voting Rights Act of 1965. This
has happened before, and it will probably be suggested that it
happen again. It is extremely important that the way that we
make sure that we don't slip back into the past is that the
preclearance submission requirement be carefully gone over, and
just to make sure that we all feel good about what we may be
called upon to do, we just had to correct a court decision in
the highest court of the land, in takings under eminent domain
only last week in the Kelo case.
So, sometimes it is our job. As we look back at the effects
of the Supreme Court decision we realize that it is very
important that we make the correction and that we don't let a
case stand like that. I think that this is essentially what we
are confronted with today; and I am very happy that we have got
such a distinguished panel of witnesses.
I look forward to a very stimulating discussion, and I
thank the Chairman for the time and return what is remaining.
Mr. Chabot. Thank you very much. The gentleman yields back.
Are there any other Members that would like to make any
opening statement?
The gentlemen from Virginia, Mr. Scott is recognized.
Mr. Scott of Virginia. Thank you, Mr. Chairman, and I thank
you for convening the hearing.
The purpose of these hearings is to establish a record to
justify the reauthorization of section 5 of the Voting Rights
Act. Jurisdiction covered by section 5 must receive prior
approval from the U.S. Attorney General or prior judicial
approval from the three-judge panel in the Federal District
Court in Washington, D.C., for all proposed voting changes.
The importance of this provision has been recognized by
several civil rights organizations in previous hearings. A
bipartisan congressional report in 1982 warned that without the
section, discrimination would appear--would reappear overnight.
Frankly, Mr. Chairman, I don't think it would take that long.
Without prior approval, preclearance jurisdictions could
proceed to elect to make changes in elections and have
elections on what would later be determined by courts pursuant
to a section 2 challenge to be illegal changes.
Bringing a section 2 action is very expensive, more than
what most voters or small groups may be willing to afford to
vindicate their rights. And even if they were able to make a
case and be successful, this would be years down the road by
the time you take into account the time frame for litigation,
including appeals. By then, the winner of the illegal election
is an incumbent, and we all know from our experiences as well
as from observing other races in which there is an incumbent
and from testimony before this Subcommittee, that incumbency is
a huge and, more often than not, dispositive advantage in an
election.
So it is clear that if we do not renew this section, we
would essentially create a perverse incentive to pass illegal
plans with no immediate recourse. Unfortunately, due to the
2000 Supreme Court case, Bossier Parish, we do need to consider
more than a simple renewal of section 5. We have to also renew
and strengthen its traditional intent and purpose of
disallowing voting changes with a discriminatory purpose as
well as just effects. The Department of Justice, the courts and
all proponents of section 5 have long understood and
interpreted it to prohibit jurisdictions from implementing both
purposeful discrimination and those that changes with
retrogressive effect. However, the majority in Bossier Parish
II effectively eliminated the purpose prong of the preclearance
requirement.
The Court held that section 5 was intended only to prevent
specific instances in which changes would make minority voters
worse off than they were prior to the change. The majority in
that case incorrectly interpreted congressional intent in
crafting section 5 by limiting its impact to those cases where
there was the retrogression; and this leaves, of course, the
absurd result that when a clear section 2 violation is offered
in a change for preclearance,if the illegal plan is no worse
than the existing illegal plan, the Justice Department would
have to preclear it. That eviscerates the very purpose of
section 5 preclearance.
So Congress must not only reauthorize section 5, but we
must also clarify its intent that section 5 preclearance would
disallow and prevent all voting practices that have a
discriminatory purpose.
Thank you, Mr. Chairman. I look forward to the testimony of
our witnesses.
Mr. Chabot. Thank you, and the gentlemen yields back. I
would note the attendance today, as well, of the gentleman from
Georgia, Mr. Scott, who is not a Member of this Committee, but
has been very studious, I would say, in attending many of the
hearings we have had thus far, and we appreciate your
attendance as well.
At this time, I would like to introduce our very
distinguished panel. Before I do that, I would note that,
without objection, all Members will have 5 legislative days to
submit additional materials for the hearing record.
Our first witness this afternoon will be Mr. Mark Posner.
Mr. Posner is currently an Adjunct Professor of Law at the
University of Maryland's School of Law and at American
University's Washington College of Law, as well as an
independent consultant in the area of civil rights.
Prior to teaching and consulting, Mr. Posner served as an
attorney in the U.S. Department of Justice Civil Rights
Division from 1980 until 2003. Between the mid-1980's through
1995 he was one of two attorneys responsible for reviewing
section 5 preclearance submissions and served as special
section 5 counsel from 1992 until 1995.
Prior to joining the Department of Justice, Mr. Posner was
a law clerk to U.S. District Court Judge Harry Pregerson.
We very much welcome you here this afternoon, Mr. Posner.
Our second witness will be Ms. Brenda Wright. Ms. Wright
currently serves as the Managing Attorney for the National
Voting Rights Institute in Boston, Massachusetts. As Managing
Attorney, Ms. Wright directs the NVRI's nationwide litigation
program and has served as lead counsel for the Institute in
landmark cases in Vermont and New Mexico, defending the
constitutionality of campaign spending limits.
Prior to joining the NVRI, Ms. Wright served as the
Director of the Voting Rights Project at the Lawyers' Committee
for Civil Rights Under Law, where she successfully argued the
first Supreme Court case, Young v. Fordice, involving the voter
law. In addition to authoring many publications on voting
rights and campaign finance reform, Ms. Wright has testified
before Congress and State legislatures on several occasions.
We welcome you back, Ms. Wright.
Our third witness will be Mr. Roger Clegg. Mr. Clegg is
Vice President and General Counsel for the Center for Equal
Opportunity, where he specializes in civil rights, immigration
and bilingual education issues.
Prior to his work at the Center, Mr. Clegg held a number of
positions at the U.S. Department of Justice between the years
1982 and 1993 including that of Assistant to the Solicitor
General. From 1993 to 1997, Mr. Clegg was Vice President and
General Counsel of the National Legal Center for the Public
Interest, where he wrote and edited a variety of publications
on legal issues of interest to business.
Mr. Clegg is the author of numerous publications, writes
frequently for USA Today, the Legal Times, and The Weekly
Standard and serves as a contributing editor for the National
Review online.
We welcome you here, as well, Mr. Clegg.
Our fourth and final witness this afternoon will be Mr.
Jerome A. Gray. Mr. Gray currently serves as the State Field
Director for the Alabama Democratic Conference, a position he
has held for 25 years.
During the 1980's, Mr. Gray played an instrumental role in
organizing and mobilizing Black citizens at the county and
municipal levels to successfully challenge the administration
of discriminatory election systems. In addition, for more than
20 years, Mr. Gray served as a member of the Alabama Advisory
Committee to the U.S. Commission on Civil Rights, investigating
civil rights injustices throughout the State.
Mr. Gray is the coauthor of the Alabama chapter in the
highly acclaimed publication edited by Chandler Davidson and
Bernard Grofman, Quiet Revolution in the South: ``The Impact of
the 1965 Voting Rights Act, 1965-1990,'' and has served on
numerous panels discussing race, politics and voting.
Mr. Gray is a life member of the Conecuh--am I pronouncing
that correctly--County branch of the NAACP, and is the
Political Action Chairman of the NAACP State Conference.
We welcome the entire panel. As we said, we have a very
distinguished panel here this afternoon.
For those of you who may not have testified before the
Committee, we have what is called a 5-minute rule where you are
allowed to testify for 5 minutes. We have a lighting system;
there are two separate lights there, the green light will stay
on for 4 minutes, the yellow light will let you know you have 1
minute to go and the red light will indicate you that your 5
minutes are up. I won't gavel you down immediately, but we ask
you to stay within the confines of the 5-minute rule.
We will have 5 minutes to ask questions as well, so we will
stick by that same rule.
It is the practice of the Committee to swear in all
witnesses appearing before it, so if you would all please rise
and raise your right hand.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the
affirmative. We thank you very much, and we now begin with you,
Mr. Posner, and you're recognized for 5 minutes.
TESTIMONY OF MARK A. POSNER, ADJUNCT PROFESSOR, AMERICAN
UNIVERSITY, WASHINGTON COLLEGE OF LAW
Mr. Posner. Thank you, Mr. Chairman, and good afternoon to
you and to the distinguished Members of this Committee.
It is an honor to testify before you today regarding the
reauthorization of section 5 of the Voting Rights Act, one of
our Nation's most important civil rights laws.
It is my firm belief that Congress, as part of a section 5
reauthorization, should legislatively reverse the Supreme
Court's January 2000 decision in Reno v. Bossier Parish School
Board. There are three reasons for this.
First, the five-Justice majority in Bossier Parish badly
misconstrued the meaning of the discriminatory purpose test
contained in section 5. For over 34 years prior to this
decision, section 5 prohibited the implementation of voting
changes adopted with a racially discriminatory purpose. Now,
according to the Court, racially motivated voting changes are
almost always completely legal under section 5.
