<DOC>
[109th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:27334.wais]
FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT
REAUTHORIZATION AND AMENDMENTS ACT OF 2006 (PART I)
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 9
__________
MAY 4, 2006
__________
Serial No. 109-101
__________
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
----------
MAY 4, 2006
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 Robert C. Scott, a Representative in Congress from
the State of Virginia, 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................................................... 4
The Honorable Melvin L. Watt, a Representative in Congress from
the State of North Carolina, and Member, Subcommittee on the
Constitution................................................... 5
The Honorable Chris Van Hollen, a Representative in Congress from
the State of Maryland, and Member, Subcommittee on the
Constitution................................................... 7
The Honorable Linda T. Sanchez, a Representative in Congress from
the State of California, and Member, Committee on the Judiciary 7
WITNESSES
Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division,
Department of Justice
Oral Testimony................................................. 9
Prepared Statement............................................. 11
Mr. Roger Clegg, President and General Counsel, Center for Equal
Opportunity
Oral Testimony................................................. 13
Prepared Statement............................................. 16
Mr. Debo P. Adegbile, Associate Director of Litigation, NAACP
Legal Defense and Educational Fund, Inc.
Oral Testimony................................................. 38
Prepared Statement............................................. 40
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, and
Member, Subcommittee on the Constitution....................... 73
Prepared Statement of the Honorable Melvin L. Watt, a
Representative in Congress from the State of North Carolina,
and Member, Subcommittee on the Constitution................... 73
Prepared Statement of the Honorable John Lewis, a Representative
in Congress from the State of Georgia.......................... 75
Prepared Statement of the Honorable William J. Jefferson, a
Representative in Congress from the State of Louisiana......... 77
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Alaska, Michigan, New Hampshire, and South
Dakota......................................................... 79
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in California.................................. 107
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Arkansas.................................... 132
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Oklahoma.................................... 153
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Mississippi................................. 177
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in New York.................................... 203
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Tennessee................................... 235
Prepared Statement of the Honorable J.C. Watts, Jr............... 258
Prepared Statement of Jan Tyler, former Denver Election
Commissioner................................................... 264
Ana Henderson and Christopher Edley, Jr., ``Voting Rights Act
Reauthorization: Research-Based Recommendations to Improve
Voting Access,'' Chief Justice Earl Warren Institute on Race,
Ethnicity and Diversity........................................ 266
FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT
REAUTHORIZATION AND AMENDMENTS ACT OF 2006 (PART I)
----------
THURSDAY, MAY 4, 2006
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 9:07 a.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot (Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. This is the
Subcommittee on the Constitution.
Good morning. We want to thank everyone for being here
today. This is the Subcommittee on the Constitution, as I
mentioned. This morning marks an important step for this
Committee as it continues its examination of the Voting Rights
Act of 1965 and the temporary provisions that are set to expire
on August 6, 2007.
Last fall, over the course of nine hearings, this
Subcommittee examined in great detail each of the temporary
provisions of the Voting Rights Act currently set to expire.
With regard to sections 5 and 203, we held multiple hearings to
ensure that all of the issues raised were addressed. This past
March, we held an additional hearing to incorporate into the
Committee's record a series of individual State and national
reports documenting the continuing problem of racial
discrimination in voting in the last 25 years and the necessity
of the temporary provisions to protect minority voters in this
Nation.
Today we have before us H.R. 9, the ``Voting Rights Act
Reauthorization and Amendments Act of 2006,'' the product of
this Committee's work over the last 7 months.
I'd like to take a moment to thank my colleagues and those
in the audience, who have been with us from the start, for
their dedication and commitment to get us where we are today.
In keeping with the bipartisan spirit of our hearings and
previous reauthorizations, I'm proud to say that H.R. 9 is,
again, the result of a bipartisan effort.
H.R. 9 extends the temporary provisions of the Voting
Rights Act for an additional 25 years. In addition, H.R. 9
makes changes to certain provisions, including restoring the
original purpose of section 5. In reauthorizing the temporary
provisions, the Committee heard from several witnesses who
testified about voter discrimination that currently exists in
covered jurisdictions.