Specifically, the section 5 purpose test now only applies
if, per chance, a jurisdiction were to intend to cause a
retrogression in minorities' electoral opportunity, but somehow
messes up and adopts a change that, in fact, is not
retrogressive. This is highly unlikely to occur, and in fact,
in the nearly 5 years since Bossier Parish was decided, the
Justice Department has reviewed approximately 76,000 voting
changes and no such incompetent retrogressor has appeared.
Adopting such a specialized and esoteric definition of
discriminatory purpose is not what Congress intended when it
enacted the Voting Rights Act in 1965. The plain meaning of the
word ``purpose'' in section 5 encompasses any and all
discriminatory purposes, not merely a purpose to cause
retrogression.
As the Supreme Court explained when it upheld the
constitutionality of section 5 in 1966, Congress adopted the
statute to respond to exceptional conditions by acting in a
decisive manner through an uncommon exercise of congressional
power. Clearly, Congress knew that this historic effort
necessitated a prohibition on all purposeful discrimination in
voting.
Second, as a matter of actual practice, the Bossier Parish
decision has substantially undercut the ability of the Justice
Department and the District Court for the District of Columbia
to employ section 5 to block the implementation of
discriminatory changes.
At the time that Bossier Parish was decided, a majority of
the Justice Department's section 5 objections were based on
discriminatory purpose, and the clear trend line from the
1970's to the 1980's to the 1990's was that discriminatory
purpose increasingly was the basis on which the Department was
interposing objections. About four-fifths of the Department's
objections to post-1990 redistricting plans were based on
discriminatory purpose and about a third of the objections to
the post-1980 plans were interposed on this basis.
Not surprisingly, therefore, after Bossier Parish, the
Justice Department has interposed many fewer objections to
redistricting plans and to voting changes in general.
Third, the section 5 discriminatory purpose test is fully
capable of administration by the Justice Department and the
District Court for the District of Columbia and does not raise
any constitutional concerns. It may be that the Supreme Court's
central problem with the section 5 purpose test is that it does
not trust the Justice Department to apply this test in an
appropriate manner.
In 1995, a five-Justice majority of the Court averred that
the Department was using the purpose test as a cover for
implementing a near-unconstitutional policy of maximization.
Then, in Bossier Parish, the same five Justices suggested that
the purpose test itself might render section 5
unconstitutional.
Since purposeful discrimination is the core conduct
prohibited by the 15th amendment, this statement seems
explainable only if the five Justices were referring to the
false purpose test they believe the Justice Department was
enforcing. It is my conclusion, however, that the Justice
Department, in fact, did not apply the section 5 purpose test
in an unlawful or inappropriate manner.
The Department utilized the well-established framework for
conducting discriminatory purpose analyses set forth by the
Supreme Court in the Arlington Heights case and also relied on
the analytic factors described in the Department's procedures
for the administration of section 5.
The Department first began to rely extensively on the
purpose test in the 1980's during the Reagan administration
when William Bradford Reynolds was Assistant Attorney General
for Civil Rights, and the purpose objections interposed
thereafter reflected a continuation of the modes of analysis
begun at that time. Still, in light of the concern expressed by
the Supreme Court, Congress should consider what actions it may
take to provide further assurance that the Justice Department
and the District of Columbia court will employ the purpose test
in an appropriate manner if Bossier Parish is legislatively
reversed. Specifically, Congress should consider including
statutory language and/or legislative history that would
provide clear guidance to the Department and the District Court
with regard to the manner in which the section 5 purpose test
should be utilized.
For these reasons, I believe that Congress should act to
reverse the Supreme Court's decision in Bossier Parish to
restore the section 5 purpose test to the meaning Congress
intended when it enacted section 5 in 1965. Discriminatory
purpose under section 5 should again mean discriminatory
purpose.
Thank you.
Mr. Chabot. Thank you.
[The prepared statement of Mr. Posner follows:]
Prepared Statement of Mark A. Posner
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Ms. Wright, you're recognized for 5 minutes.
TESTIMONY OF BRENDA WRIGHT, MANAGING ATTORNEY, NATIONAL VOTING
RIGHTS INSTITUTE
Ms. Wright. Good afternoon, Mr. Chairman, and Members of
the Subcommittee. I very much appreciate the opportunity to
testify here in favor of reauthorization of the Voting Rights
Act of 1965.
I am here today to discuss in particular the need to fully
restore section 5's protections against purposeful racial
discrimination in voting. As you have indicated, Mr. Chairman,
those protections were fundamentally weakened by the Supreme
Court's January 2000 decision in the Bossier Parish case. In
that decision, a narrow majority said that the Justice
Department must approve certain racially discriminatory voting
changes under section 5 even if the Justice Department
determines that the discrimination was intentional.
I believe the Bossier Parish decision was contrary to
Congress' intent in enacting section 5 and contrary to well-
settled precedent. By its terms, section 5 bars any voting
change that is racially discriminatory either in its purpose or
its effect.
Prior to the Bossier Parish decision, it was clear that the
purpose and effect test of section 5 were independent, so that
failure to satisfy either one meant that the voting change
should not be precleared.
A series of Supreme Court decisions in the 1970's and
1980's established that a showing of retrogression was
necessary to support an objection under the effects test, but
also made it clear that any voting change that was the product
of intentional racial discrimination was barred under section 5
whether or not it was retrogressive. A good example of this was
a 1975 case, City of Richmond v. United States, in which the
Court explained in a very vivid way why a change with no
unlawful effect should still be denied preclearance if adopted
for a discriminatory purpose. In the Court's words, an official
action, whether an annexation or otherwise, taken for the
purpose of discriminating against Negroes on account of their
race has no legitimacy at all under our Constitution or under
the statute.
For many years, the Justice Department relied on this
understanding of the purpose test to deny preclearance to any
changes that reflected intentional racial discrimination. But
the Bossier Parish decision changed all this by ruling that the
intent prong of section 5 covers only so-called ``retrogressive
intent,'' that is, an intent to make things worse for minority
citizens as compared to the status quo. Under that
interpretation, a jurisdiction that never had minority
representation on its elected body could continue to adopt new
redistricting plans, intentionally designed to freeze out
minority voting strength; and section 5 would provide no
protection.
The facts in the Bossier Parish case, as Representative
Watt indicated, provide a good illustration of that. In 1990,
African-Americans constituted approximately 20 percent of the
population in the parish, yet no African-American had ever been
elected to the 12-member school board. The school board refused
to include any majority Black districts in the new plan even
though the school board later stipulated that it was, ``obvious
that a reasonably compact Black majority district could be
drawn within Bossier City.''
There was even testimony that two school board members
acknowledged that the redistricting plan reflected opposition
to Black representation or a Black majority district. The
Supreme Court nevertheless ruled that the Justice Department
was powerless to block the school board's plan under section 5
because the plan did not have a retrogressive purpose. That
decision greatly weakens protections of the Voting Rights Act.
If this interpretation had been applied during the first 35
years of section 5's history, Congressman John Lewis of Georgia
probably would not have won election to the U.S. Congress in
1986. In the early 1980's, Georgia enacted a discriminatory
congressional redistricting plan that fragmented the Black
population in the Atlanta area. The Georgia legislator who
headed the redistricting committee openly declared his
opposition to drawing so-called Negro districts, except that he
did not use the word ``Negro;'' he used the racial epithet.
Because of the clear evidence of racism behind the plan,
the Justice Department objected even though the plan was not
retrogressive. Georgia then redrew the district and the result
was that Congressman Lewis was able to win election. But under
the Bossier Parish decision, the Department of Justice would
have been obliged to approve Georgia's original discriminatory
plan.
The decision has also had a serious detrimental impact on
actual section 5 enforcement since it was issued. In 1980's and
1990's, before the Bossier Parish decision, over 200 section 5
objections were based solely on racially discriminatory intent.
By contrast, in the first 4\1/2\ years after the Bossier Parish
decision, only two objections were based solely on intent.
All of this underscores the importance of restoring the
original intent of section 5 when Congress reauthorizes it.
When a jurisdiction deliberately acts to lock minorities out of
electoral power, that jurisdiction should not be entitled to
preclearance simply because minorities have always been
discriminated against in the jurisdiction.
Intentional racial discrimination should not be tolerated
under section 5. Such a result is fundamentally inconsistent
with our Nation's values.
Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Ms. Wright follows:]
Prepared Statement of Brenda Wright
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Mr. Chabot. Mr. Clegg, you're recognized for 5 minutes.
TESTIMONY OF ROGER CLEGG, VICE PRESIDENT AND GENERAL COUNSEL,
CENTER FOR EQUAL OPPORTUNITY
Mr. Clegg. Thank you very much, Mr. Chairman. I am
delighted to have the opportunity to testify before the
Subcommittee today.