It is on this evidence that the Committee considers it
necessary to continue the temporary provisions for another 25
years. I believe it's important to note that in reauthorizing
the temporary provisions the Supreme Court, in South Carolina
v. Katzenbach and later in City of Rome v. United States,
upheld Congress's broad authority under section 2 of the 15th
amendment to use the temporary provisions to address the
problem of racial discrimination in voting in certain
jurisdictions. With H.R. 9, Congress again invokes its
authority under section 2 in order to appropriately address the
continued problem of discrimination in voting that is revealed
in the record before it.
In addition to reauthorizing, the Committee finds it
necessary to make certain changes to ensure that the provisions
of the Voting Rights Act remain effective. For example,
testimony received by the Committee indicates that Federal
examiners have not been used in the last 20 years, but Federal
observers continue to provide vital oversight. H.R. 9 strikes
the Federal examiner provisions while retaining the authority
of the Attorney General to assign Federal observers to covered
jurisdictions over the next 25 years.
In addition, H.R. 9 provides for the recovery of expert
costs as part of attorney fees. This change brings the Voting
Rights Act in line with current civil rights laws, which
already allow for the recovery of such costs.
H.R. 9 also makes technical changes to section 203, which
will be discussed later this afternoon in a separate hearing.
That hearing is at 2 o'clock this afternoon.
Most importantly, H.R. 9 seeks to restore the original
purpose to section 5. Beginning in 2000, the Supreme Court, in
Reno v. Bossier Parish, and later, in 2003, in the case of
Georgia v. Ashcroft, issued decisions that significantly
altered section 5. H.R. 9 clarifies Congress's original intent
with regard to section 5.
This morning we will hear from our witnesses and discuss
those provisions of the bill that address sections 4 through 8,
the trigger, bailout, preclearance, and observer provisions,
and section 14, which addresses the issue of attorney fees, of
the Voting Rights Act. This afternoon we will devote our
discussion to the provisions of the bill that reauthorizes and
amends section 203.
I'd like to welcome and thank our witnesses here this
morning, as well as our distinguished guests who are sitting
with us on the dais this morning. None of the guests are here
yet, so we won't recognize them at this time.
The gentleman from New York, Mr. Nadler, the Ranking
Member, is not here. The very distinguished gentleman from
Virginia, Mr. Scott, is here, and would he like to make an
opening statement?
Mr. Scott. Thank you, Mr. Chairman. Representative Nadler
wanted to be here but was unavoidably detained and asked me to
sit in on his behalf. He's a strong supporter of the Voting
Rights Act and regretted that he couldn't be here today.
But it's been 40 years since passage of the Voting Rights
Act, and that act has guarantees millions of Americans equal
opportunity to participate in the political process. The genius
of the act was not simply that it outlawed discrimination at
the ballot box; it also gave voters new tools to ensure
fundamental fairness in the voting process.
In past years, Congress has recognized the tenacious grip
of discrimination in voting and we've continued to reauthorize
the sections that will be discussed here today. These expiring
provisions are essential to ensuring fairness in our political
process and equal opportunity for minorities in America.
From the initial passage of the Voting Rights Act, Congress
has relied on an extensive record of discrimination in voting
to justify the continuing needs for the remedies imposed by the
expiring provisions. In the original enactment of the Voting
Rights Act and subsequent reauthorizations, Congress made sure
that the Voting Rights Act remedies were proportionate to the
problems Congress sought to cure.
In October of last year, we began the task of building a
record to ascertain whether or not there was an ongoing need
for these provisions. Through hearings in the Committee and
field hearings conducted by many of the groups represented here
on the panel, we have been able to build a clear and convincing
record that there is a continuing need for the expiring
provisions in the bill.
The temptation to manipulate the law in ways that will
disadvantage minority voters is great, as great and
irresistible today as it was in 1982. There are many specific
issues that need to be addressed, including the clear need for
section 5 in light of the inadequate remedies provided under
section 2. Section 5 must be reauthorized to continue blocking
the implementation of discriminatory voting changes, whether by
deterring jurisdictions from enacting the discriminatory law in
the first place or by routinely blocking those changes in the
courts.
In the absence of section 5, a new State law can only be
challenged in the time-consuming, vote-dilution litigation
under section 2, where minority plaintiffs bear the burden of
proof and, from a practical point of view and more
significantly, they also suffer the burden of expenses in
bringing the case.
The Supreme Court has ruled that winning parties in civil
rights cases cannot recover expert witness fees as part of
recoverable costs that they are entitled to receive, and this
creates a chilling effect on voting rights litigation because
it prevents lawyers and nonprofit organizations from recovering
tens of thousands of dollars, sometimes hundreds of thousands
of dollars, in expert witness fees.
During the reauthorization process, we were able to
consider the impact of Georgia v. Ashcroft on section 5.
According to the Court, the ability to elect is ``important''
and ``integral,'' but a court must now consider the ability to
``influence and elect sympathetic representatives.'' Although
this consideration under the facts of Georgia v. Ashcroft may
not have caused a problem because a majority found that the
number of minority-majority districts was not reduced--dicta in
the case clearly suggests that there may not be a violation of
districts in which minority voters can elect candidates of
choice--or dismantled, creating some ill-defined list of
influenced districts.
The reauthorization and legislative history of section 5
must make it clear that this portion of the Voting Rights Act
has been enacted to ensure that minority voters, where
possible, ought to be able to elect candidates of choice.
Influence in coalition districts will of course be a
consideration in evaluation of the total plan, but the primary
evaluation will be districts in which minority voters are able
to elect candidates of choice.
Our record reflects a continuing need for these expiring
provisions. At a time when America has staked so much of its
international reputation on the need to spread democracy around
the world, we must ensure its vitality here at home. H.R. 9
does just that.
Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much.
Mr. Franks, did you wish to make an opening statement?
Mr. Franks. No.
Mr. Chabot. Do any other Members wish to make an opening
statement? The gentleman from Michigan, the distinguished
Ranking Member of the full Committee, Mr. Conyers, is
recognized.
Mr. Conyers. Thank you, Mr. Chairman. I'll put my statement
in the record, but I am impressed that this Committee has
probably done the kind of a job that I think will stand the
scrutiny of history and that will also be commended for the
fair way that we examine the problems that are connected with
the reauthorization of this Voting Rights Act.
We've broken our examination down before the introduction
of H.R. 9 into a couple fundamental questions: Is there an
adequate record of discrimination to justify reauthorizing the
expiring provisions; and, Are the expiring provisions, as
interpreted by the courts, still adequate to protect the rights
of minority voters? And these are the questions that have
guided us.
I think there is an ample record through at least nine
hearings. And now as we go through the actual bill that has
been introduced, on a bipartisan basis, I think that we should
applaud you, Mr. Chairman, in the way that you have conducted a
very thorough set of hearings that I think will stand the test
of time.
Mr. Chabot. Thank you very much.
Mr. Conyers. The fact of the matter is that the questions
that we are examining now will further help us. I welcome the
witnesses back again who have participated and have helped us.
We need to make sure that it is understood that circumstantial
evidence in dealing with intentional discrimination is a very
important part of the way we interpret the law.
We also need to realize that the changes that have been
made to deal with court interpretation previously has been done
before at other reauthorization hearings. And so this is
nothing particularly new.
But I think that we might be well-advised that we've gone
neither too far or left anything undone. I don't think that
this was a pro-Voting Rights extension exercise and that
everybody was cut out, because that's not the case. We've had
balanced discussion, we've welcomed criticism from all
quarters, we've examined every theory, plausible objection, and
we continue to do it in the hearings that remain on the bill
itself.
So to me, I think there's been an excellent job done. I
feel confident that we will be in the best circumstances to
face a Court which we are not sure of where they will be going.
There are many on the Court whose exact position on some of
these questions is not clear or is unknown to us as we put
together, from everything that we've been able to see, hear,
examine, interpret, and also take from circumstantial evidence,
the very fact that there's a need for the Voting Rights Act to
be improved and continued.
It's a huge job at a very difficult period of legislative
time. I want to just let everyone know, each Member of the
Committee. I single out Mel Watt, who has taken on an
extraordinary role in this regard. The Chairman of the full
Committee has worked with every recommendation, every
improvement that we've sought in the process, Jim
Sensenbrenner. And so I come here fully satisfied that these
discussions, these witnesses, the evidence that has been
produced for this very voluminous record will be able to
withstand the exacting scrutiny of the courts that will be
called upon to evaluate it in the future.