I am going to focus, as my co-panelists have focused, on
the Bossier Parish decisions. But I also want to make clear
that I have problems with the whole notion of reauthorizing
section 5, and in my written testimony I go into more detail
about why I don't think that section 5 should be reauthorized.
And beyond that, I have other problems with the Voting
Rights Act, including the bilingual ballot provisions and the
results test in section 2. But I am not going to get into all
that; I will just leave that to my written testimony. And today
I will focus on the Bossier Parish decisions.
By way of background, let me make clear that the Voting
Rights Act really has two key provisions. The two most
prominent provisions are section 2 and section 5. Section 2
applies nationwide and bans any racially discriminatory voting
qualification or prerequisite to voting standard practice or
procedure.
Section 5, on the other hand, is not nationwide in scope.
Rather, it applies only to certain jurisdictions called
``covered jurisdictions,'' and it requires them to preclear
changes to voting qualifications and prerequisites to voting
with either the Justice Department or the U.S. District Court
for the District of Columbia.
As a practical matter, that means that most of these
changes are submitted to the Justice Department, and this
includes anything from a relatively minor change like moving a
voting booth across the street from the elementary school to a
high school, to undoubtedly major changes like redrawing a
State's congressional districts.
What the Supreme Court said in the two Reno v. Bossier
Parish School Board decisions was that these two statutes had
very different purposes and that, because section 5 is aimed at
changes in voting practices, it is violated only if the changes
are retrogressive. That is, the whole purpose of section 5 was
to enable the Justice Department to go after jurisdictions,
particularly in the covered jurisdictions in the Deep South,
that for years had stayed one step ahead of the people trying
to enforce the 15th amendment by making a series of changes--
you know, tiny changes to keep one step ahead of the law
enforcement officials.
What the Supreme Court said was that, well, since that was
the purpose of section 5, if a jurisdiction is not making a
change that is retrogressive, section 5 was not intended to
apply to it.
Now, I think that the Supreme Court was correct in its
interpretation of the language and intent of section 5, but of
course, that is not really the issue today. The issue today--
because you all can change section 5, obviously, to make it
clear if you think that the Supreme Court made a mistake. So
the question today is, should you want to change section 5 so
that, for instance, a potential violation of section 2
justifies a preclearance denial under section 5?
I think that would be a mistake. What my co-panelists are
assuming is that if the Justice Department thinks that a
jurisdiction acted with discriminatory purpose, that is proof
that it acted with discriminatory purpose. But that is not the
way, as a general matter, that our legal system works. Usually,
before we have a decision like that, both sides ought to be
able to argue their side of the case.
But when you have a section 5 denial, you just have one
side's opinion about that, without a trial or a formal hearing
or anything of that sort. And, as the Supreme Court recognized
in Bossier Parish II, section 5 contains, ``extraordinary
burden-shifting procedures.''
And while section 5 is normally aimed at a simple
determination of whether or not there was backsliding--the kind
of relatively technical and relatively straightforward factual
determination that can be left to a bureaucrat, rather than a
court of law--determining, for instance, whether there is a
section 2 violation is much more complicated than that. You
have to make a difficult legal appraisal, and you have to weigh
the ``totality of the circumstances.'' And that is something
that ought to be decided in congressional litigation rather
than by a low-level bureaucrat.
You know, it is one thing to give such an individual the
authority to hold up a change; it is something else to give a
person, an unelected official like that, the effective
authority to order changes where no changes had been made.
It can no longer be charged that all the Justice Department
is doing in that case is the kind of thing that section 5 was
intended to allow the Justice Department to do. If you all
insist on overturning Bossier Parish II, you run a substantial
risk of having--excuse me--of overturning Bossier Parish II,
you run a significant risk of having the new legislation, the
reauthorized section 5, struck down as unconstitutional.
In his opinion for the Court, in Bossier Parish II, Justice
Scalia wrote, ``Such a reading would also exacerbate the
substantial federalism concerns that the preclearance procedure
already exacts, perhaps to the extent of raising concerns about
section 5's constitutionality.''
Mr. Chabot. Mr. Clegg, are you about ready to wrap up?
Mr. Clegg. Yes, I am.
Mr. Chabot. Thank you.
Mr. Clegg. As a consequence, I think it would be a
mistake----
Mr. Chabot. The gentleman from New York would like you to
elaborate on that point.
Mr. Nadler. Why would that raise a constitutionality issue
on section 5, in your opinion?
Mr. Clegg. Because what the statute would then be doing
would be to give the Justice Department authority not just to
make a relatively technical determination of whether or not a
change in the voting procedure was retrogressive, but to make
it a determination, depending on whether you were overruling
Bossier I or Bossier II, if that was--there was a section 2
violation, or that a change, while not retrogressive, wasn't,
didn't go far enough to satisfy the Justice Department.
Let me give you an example.
Mr. Chabot. We can get into this in questioning. But if you
would like to wrap up your testimony because we want to keep on
track here.
Mr. Clegg. The only other point I was going to make, Mr.
Chairman, was to give one example of an unhappy side effect of
overturning the Bossier Parish decisions.
If the Justice Department refused to preclear a change that
actually diminished discrimination, but--and this I think
responds in part to what Mr. Nadler was getting at--but it
didn't go far enough, as far as the Justice Department was
concerned, and the reason it didn't go further, according to
the Justice Department, was because of some kind of
discriminatory animus, the denial would freeze in place a
procedure that was actually worse than what the jurisdiction
was proposing to change to.
It would be much better to allow the change to go into
place and make matters better, and then if the Justice
Department wanted to bring an additional section 2 lawsuit to
try to make things even better than that, they would have that
authority. That, I submit, is the better approach.
Thank you.
Mr. Chabot. Thank you very much.
[The prepared statement of Mr. Clegg follows:]
Prepared Statement of Roger Clegg
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Mr. Chabot. The gentleman, Mr. Gray, you're recognized for
5 minutes. Thank you.
TESTIMONY OF JEROME A. GRAY, STATE FIELD DIRECTOR, ALABAMA
DEMOCRATIC CONFERENCE
Mr. Gray. Thank you, Mr. Chairman.
Chairman Chabot and distinguished Committee Members, it is
a pleasure to have the opportunity to deliver this testimony
before you today on the topic of the ongoing need for section 5
of the 1965 Voting Rights Act.
Prior to my 67th birthday on July 20th, I had a senior
moment that moved me to consider drafting a resolution for our
organization the Alabama Democratic Conference, celebrating the
40th anniversary of the Voting Rights Act of 1965. And in
looking at that draft resolution, I was concerned about and
looking at the fact that the original act, passed with broad-
based bipartisan support and biracial support of the Members of
Congress and people of goodwill across America, who lobbied for
that to happen, it recognized the fact that the Voting Rights
Act contributed greatly to a new spirit of race relations and
cooperation and political and civic affairs in this country and
in our State.
And also, what I did, I drafted an op-ed piece that several
State newspapers picked up, and we challenged governments
around the State of Alabama to celebrate the 40th anniversary
of the Voting Rights Act, asking also to call for key
provisions of the Voting Rights Act to be renewed in 2007.
Today, I just brought for review one from Selma that I
picked up, where it all began, the resolution from the Selma
City Council, signed by the mayor and the members of the Selma
City Council, and also one from the Jefferson County
Commission, which is a biracial group, three Whites, two
Blacks, three Republicans, two Democrats.
I will see that this Committee receives copies of
resolutions that local governments around the State of Alabama
are passing in support of reauthorizing the Voting Rights Act
in 2007, so that you will see the record of evidence around the
State of Alabama of jurisdictions who are in favor of the
Voting Rights Act being renewed, particularly section 5.
Recently, our organization held a convention celebrating
the 40th anniversary of the Voting Rights Act, and we called--
one of the themes we had was a Marching Miracle Empowering a
Powerless People. Indeed, the Voting Rights Act has allowed the
State of Alabama to climb off the bottom in terms of racial
representation and fairness.
Forty years ago, Alabama had less than 12 Black elected
officials. Today, we have more than 850, and we rank along with
Mississippi, usually first and second, in terms of the number
of Black elected officials in the Nation. So it is really
important, you might say, to borrow a phrase from his novel,
Light in August, it has been 40 years of ``peaceful
astonishment.''
But we should not confuse the success with obsolescence. I
have personally witnessed one of the most astonishing things
about section 5 preclearance in terms of its ability to nudge
public officials to act in a positive way and to be more than
inclusive as they go about reaching a consensus in that
decision-making process. Let me cite an example or two to make
my point.
Two months ago the Barbour County Commission was in the
process of adopting a new redistricting plan. In the
preclearance process, the Department of Justice discovered that
the Barbour County Commission had never submitted some polling
place changes, dating back to the early 1990's. This delay in
submitting these changes in a timely fashion calls the Barbour
County Commission to seek out help in getting these late
submissions precleared.