I thank you very much.
Mr. Chabot. Thank you.
The gentleman from Virginia, Mr. Scott, is recognized out
of order.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I just
wanted to follow up on the comments just made by the gentleman
from Michigan.
As you indicated in your comments, this has been a work, a
bipartisan work that you and Ranking Member Nadler worked very
well together. The Chairman of the Black Caucus, Mr. Watt, did
a yeoman's job in working with all of the different groups. Mr.
Sensenbrenner, the Chairman of the full Committee, and Mr.
Conyers. And working with the Senate. This has been a
tremendous job. We've developed a record that I think is a
model for bipartisan cooperation that I think, hopefully, we
would see before.
But I would want to signal particularly focus on the job
that Chairman of the Black Caucus Mel Watt from North Carolina
has done in working with this. It has not been an easy job.
He's been criticized by everybody. But I think the final
product is a testimony of his good work and resolve and
willingness to take arrows from both sides and put together a
bill that I think everybody can be proud of.
Mr. Chabot. Just let the record note that I haven't
criticized him. [Laughter.]
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
I could certainly take more than my 5 minutes that I have
here to just thank people. I think I will refrain from doing
that on this occasion, except to re-extend the thanks that I
made to you and Ranking Member Nadler for sitting through all
of these hearings and developing the record, which I think will
be so important as we move forward; and to extend thanks again
to Ranking Member Conyers for having the confidence in me to
allow me to proceed as his representative in the negotiations
about the bill.
I could certainly spend more than my 5 minutes summarizing
the bill that we have arrived at. I think it is thorough and
good, but Mr. Scott has done a magnificent job of doing that
summary. Or I could spend more than my 5 minutes reading this
eloquent statement that my staff has prepared for me. I think I
will submit that for the record also.
What I thought might be helpful to us, though, to set the
stage, is to let you know that I have been preparing to give a
commencement speech at Fisk University, which is the school
from which, after John Lewis, our colleague and moral leader in
this fight, went to jail, and it took him a long time to get
through to graduation. But he did graduate from Fisk
University, and I'm doing the commencement address there. And
it's given me the occasion to go back and reread some excerpts
from the book that John Lewis has written called ``Walking With
the Wind.''
And I can't think of really a better backdrop to this
discussion or to our pending markup as we go forward than to
just read this atmosphere that people were operating in leading
up to the passage of the Voting Rights Act. This is from page
326 of John Lewis's book, ``Walking With the Wind'':
``When we reached the crest of the bridge, I stopped dead
still. So did Josea. There, facing us at the bottom of the
other side, stood a sea of blue-helmeted, blue-uniformed
Alabama State Troopers, line after line of them, dozens of
battle-ready lawmen stretching from one side of U.S. Highway 80
to the other. Behind them were several dozen more armed men,
Sheriff Clark's posse--some on horseback, all wearing khaki
clothing, many carrying clubs the size of baseball bats.
``On one side of the road I could see a crowd of about a
hundred Whites laughing and hollering, waving Confederate
flags. Beyond them, at a safe distance, stood a small, silent
group of Black people. I could see a crowd of newsmen and
reporters gathered in the parking lot of a Pontiac dealership.
And I could see a line of Park Police and State Trooper
vehicles. I didn't know it at the time, but Clark and Lingo
were in one of those cars.
``It was a drop of 100 feet from the top of the bridge to
the river below. Josea glanced down at the muddy water and
said, `Can you swim?' `No,' I answered. `Well,' he said with a
tiny half-smile, `neither can I.' `But,' he added, lifting his
head and looking straight ahead,` we might have to today.'
``Then we moved forward. The only sounds were our footsteps
on the bridge and the snorting of a horse ahead of us.''
Mr. Chairman, this is how we got here, this historical
backdrop against which we were operating, in which President
Johnson and those brave people, Members of Congress, enacted
the original voting rights law. We've come a long way since
then, but our record demonstrates amply, more than amply, that
we still have a long way to go. And we have to keep on this
mission at this basic democratic level--``democratic'' with a
small ``d''--ensuring that every single citizen has the right
to participate and have their voices heard in the political
process. That's what this has been about.
I want to thank everybody who has been involved in this. I
hope we can move forward to finish this job with this bill.
Thank you so much.