One commissioner, who called me recently, is a car
salesman. I like his style. He said ``Jerome, buddy, can you
help us?'' When I told him I would, he replied, ``Buddy, come
see us.'' Without reservation, I can say that the Voting Rights
Act, section 5, in particular, has made unlikely buddies of
people who are ready, willing and able to communicate in a
civil, democratic way as we engage in the process of
representative government and full civic participation.
As we work through this issue of redistricting in Barbour
County, the Commission had originally drawn a seven-member plan
with three majority Black districts, one of which had a White
incumbent. In that district, the Commission's first instinct
was to draw a plan that reduced the Black voting age population
percentage by 8 percent. However, when I heard about their
plan, I called the Barbour County Commission and told them I
would fully support almost any plan they developed so long as
it did not retrogress or dilute the Black vote in these
majority Black districts.
At first they hemmed; then I hawed a little, using section
5 of the Voting Rights Act as my rabbit's foot. Soon thereafter
they invited me to help them in developing a fair plan. But I
had my role, and they had theirs from a distance; and I said to
them, You all can do it; just send me a copy of your plan when
you're done.
Well, you know what? They did better than I expected. And
true to my word, I wrote a strong letter of support to the
Department of Justice asking to grant expedited consideration
to the Barbour County redistricting plan in the preclearance
process.
For the record, I want to mention two more instances of how
the threat of section 5--what I call the rabbit's foot--being
used for good, has worked to get local governments to do the
right thing.
In the city of Lanette, Alabama, in Chambers County in
2004, I received a telephone call from a voter stating that the
city clerk had been denying citizens the opportunity to pick up
absentee ballot applications at city hall. Instead, the clerk
was usurping her authority and taking the application forms to
the voters' residences.
I called the clerk and read her a section from the Alabama
election law handbook. And I also indicated to her that she had
no authority to deny giving absentee ballot forms to a citizen.
I also told her that what she was doing amounted to a change in
voting procedure that would have to be precleared by the
Justice Department.
In my own way, I persuaded her that we did not need anyone
from the Department of Justice calling down to Alabama to tell
us what was right to do. She obliged, and the election ran
smoothly, and Lanette elected its first Black mayor in August
of 2004.
In my hometown of Evergreen, Alabama, in Conecuh County, I
received a similar call from a voter who complained about a
clerk's failure to produce a complete and fair voters list. At
first, many names were omitted including my 94-year-old mother,
a retired educator.
I called the clerk, and I got the former mayor on the
phone, and I reminded him of the election fiasco we had in 1980
when the clerk at the time had prepared a sloppy voters list
that omitted scores of Black voters from the official list. A
Black candidate that we supported that year lost by four votes,
and our organization, Democratic organization, NAACP,
complained to the Department of Justice, and the Justice
Department reviewed those complaints, found them to be
legitimate, and for the next election sent down some Federal
observers to monitor the election.
In that case, with section 5's help, we found out that the
Conecuh County Commission had changed its election system from
single-member districts to at-large elections after 1965 and
had not gotten them precleared. And we also learned that the
county Democratic Executive Committee had changed its election
procedure after the 1965 Voting Rights Act without submitting
those changes for preclearance.
At any rate, by reminding the clerk and the mayor about
what had happened in 1980, they acquiesced and allowed for a
fair voters list to be developed. The election went on without
incident, and the city of Evergreen had the highest turnout in
history, over 95 percent in 2004, and we elected our first
Black mayor without a runoff. It was indeed ``peaceful
astonishment.''
Although the issue of monitoring bad proposals such as
changes in registration, voting or election procedures has
decreased dramatically since 1982, there have been State laws
harmful to minority participation that have received our
attention. The worst one that I recall came about after a law
was passed in 1998, where voters could not receive an absentee
ballot at a post office box. That had not been precleared. We
went into Federal court with a three-judge panel, and they
struck that down as unconstitutional.
Earlier in my remarks I compared section 5 to a rabbit's
foot. I like that reference because it takes a little rabbit to
make folks do right. Then I urge you to keep some rabbit
provisions on the books. As a son of the South, I know that a
little rabbit ain't going to hurt nobody. We are used to it by
now.
Section 5 is edible and digestible. We have made tremendous
progress. But we still must work to protect Black voters, and
section 5 makes that possible.
Thank you.
Mr. Chabot. Thank you very much, Mr. Gray.
[The prepared statement of Mr. Gray follows:]
Prepared Statement of Jerome A. Gray
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Mr. Chabot. Before we get to the questioning round, let me
just mention a couple of housekeeping things. We were scheduled
to have another Voting Rights Act hearing tomorrow. Because of
the going to Detroit for Rosa Park's services, we will not have
that hearing; it will be next week. We have--at this point, we
have two on Tuesday and one on Wednesday.
I would also note that we have another hearing in this room
at 4 o'clock, as well, so if we can keep it to one round of
questions, in light of the number of hearings we will be
having, perhaps that might be a reasonable thing to do. I
appreciate that, because we will we have to clear the room and
get set up for the next hearing as well.
Mr. Chabot. At this time, the gentleman from New York.
Mr. Nadler. I would just point out that next Tuesday is
Election Day. Although there are no Congressional elections,
there are a number of elections in a number of States and
cities, and some Members may have to participate in those or
even go vote.
Mr. Chabot. If the gentleman would yield, I voted. I just
went to the Board of Elections before I caught my flight here
from Cincinnati and voted. I won't tell you how I voted, but I
did vote.
Mr. Nadler. You voted absentee ballot is how you voted.
Mr. Chabot. Yes, that is right. Okay.
I now recognize myself for 5 minutes for the purpose of
asking questions. I will just direct this to the whole panel
here. It is a couple of questions. You all to one degree or
another already dealt with this issue, but one of the main
things we are doing here is creating a record, because this may
ultimately--there could be a lawsuit that could end up with the
U.S. Supreme Court, and so we are trying to establish that
record here.
What does a weaker section 5 mean for minority voters, and
what does it mean for covered jurisdictions? Is the purpose
standard after Bossier II consistent with Congress' intent that
the Voting Rights Act end, this country end racial
discrimination in voting? I have 5 minutes, so about 1 minute
apiece would about take up my time. Mr. Posner, we will begin
with you and down the line.
Mr. Posner. Thank you, I think that a particular focus is
appropriate on redistrictings. Of course, as you well know,
redistricting is a key part of the election process, and
certainly a very significant change that is reviewed under the
Voting Rights Act.
In the 1990's, as I referred to in my testimony, as well as
the 1980's, a very large number of objections were interposed
by the Justice Department to redistrictings. About 7 percent of
the redistrictings were objected to, 8 percent in the 1980's
and 1990's. After 2000 about 1 percent, about 30 redistrictings
were objected to. So many fewer plans were objected to.
Section 5 had much less power and authority to prevent
discriminatory plans from going forward. That, of course, has a
very, very real impact on the opportunity of minority voters to
participate in the political process.
Mr. Chabot. Thank you. Ms. Wright.
Ms. Wright. The precedent that we had under section 5 for
35 years, prior to the Bossier Parish decision was really
unbroken. In each case when the Court had an opportunity to
consider it, the Court made it clear that regardless of
retrogression, any racially discriminatory purpose that would
violate the Constitution would also violate section 5.
I think that standard has been very important. The
Department has been applying it, was applying it for 35 years
prior to the Bossier Parish decision. It was a critical part of
the section 5 preclearance process, and as the numbers
indicate, in looking at the changes in the numbers and kinds of
objections since the Bossier Parish decision, has certainly had
a dramatic impact. All of that, I think, really argues for the
need to restore the intent test when Congress reauthorizes
section 5.
Mr. Chabot. Thank you.
Mr. Clegg.
Mr. Clegg. First of all, Mr. Chairman, I think you are
exactly right that these hearings are very important, because
there is likely to be a constitutional challenge on down the
road. In fact, one of the things that I would encourage the
Subcommittee to recommend to the full Committee is that there
be full Committee hearings as well, not only on the issue that
we are talking about today, but more generally on whether
section 5 ought to be reauthorized and the other issues that I
raised before.
You know, in terms of whether the Bossier Parish II
decision was consistent with Congressional intent, as I said, I
think that is really not the issue today. I mean, there's no
point in the Subcommittee trying to figure out what this
Subcommittee might have intended 40 years ago. What you all
need to decide is whether--when the section 5 is reauthorized,
if it is reauthorized--what the language should provide for
then.
In terms of what this means for, you know, minority voters,
I think if you decide to overturn Bossier Parish II, the answer
will depend on the whim of whoever is making the decision at
the Justice Department. If you have somebody that thinks that
there ought to be a maximization of influence districts, there
will be one set of results. If you have somebody that thinks
there ought to be a maximization of majority Black districts,
you will get another set of results. I don't know that either
one is--can be said beforehand to be--pro- or anti-minority.
Mr. Chabot. Thank you. Mr. Gray.
Mr. Gray. I would like to discuss it in terms of a case we
had, Dillard v. Crenshaw, where we sued a number of
jurisdictions throughout Alabama, school boards, city councils
and county commissions. We got the consent decrees in many of
those cases, in that case, to go to, in those instances, single
member districts. As a result, Blacks were elected to governing
bodies as a result of that lawsuit.
Unfortunately, in some of those localities, I would say
probably three dozen or more, they did not get the consent
decree codified. And the Federal judge in some of those
instances, in order to correct the violation, he recommended
that the number of districts be increased so that we would have
a majority Black district. Since then, though, there has been a
Supreme Court court case that says the judge can't do that.
So now we are stuck with the possibility of if we don't get
legislation, State legislation to codify those, the content
decrees that created those districts by increasing the number
of seats, all of those places will be in jeopardy. But because
before the lawsuit, the Dillard v. Crenshaw lawsuit, none of
those places had Black representation. So if you use the
Bossier II standard, all of those places where we did not have
Black representation where the number of seats, members on the
commission or county school board or city council were
increased, we would stand to lose representation, all of those
governing bodies, if the Bossier II standard is applied.
Mr. Chabot. Thank you very much, Mr. Gray. My time has
expired.
The gentleman from New York is recognized for 5 minutes.
Mr. Nadler. Thank you. Let me ask Mr. Posner and Ms.
Wright, with respect to redistricting, which is what we are
talking about, to a large extent in this Bossier II, if
Congress were to modify section 5 in response to Bossier II,
what issues, if any, arising from Shaw v. Reno and its prodigy
should we keep in mind? How does this affect it at all because
Shaw v. Reno was a constitutionalized statutory decision?
Mr. Posner. Well, Shaw v. Reno, as well as the subsequent
case of Miller, posed certain limitations on a jurisdiction's
ability to be race conscious in conducting the redistrictings.
However, the Court has also held that a justification for such
race consciousness is to avoid either a section 2 or a section
5 violation. So if section 5 prohibits--well, section 5 does
prohibit retrogression, and if section 5 again prohibits
discriminatory purpose, that is completely consistent with the
Shaw ruling.
Mr. Nadler. So it would change how a court would look at a
case in light of Shaw?
Mr. Posner. It may change how the Court considers the
justifications of the jurisdiction, but the jurisdiction even
now, under the Constitution, can't act with a discriminatory
purpose. So I think it would really just bring section 5 in
conformance with the Constitution, in terms of prohibiting a
discriminatory purpose as well as an effect.
Mr. Nadler. Thank you.
Ms. Wright.
Ms. Wright. I think that's right. The Shaw v. Reno
certainly did nothing to say that the traditional
constitutional protections against intentional racial
discrimination against minorities was somehow written out of
the Constitution. So I don't see anything inconsistent at all
between the idea of having an intent test, a meaningful intent
test under section 5, and the proper observance of the limits
that the court, that the Court indicated were required in Shaw
v. Reno.
I mean, I do understand that the Justice Department, after
the 2000 census, developed some guidelines for jurisdictions on
how the Department would take Shaw v. Reno into account and
reconcile the concerns about race conscious redistricting that
were there in Shaw v. Reno with the mandates of the Voting
Rights Act. So this is not something that I think poses any
apparent----
Mr. Nadler. You don't think this would change those
guidelines or would, in effect, have to take another look at
those guidelines?
Ms. Wright. No, I don't think so. I don't think so at all.
I think they were written with the idea that the intent test is
still part of section 5 probably.
Mr. Nadler. Mr. Clegg and Mr. Gray, the same question.
Mr. Clegg. I think that there are other constitutional
problems with overturning Bossier Parish II. You know, what I--
--
Mr. Nadler. Well, can you address the question?
Mr. Clegg. Right. But I don't think that an inconsistency
with Shaw v. Reno is one of the problems that I was talking
with respect to overturning Bossier Parish II.
I also think that where Shaw v. Reno does put limitations
on what Congress can do and what the Justice Department can do,
is if either section 2 or section 5 is being used to accomplish
racial gerrymandering of the sort that the Supreme Court said
was illegal in Shaw v. Reno.
Mr. Nadler. That will be ineffective. That would be
ineffective.
Mr. Clegg. That will remain unconstitutional. And as long
as section 5 and section 2 were not being interpreted or
written in a way----
Mr. Nadler. Okay. Thank you. Mr. Gray.
Mr. Gray. I don't think those two things are inconsistent.
You can change Bossier without that happening.
Mr. Nadler. Thank you. Mr. Posner, I have time for just one
more question, and Mr. Clegg.
Mr. Clegg asserts that objections under section 5 are
decided by low-level bureaucrats, I heard him say that in the
Justice Department. I thought the Assistant Attorney General
for Civil Rights, which is--it is a position requiring
confirmation by the Senate, has final authority over these
issues. Do you think it's fair--well, is that a fair
description, and court staff to review that?
Mr. Posner. Yes. The Department regulations require--the
Attorney General has delegated his authority under section 5 to
make decisions to the assistant attorney general, which, of
course, is a presidential appointment confirmed by the Senate.
Now the assistant attorney general, of course, can't
investigate the 13,000 to 17,000 voting changes that are
reviewed each year, the assistant attorney general has other
responsibilities as well.
So, naturally, just as in any other part of Government,
these voting changes are reviewed by career officials, which I
would say is actually beneficial, because these are career
officials who are non-political, and I think that helps to
ensure that the section 5 process is conducted in a non-
political fashion. But ultimately, any decision to object has
to be made by the assistant attorney general.
Mr. Chabot. The gentleman's time has expired.
Mr. Clegg, you can respond as well since Mr. Nadler asked
for a response.
Mr. Clegg. Well, I don't disagree with what Mr. Posner
said, in so far as, I think he admits that, with thousands and
thousands of these issues to review, as a practical matter the
decisions frequently are made by low-level bureaucrats. I don't
agree with Mr. Posner that just because somebody is not a
political appointee doesn't mean that they don't have political
views and prejudices.
Mr. Chabot. Thank you. The gentleman's time has expired.
The gentleman from Florida, the former Speaker of the House,
Mr. Feeney, is recognized for 5 minutes.
Mr. Feeney. Thank you, Mr. Chairman, Mr. Posner, while I
ask a question of Mr. Clegg, I would like you to look at
article I, section 4, clause 1, which I have outlined for you.
I would ask you a question about that next.
Mr. Clegg, one of the arguments that you make is an unhappy
side effect of overturning the Bossier decision, is that we are
likely to leave, in effect, an equally or more discriminatory
procedure or process. But isn't it true, with respect to
redistricting, at least since Baker v. Carr, after every
census, jurisdictions are pretty much required, if they have
single-member districts to redistrict.
So, in fact, there is always a fall-back position that
would require compliance with section 5, and you would not go
back to a system that was equally or more discriminatory in
redistricting situations.
Mr. Clegg. You know, I am not sure I agree with that even
in the narrow context of redistricting right after a census.
You know, suppose that you had a----
Mr. Feeney. Well, Congress for example, the Supreme Court
often requires the equivalent of zero deviation unless you have
a darn good justification. You can't very well get away with
keeping a plan for 20 years after a census comes out.
Mr. Clegg. I understand. But suppose that a jurisdiction
decided to redistrict in a way that increased the number of
majority-minority districts, but not enough to satisfy the
Justice Department. The point I was making was that it was the
Justice Department who would be better off--it would make more
sense for the system to be that, in that circumstance, the
improved system would be allowed to go forward--and if the
Justice Department thought that the reason an even better
system wasn't adopted was because of discriminatory intent they
could bring a section 2 lawsuit.
Mr. Feeney. I am going to interrupt, because I have limited
time. But the effect is virtually every jurisdiction has a
fallback position so they would come into compliance every 10
years with section 5 if they are precleared, they have a
commission or they have a court order. It gets bumped up to
Federal Court, because eventually you have to have lines
consistent with Baker v. Carr and consistent with the most
recent redistricting.
Mr. Posner, one of Mr. Clegg's, I think, important
arguments because Scalia does raise it in his decision, is the
federalism argument, that at least with respect to
congressional redistricting, under article 1, section 4, clause
1, which I just asked you to look at, basically State
legislators have been given by the Constitution directly, the
ability to prescribe the times, place and matter for
congressional redistricting. But the second clause says that
Congress may, at any time, by law, make or alter such
regulations. So hasn't the Constitution, in fact, expressly,
given Congress the ultimate ability to determine the times,
places and matters of Congressional redistricting?
Mr. Posner. Yes, but I guess the concern with regard to
section 5 is that typically, of course, State and local
jurisdictions can adopt a voting change or any other law, and
it's presumed legal, unless someone goes to court and obtains
an injunction. Section 5 reverses that situation because voting
changes are presumed unlawful until preclearance.
Mr. Feeney. I understand that Congress created section 5.
The Constitution says any time we want we can take back the
times, place and matter process for Congressional
redistricting. So at least with respect to Congress, my view is
that the federalism arguments actually are undermined by the
express language of the Constitution.