Mr. Chabot. Thank you very much for that particularly
gripping opening statement. We appreciate you sharing
Congressman Lewis's book with us.
The gentleman from Maryland, Mr. Van Hollen, is recognized,
if he'd like to make an opening statement.
Mr. Van Hollen. Well, thank you, Mr. Chairman. I will be
brief. I want to thank you and the Chairman of the full
Committee, Mr. Sensenbrenner, and Mr. Watt, Mr. Conyers, Mr.
Scott, and others who have worked for so long in making sure
that this right that people lost their lives over and people
fought so long to secure will be extended in the future if this
Congress moves forward as I hope it will. I'm proud to be a
cosponsor of this piece of legislation.
I just want to thank everybody for working together, and
hope we can see it through the process to the President's desk.
Thank you.
Mr. Chabot. Thank you.
And Ms. Sanchez, who's not a Member of this Committee but
is a Member of the full Committee, would you like to make an
opening statement? The gentlelady is recognized.
Ms. Sanchez. Thank you, Chairman Chabot. And I also want to
extend my thanks to Ranking Member Nadler for allowing me to
join the Constitution Subcommittee for another important
hearing on reauthorization of the Voting Rights Act.
Today's hearing is particularly special for me and in fact
for everybody who has worked on the reauthorization effort. We
have a bipartisan bill that honors the sacrifices and
intentions of our great champions of the civil rights movement.
And more importantly, this bill protects the fundamental right
of all citizens in our country to vote.
I was particularly proud to stand on the Capitol steps on
Tuesday for the press conference announcing the introduction of
the bill. There were a lot of Members of Congress there who
were thanked for their efforts in the reauthorization. But I
want to personally thank Congressmen Chabot and Nadler for
being the first to start the process of building the
congressional record and now conducting legislative hearings on
this landmark bill.
H.R. 9 is a shining example of the kind of quality
bipartisan legislation that respects American ideals and puts
partisanship aside. As a member of the Congressional Hispanic
Caucus and a former civil rights attorney, this bill has every
provision that I hoped it would contain when the
reauthorization process began last fall.
H.R. 9 extends the preclearance requirements in section 5
for another 25 years and strengthens section 5 by repairing the
damage done by the Supreme Court in Reno v. Bossier Parish and
Georgia v. Ashcroft, those two cases. These are, I feel, very
productive improvements in the VRA that will protect citizens'
voting rights nationwide.
I'm also extremely pleased that the language assistance
provisions in section 203 are reauthorized in this bill. My
congressional district lies in Los Angeles County, which has
been covered by section 203 since the year 2000. And I have
seen first-hand how Hispanic, Chinese, Filipino, Japanese,
Korean, and Vietnamese constituents have benefitted from those
language assistance provisions when they go to the polls.
That's why I believe that reauthorizing section 203 is an
essential provision of H.R. 9. Voting is a fundamental right
that should be protected for all citizens, and that includes
language minorities.
Voting is the one way that every American citizen can
participate, influence, and collectively shape our democratic
Government. The ability to fully participate in an informed way
should not be denied to those citizens--and I emphasize
``citizens''--who are more fluent in other languages other than
English.
Today I think the icons of the civil rights movement after
whom this bill is named--Fannie Lou Hamer, Ms. Rosa Parks, and
Coretta Scott King--would be proud to have a bill that protects
all citizens' right to vote regardless of their race,
ethnicity, education level, or language proficiency. And I
can't think of a better bill to have worked on.
We have Members backing this bill that come from all
political stripes. They come from diverse ethnic and racial
backgrounds and from Wisconsin to Florida, New York to
California. This bill and those in support of it are a
reflection of the best that America can do.
I sincerely hope that as this bill makes its way through
the legislative process in both the House and the Senate,
partisan concerns are put aside. Every Member of this body
should join in support for this bill as it is currently drafted
and resist urges to weaken this landmark bill or strip any of
its provisions for short-term political points.
And again, I just want to thank the Ranking Member and the
Chairman of both the Subcommittee and full Committee for their
leadership on this issue. I yield back.
Mr. Chabot. Thank you very much.
We'll now get into the introduction of the panel here.
Let me begin by saying that, without objection, all Members
will have 5 legislative days to submit additional materials for
the hearing record.