Mr. Posner, there is a law of statutory construction, which
basically preassumes that Congress isn't frivolous. Now often
in reality we are frivolous, but in certain language, there is
a reason for it. To the extent that the Bossier II decision
essentially makes the words or purpose superfluous, haven't
the--didn't the decision sort of violate that fundamental rule
of construction?
In all likelihood, shouldn't the Court have assumed that
Congress meant something by adding the words ``purpose'' in
section 5?
Mr. Posner. Absolutely. Certainly the thrust of my
testimony is that after the Bossier II decision, the purpose
test essentially has been read out of the statute.
Mr. Feeney. Along those lines, Mr. Chairman, if I could
have unanimous consent, your footnote 12, Mr. Posner, on page 4
of your testimony, cites a study by Peyton McCrary, Christopher
Seaman & Richard Valley, ``The End of Preclearance as We Knew
It.''
I think that would be important to submit for the record
because what that study demonstrates is that the Court's
decision has really neutered section 5, especially as it
relates to redistricting preclearance. So I would ask unanimous
consent that study be submitted as part of the record.
Mr. Chabot. Without objection, so ordered. The gentleman's
time has expired.
[The information referred to can be found in the Appendix.]
Mr. Chabot. The gentleman from Detroit--excuse me, the
gentleman from Michigan, the distinguished Ranking Member of
the Committee, Mr. Conyers, is recognized for 5 minutes.
Mr. Conyers. Thank you, Mr. Chairman. I appreciated the
testimony of the witnesses. This is, to me, getting to one of
the very most important decisions that we will be making in
reauthorizing the Voting Rights Act of 1965. I just wanted to
thank Mr. Clegg, counsel, for your candor, because you have
come out--and we don't have time for it. But you really feel
that the Voting Rights Act might be better off being
reconsidered entirely, whether we should go forward with it.
That being the case, you are the first witness that has
taken a position that extreme. I wasn't prepared for that. Your
testimony was pretty limited on the subject that brought us
here. But since you mentioned it, I wanted to let you know that
I had listened to your testimony carefully.
Now, the problem that we are wrestling with here is whether
there is a constitutional basis for turning Bossier II back,
which said that the Justice Department was essentially
powerless to block intentionally discriminatory voting changes,
unless it found the jurisdiction acted with the retrogressive
purpose of making things worse than they already were for
minority voters. Is that essentially the issue, Mr. Posner,
that brings us here today?
Mr. Posner. Well, that is certainly one of the issues, or
at least an issue that Justice Scalia raised in Bossier. It was
a very perplexing statement by him in the Bossier Parish II
decision since discriminatory purpose is always considered the
core prohibition of the 14th and 15th amendments. So to just
then turn around and say that having section 5 prohibit
discriminatory purpose, that would somehow threaten or question
the constitutionality of section 5, is just very hard to figure
out.
Mr. Conyers. Well, what constitutional considerations do we
need to take in--as we go about making this consideration--I
mean, this whole hearing really is, are we going to leave
Bossier II like it is and continue this construction of
preclearance, or are we going to turn it back the way it was
for several decades prior? Is that a simplification, but
correct interpretation of what we are doing here today in our
discussions and hearings.
Mr. Posner. Yes. I think there's a question of whether
section 5 or not, whether the section 5 nondiscrimination
standard is going to have some real authority and power to it,
and what it did, what existed prior to the Bossier II decision.
Mr. Conyers. Wouldn't we, Attorney Wright, be--well, I
don't know how we could come out of a 2005 hearing going
through section 5, again, and leaving Bossier untouched.
Ms. Wright. I agree. I would like to speak to the question
of Congressional power and authority that has been raised. I
think that it, if anything, is clear, it's that Congressional
power is at its zenith when Congress is addressing the problem
of intentional racial discrimination. That is at the core of
the 14th amendment, it's at the core of the 15th amendment, and
it's really difficult to imagine any other area where Congress
would have more plenary authority to take important
prophylactic measures such as section 5 has proven to be, to
assure that kind of discrimination does not affect the
electoral process.
Mr. Conyers. Are there any concerns, finally, that we might
want to take into consideration that we want to be careful
about? Because this is restorative. We are not adding anything
when we look at Bossier. We are just turning it back to the way
it had been.
Mr. Posner. Well, I think the one concern that I mentioned
in my testimony, is that the Supreme Court, or at least the
then five-Justice majority of the Court, expressed real concern
about the manner in which the purpose test was being
implemented by the Justice Department. I mean, I disagree with
their appraisal, but nonetheless, I think that this offers
Congress the opportunity as part of reversing Bossier II then--
to provide some advice and guidance to the Justice Department
and the District Court for the District of Columbia as to the
proper manner in which the purpose test should be applied.
In doing that, Congress would really be following the path
that it followed back in 1982 when Mobile v. Bolden was then
the case which Congress was seeking to legislatively reverse,
and Congress decided that not only should the statute
specifically go back to the standard that existed prior to
Mobile, but that it was necessary to, in the legislative
history, as well as in the statute, to provide guidance as to
how this test should be implemented.
Mr. Chabot. The gentleman's time has expired.
Mr. Conyers. Thank you, Mr. Posner.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman from Virginia, Mr.
Scott is recognized for 5 minutes.
Mr. Scott of Virginia. Thank you, Mr. Chairman.
Mr. Chairman, I want to follow up on what the gentleman
from Florida said in terms of redistricting plans. If you have
an illegal plan that is being rejected, you could end up with a
plan. You have to change because of one man, one vote and an
injunction could easily be obtained very cheaply if a State
tried to proceed on, within a 10-year cycle without a
redistricting plan.
So if you are caught with an illegal plan and try to get
something precleared, that may be better, but still illegal. It
just seems to me that section 5 is the most convenient place to
do it. Now, Mr. Clegg, you have suggested that changing it that
way would subject section 5 to constitutional challenge.
Mr. Clegg, could you give us a few Supreme Court cases that
we could review that would help us understand your decision--
position. You don't have to do it now.
Mr. Clegg. I am happy to address that. I think there may be
two different issues here though that we are talking about. The
fallback question with respect to a redistricting after census,
is whether the--what I am assuming is, that there is a
situation where the fallback may be worse than what the
jurisdiction has proposed going forward with, but that is not
as good as what the Justice Department would imply.
Mr. Scott of Virginia. You can't fall back. Once you have
submitted something, you have to have something. If the
fallback is going to be worse, that is not going to be
precleared either. So you cannot go forward with any plan. The
court is going to come in and draw the plan for you for the
next election. You are not going to be able to go backwards.
But in terms of the Constitutional challenge, could you provide
us with cases that would help us understand your position?
Mr. Clegg. Well, I think if I understood your question
correctly, Representative Scott, what I am raising as a
constitutional problem, and what I think Justice Scalia was
talking about in Bossier Parish II, was giving the Justice
Department unilateral authority to block a voting practice or
procedure that was not retrogressive.
Mr. Scott of Virginia. Could you give us cases to help us
on that? Names of cases. If you could submit those, I would
appreciate it.
Mr. Clegg. Sure. I am happy to do that. What I am going to
do is take the cases and the passage from Bossier Parish II.
Mr. Scott of Virginia. Okay. If that is your answer, that
is fine. Mr. Gray, you had been involved in campaigns for a
long time?
Mr. Gray. Yes.
Mr. Scott of Virginia. And helping people get elected?
Mr. Gray. Yes.
Mr. Scott of Virginia. Is there value in incumbency. Does
an incumbent have a better shot at getting elected?
Mr. Gray. Very much so.
Mr. Scott of Virginia. Okay. You have been involved in
section 5 cases?
Mr. Gray. Yes.
Mr. Scott of Virginia. Have you ever been involved in a
section 2 case?
Mr. Gray. Yes.
Mr. Scott of Virginia. What is the relative expense in a--
is a section 5 more or--cheaper or more expensive than in a
section 2.
Mr. Gray. Less costly, and you can fix the problem much
quicker.
Mr. Scott of Virginia. If you had to wait for section 2,
what kinds of costs are you talking about?
Mr. Gray. Many times, thousands of dollars. You are talking
about small jurisdictions and many times poor plaintiffs may be
impacted negatively. Many of them wouldn't be able to launch
the lawsuit any way.
Mr. Scott of Virginia. But they would be protected if they
tried--if someone tried to impose an illegal plan on a section
5.
Mr. Gray. Absolutely.
Mr. Scott of Virginia. They could fight it.
Mr. Gray. That's correct.
Mr. Scott of Virginia. But are unable to fight it if they
are relegated to section 2?
Mr. Gray. Absolutely, that's correct.
Mr. Scott of Virginia. And we don't go to--the fact that if
you don't fix Bossier II, the fact that there's an underlying
section 2 violation to begin with shows you that the community
didn't have the resources to fix it under section 2. They have
an opportunity under section 5, and they ought to fix it. Now
you have negotiated, obviously, redistricting plans?
Mr. Gray. Many.
Mr. Scott of Virginia. If you don't fix it, and you have an
area that never had any representation at all, and a fair
analysis suggests that it ought to be three, majority-minority
seats, if you have section 5, you can negotiate for 3.
Mr. Gray. Yes.
Mr. Scott of Virginia. If you don't have section 5 the way
we would like it to be, with Bossier II, you might get stuck
with 1 or 2 as the best you could do under negotiations, is
that true?
Mr. Gray. Right, or sometimes nothing.
Mr. Scott of Virginia. Because nothing is no worse than you
started off with.
Mr. Gray. That's correct.
Mr. Chabot. The gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Clegg, I have heard everything you said, and I
understand, I am just trying to figure out how we get past
this. One of the concerns you raised, I think, was that you
have a Justice Department, which is a bureaucracy, making a
factual determination or a determination, which theoretically
could be a concern.
The problem is that it's the jurisdiction that is
submitting the plan for preclearance that selects the venue to
which it submits it. It can either submit it to the Justice
Department for preclearance or it can submit it to a three-
judge court in the District of Columbia.
Would it help address your concern if it were a three-
judge--I mean, does that part of your concern go away with a
plan that is submitted to a three-judge court that has the
authority to make a factual determination, or you are still
equally troubled by that?
I mean, I can understand how you might be troubled by
having a bureaucracy make a decision. Does that help your
concern at all, or does it not?
Mr. Clegg. It does help. I think it is certainly less
problematic.
Mr. Watt. It is the jurisdiction that is seeking to
implement the new plan that has that choice. They can have a
factual determination by a court if they want to, right?
Mr. Clegg. That is true, although, you know, I think that
for the same reasons that my co-panelist was talking about,
it's probably a lot more expensive and slower and more
difficult to go the District Court route than the Justice
Department route.
Mr. Watt. You would rather that additional cost and
position be on the individual citizen as opposed to the State
or jurisdiction?
Mr. Clegg. I am not saying that the additional costs should
not necessarily be on either one.
Mr. Watt. You would rather leave things as they are?
Mr. Clegg. No. But I think what the--that the focus should
be on whether or not there is, in fact, a purposeful
discrimination. If you----
Mr. Watt. But that is--I am sitting here reading the 15th
amendment, section 1 says ``the right of citizens of the United
States to vote shall not be denied or abridged by the United
States or by any State on account of race, color or previous
condition of servitude.''
Section 2 says that Congress shall have power to enforce
this article by appropriate legislation. Now, I can't imagine
that you could be submitting to us that a local jurisdiction
makes an intentional decision to discriminate on the basis of
race, and that decision should go forward in the face of the
clear language of the 15th amendment.
Mr. Clegg. No, I----
Mr. Watt. So how would you--let's just put aside the more
difficult cases where you are making judgments about the extent
of the discrimination, but let's just assume the basic case, as
it was in Bossier, where the evidence was we intended not to
have minority representation, we intended to abridge the vote
of Black people. How would you address that without just
allowing it to go forward, the system gets put in place, you
got to have a vote before you can have a trial under section 2.
Tell me how you had address that in your world. I guess that's
the question I am asking. I am just perplexed.
I understand the concern you are raising, but I don't
understand how you would address that in a United States of
America where Black people and White people both are trying to
vote. I just don't understand how you would address it. Tell us
how to address it. I mean, that is what these purposes, these
hearings are about, to try to come up with some constructive
means of making our democracy work. Tell us how you would
address that.
Mr. Chabot. The gentleman's time has expired, but the
gentleman can respond to the question.
Mr. Clegg. All right. Well, I think there are a number of
questions in there. Let me go through them as best I can.
First of all, Congressman Watt, before I forget the
thought, the other problem that I have with your suggestion
that there's really no--there shouldn't be any objection to the
jurisdiction simply aside from going to court--is that under
section 5, even if it goes to court, there is still this--the
burden of proof in a quite extraordinary way, is shifted to the
jurisdiction. In other words, they have to go into court and
prove----
Mr. Watt. The burden of proof in Bossier Parish was they
came in and said we intended to do this. Are you saying that
they ought to be allowed to do that?
Mr. Clegg. No. So the first point I would make is that
although I have fewer problems if the decisionmaker is a court,
the Supreme Court itself has said that the burden shifting
provisions in section 5, and those apply to court hearings, as
well as to, you know, going through the Justice Department, are
part of what raises these federalism concerns that I was
alluding to.
Mr. Watt. Federalism concerns are more dramatic than the
express provisions of the 15th amendment?
Mr. Clegg. Well, again, Congressman, your assumption is
that because the Justice Department thinks----
Mr. Watt. Oh no, I am talking about the three-judge court.
I gave you that out.
Mr. Clegg. Look. I think if you had a--and are you also
giving me the out that there is also no longer any burden
shifting?
Mr. Watt. No.
Mr. Clegg. Because if you do that, then it is starting to
look a lot like a section 2 lawsuit.
Mr. Watt. So they got it pretty clear, I mean, if you got
to have the--but you got to have a disposition quickly. I guess
that is why I kept asking what is your solution to this. You
need a quick disposition so the election can go forward. You
don't want people to intentionally discriminate. You want a
decision quick. You want to not have the extra expense. You
know, it seems to me that what Congress did was set up a system
to accommodate all of those things, and you seem to be
advocating for a different system, and I keep wondering what
that system is.
Mr. Clegg. Believe me, I will look into that, and I
appreciate the opportunity. Let me also say though,
particularly with respect to Bossier Parish--you know, I did
not litigate the case. But it says here that the court, the
lower court in that case, concluded that there was no evidence
of discriminatory but nonretrogressive purpose.
So I questioned, you know, the factual premise there. But
there could be situations where there was such a finding. I
don't dispute that.
All right, now, your $64,000 question, what would I do? I
would continue to have a Voting Rights Act. I am not that
radical. Many of the provisions about having examiners and poll
watchers and that sort of thing make perfect sense and ought to
be continued--you know, no literacy tests and a lot of those
things in section 4.
I think that we ought to have a second section 2, but I
would change section 2, so that it tracks the language that you
so eloquently read from the 15th amendment, so that it is
prohibiting the kinds of racial discrimination that are
prohibited by the 15th amendment, but not pushing jurisdictions
to racially gerrymander, which is unfortunately what I think
what the results test does.
Then, in terms of section 5, I think that there should be
full hearings before the full Committee. You all should ask a
couple of questions. Number 1, should the way that covered
jurisdictions are defined----
Mr. Watt. But before you go there, you finally worked your
way into the same position, I think, that Mr. Posner was.
Mr. Chabot. The gentleman's time has long since expired.
But could he be brief?
Mr. Watt. All right. I just wanted him to know that he was
surprisingly close to Mr. Posner by the time he got through
with that part of his presentation. I didn't mean to interrupt
him.
Mr. Chabot. Mr. Clegg, have you had an opportunity to
finish your thought?
Mr. Clegg. It think the only other thing I would say, Mr.
Chairman, is I would make sure that the covered jurisdictions
are accurately described, because I think that what--the
jurisdictions that it made sense to cover 40 years ago may not
be if same jurisdictions that ought to be covered now. I would
use a purpose test rather than an effects test for section 5 as
well.
Mr. Chabot. The gentleman's time has expired. I would ask
unanimous consent that the gentleman from Georgia be extended 5
minutes to ask questions. Hearing no objection, the gentleman
has 5 minutes.
Mr. Scott of Georgia. Thank you very much.
Mr. Chairman, again I appreciate your kindness and
generosity in allowing me to ask questions and participate on
the question.
I think, Mr. Clegg, you have laid bare, I think, the
seriousness of the challenge to this Voting Rights Act. Prior
to your testimony, I did not really realize how in jeopardy the
Voting Rights Act is. I think that it's very important for us
to use this hearing to set as much of a record as we can to
your basic argument on the constitutionality of this. I think
that Bossier is indeed like a cancer, eating away at the Voting
Rights Act.
Would you not agree that the best argument for us going
forward is to go directly to the 15th amendment and to
illustrate point by point just how Bossier has acted to deny
and abridge an individual's right to vote based upon race,
based upon background, servitude, as so eloquently stated by my
colleague, Mr. Watt from North Carolina?
Mr. Clegg. That is absolutely right.
Mr. Scott of Georgia. With that in mind, could I not go to
you, Ms. Wright, and to you, Mr. Posner and to you,
Mr. Gray, and take the remaining moments that I have, of
trying to get on record directly examples of how this does, in
fact, abridge an act against the 15th amendment?
One point, if I may add to that, just to start us off is,
is this not true that prior to Bossier, the Justice Department
objected to about 8 to 9 percent of the cases that came before
them? Since Bossier, they have objected to only 1 percent. I
think that is some damaging evidence in itself.
But if I could just allow the rest of my time,
Mr. Chairman, if Ms. Wright and Mr. Posner and Mr. Gray
could give us some specific examples of how this, indeed, could
violate the 15th amendment.
Ms. Wright. Well, I think that probably the most vivid
example was the one that I gave during my testimony of the
impact this decision would have had if it had been in effect in
the 1980 on the creation of Congressman Lewis' district.
Mr. Scott of Georgia. Of Georgia?
Ms. Wright. Yes. Where there was outright evidence that the
head of the redistricting committee was routinely describing
African-Americans in his State using racial epithets and
declaring that he would never create such a district.
Mr. Scott of Georgia. I might add that I was there as a
member of the Georgia legislature when that happened. You are
absolutely correct.
Ms. Wright. You have insight to this. I would also add is
very important, the misconception that has been put forward
here if you have an intent that is being administered by the
Justice Department, that is somehow a standardless test,
nothing could be further from the truth.
The standards for examining whether a change is
intentionally discriminatory are very well established. You
follow the set of factors that is listed in the case of
Arlington Heights in 1977, the Supreme Court decision, which
has a set of factors that you look at, including the impact of
the decision on racial minorities, the sequence of events
leading up to the decision to enact the change, the degree to
which the jurisdiction departed from normal procedures in the
course of its decisionmaking and a variety of other factors
that are very well established and which the Justice Department
used very successfully for 35 years routinely to examine these
kinds of changes, and only objected in a very small percentage
of the overall number of submissions that came to the Justice
Department.
But in those cases where the Justice Department did object,
the preclearance requirement and the intents standard played an
absolutely crucial role in bringing us to where we are today,
which is a lot of progress compared to where we were 40 years
ago.
Mr. Scott of Georgia. Mr. Posner.
Mr. Posner. As I indicated in my written testimony, the
purpose test first began to be enforced under section 5 with
real vigor when Assistant Attorney General Reynolds was in
charge of the Civil Rights Division. It first began with
objections to about 25 redistrictings based upon discriminatory
purpose, 25 redistrictings by county governing boards in
Mississippi.
Often the situation that existed with regard to the
redistrictings that were objected to was that the Black
population was concentrated in one city located more or less in
the center of the county. And the plan that was submitted by
the county board of supervisors, what it did was draw each
district into that city, so that you had five districts weaving
their way into the Black population located in that city,
fragmenting that Black population among the four, five
districts, thereby significantly minimizing the opportunity of
Black voters to elect candidates by choice, in fact, preventing
Black voters in counties with significant Black populations
from electing any member of the county board of supervisor,
county board of supervisors.
As a result of these objections, these purpose objections
by the Justice Department, the county, of course, couldn't then
go back to the old plan as was indicated. The county had to
adopt a new redistricting plan, and that was mandated by one
person, one vote. The county adopted new plans that did not
fragment Black population in this manner, and thereby giving
Black voters significant opportunities to elect candidates of
their choice onto the boards of supervisors.
Mr. Chabot. The gentleman's time has expired. Mr. Gray, I
think you were asked to respond. Would you like to respond?
Mr. Gray. Yes. I do not see making sense for discriminatory
intent to be allowed in any instance, but in one county in
Alabama that was part of that redistricting loss, Chilton
County, where they had agreed to a cumulative vote system that
with seven seats on the council, and on the county commission
and on the county school board, on the county commission they
have had add least three or four voting cycles using cumulative
voting. That system was challenged by some plaintiffs in the
county.
Now what they are asking to do is to go back to what they
had prior to the lawsuit, where we were able to get a Black
member elected to the Chilton County Commission using
cumulative voting. If we apply the Bossier standard, if you go
back to what they had prior to the lawsuit, there would be no
opportunity for Blacks to have representation because the Black
percentage in the county is not high enough to create districts
with, say, four or five seats, which they had four or five
members, which they had prior to the lawsuit.
So Blacks will be shut out. If you said the standard that
they would be allowed to use, would be what they had prior to
the lawsuit, then Blacks in Chilton County would never have
representation on the county commission.
Mr. Chabot. The gentleman's time has expired.
Mr. Feeney. Mr. Chairman, I wonder if I might request
unanimous consent for 1 minute to ask a question.
Mr. Chabot. Without objection.
Mr. Feeney. Thank you. This really goes to anybody. I
argued earlier that Congress, at least intentionally, shouldn't
act with frivolity, but I am going to go ahead and just do
that. I have been trying to build a record, I think, with most
of my colleagues here--and by the way, Mr. Chairman, it doesn't
feel that bad being outnumbered on a partisan basis. We have
for most of these hearings, at least on this issue.
But to be frivolous for a few seconds, if you have a few
minutes, Mr. Posner, you served with Chief Justice Roberts in
the Justice Department. He probably has at least a passing
familiarity with the enforcement of the Voting Rights Act.
I just wanted to know whether Mr. Posner or anybody else,
something beyond superstition or a hunch, had any guesses as to
where Chief Justice Roberts or potential Justice Alito comes
down on the constitutional issues. We have got three Justices
that believe in equal protection or federalism are implicated,
that being Thomas, Scalia and the now-deceased Rehnquist. We
have had Kennedy sort of align, for the most part, with those
Justices, and O'Connor has always been a court of one for the
last 10, 15 years on these issues.
Does anybody have any guess for us that they want to make
based on some sort of evidence. Mr. Posner, I would love to
here what, if anything, you are willing to tell us.
Mr. Posner. Well, the Chief Justice was serving in a
different part of the Department than I was. So I didn't have
any personal contact with him when he was a member of the
Department.
It is very difficult to guess. He has indicated that he has
great respect for stare decisis, that he believes in that
principle and the importance of that principle. The Supreme
Court has, on at least two occasions, upheld the
constitutionality of section 5. The Court was well aware of the
federalism issue, but thought that the 15th amendment issue,
the 15th amendment concerns in terms of the right to vote, as
well as the record that Congress established in terms of
justifying section 5, meant that that section 5 should be
upheld as being constitutional.
So I think we go back to the record that Congress is trying
to establish. I think that is critical in showing that there is
a continuing need for section 5. But predicting a vote is, of
course, a very difficult thing to do.
Mr. Chabot. The gentleman's time has expired. Anyone else
want to weigh in on that?
Ms. Wright. I also would be reluctant to speculate about
the vote of an individual Justice, but would emphasize but no
matter who is on the Court, it certainly is of the most
critical importance of this Committee to do as thorough a job
as possible in examining what the Voting Rights Act has
accomplished in the covered jurisdictions, what the continuing
problems are, what the likely effect would be, if its
protections were removed.
I think we have already gone a long way toward doing that
in some of the testimony that I have seen so far in some of
these hearings. But there is certainly a lot more that can and
should be done to document the record of discrimination and
voting rights enforcement in the covered jurisdictions. That is
critically important no matter who is on the Court.
Mr. Chabot. Thank you. Anybody else? Mr. Clegg.
Mr. Clegg. I agree that there are going to be at least five
Justices who are going to be very sensitive to these federalism
concerns and to wanting to make sure that the Congress is
acting pursuant to its enumerated powers. So however you think
you are going to come down, you need to be careful and have the
full hearings. I think also, you know, come into them with, you
know, an open mind, not with a verdict first, trial afterwards-
type mind set, this is a matter of policy, doesn't make sense
to keep the statute in exactly the same defining--covered
jurisdictions in exactly the same day.
Mr. Chabot. Mr. Gray, do you want to gaze into the crystal
ball here?
Mr. Gray. No. I am not going to venture on that one.
Mr. Chabot. At least you won't be wrong. Okay.
Thank you very much. I want to thank the whole panel for
their very excellent testimony here this afternoon.
I want to, once again, mention that we need to clear this
room as expeditiously as possible, because we do have a hearing
starting in 6 minutes on an entirely different issue here.
If there's no further business to come before the
Committee, we are adjourned.
[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Appendix to the Statement of Brenda Wright: Testimony of Brenda Wright
before the National Commission on the Voting Rights Act, October 29,
2005
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Appendix to the Statement of Brenda Wright: Letter from Isabelle
Pinzler, Acting Assistant Attorney General, Civil Rights Division,
Department of Justice, to Sandra Shelson, Esq., Special Assistant
Attorney General, State of Mississippi
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Appendix to the Statement of Brenda Wright:
Young v. Fordice 520 U.S. 273 (1997)
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Appendix to the Statement of Roger Clegg: Letter from Roger Clegg to
the Honorable Robert C. Scott, November 2, 2005
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Peyton McCrary, et al., ``The End of Preclearance As We Knew It: How
the Supreme Court Transformed Section 5 of the Voting Rights Act''
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Reno v. Bossier Parish School Board (520 U.S. 471, 117 S.Ct. 1491)
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Reno v. Bossier Parish School Board (528 U.S. 320, 120 S.Ct. 866)
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