Our first witness will be Mr. J. Gerald Hebert. Mr. Hebert
is a sole practitioner in Alexandria, Virginia, focusing on
election law and redistricting. Mr. Hebert has had an extensive
career in voting litigation, representing a number of States in
redistricting and election issues, including the States of
Texas, California, New York, South Carolina, and Virginia.
Prior to his practitioner work, Mr. Hebert worked at the
Department of Justice from 1973 to 1994, where he served as
acting chief, deputy chief, and special litigation counsel in
the Voting Section of the Civil Rights Division. Mr. Hebert
served as lead attorney in numerous voting rights and
redistricting suits and as chief trial counsel in over 100
voting rights lawsuits, many of which were ultimately decided
by the United States Supreme Court. Mr. Hebert testified before
this Subcommittee during last year's oversight hearings on the
Voting Rights Act. We welcome you back here this morning, Mr.
Hebert.
Our second witness will be Mr. Roger Clegg. Mr. Clegg also
testified before us last fall. He is the President and CEO for
the Center for Equal Opportunity, where he specializes in civil
rights, immigration, and bilingual education issues. Mr. Clegg
is also a contributing editor at National Review Online and
writes frequently for USA Today, The Weekly Standard, the Legal
Times, and other periodicals and law journals. Prior to his
work at CEO, Mr. Clegg held a number of positions at the U.S.
Department of Justice between years 1982 and 1993, including
that of assistant to the Solicitor General. Welcome back here
this morning, Mr. Clegg.
And our third and final witness this morning will be Debo
Adegbile. Mr. Adegbile is the Associate Director of Litigation
at the NAACP Legal Defense and Educational Fund Incorporated,
where he works with the director of litigation to oversee the
organization's legal program while remaining actively engaged
in voting rights litigation and advocacy. Previously, Mr.
Adegbile was an assistant counsel at LDF, where he litigated
voter rights cases on behalf of African-Americans and other
underserved communities. Between 1994 and 2001, he was an
associate at the law firm of Paul, Weiss, Rifkind, Wharton &
Garrison, where he litigated several commercial and civil
rights cases. More recently, Mr. Adegbile served as a
coordinator of the National Nonpartisan Election Protection
Program during the 2004 elections. We welcome you here this
morning, Mr. Adegbile.
For those who haven't testified, and that's only, I think,
one, before this Committee, so the other two are quite familiar
with this, we have what's called a 5-minute rule. There's a
clock right there in front of you, a light system, actually.
The green light will be on for 4 minutes, the yellow light will
come on letting you know you have 1 minute to kind of wrap up,
and the red light will come on and that means your time is up.
We won't gavel you down immediately, but we'd like you to try
to end as close to the red light as possible.
And it's the practice of this Committee to swear in all
witnesses appearing before it. So if you wouldn't mind standing
and raising your right hands.
[Witnesses sworn.]
Mr. Chabot. All witnesses have indicated in the
affirmative.
We'll now begin with our first witness. Mr. Hebert, you're
recognized for 5 minutes.
TESTIMONY OF J. GERALD HEBERT, FORMER ACTING CHIEF, CIVIL
RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. Hebert. Thank you, Mr. Chairman. And thank you, Members
of the Committee, for the opportunity to speak to you today
about what is considered to be the strongest and most effective
piece of civil rights legislation ever enacted in the history
of our country, the Voting Rights Act, which many consider to
be the crown jewel of civil rights.
I previously appeared before the Subcommittee, as you said,
last October, Mr. Chairman, and at that time focused my
comments on the bailout provisions. I would simply add that I'm
pleased to see that the bill, H.R. 9, makes no substantive
changes in the bailout provisions. I think they're a good fit.
I think they're easy to prove for jurisdictions that are not
engaged in voting discrimination. I'm pleased to see that was
left intact.
Before getting to some comments about the bill itself, I
want to take just a few minutes to make some preliminary
comments about the coverage formula that's been a part of the
Voting Rights Act since its inception. The coverage formula is
important, of course, because it dictates which jurisdictions
are going to be subject to the special provisions of the act.
H.R. 9 makes no changes in the coverage formula. To be
sure, the constitutionality of all the act's special remedial
provisions hinges on the coverage formula, so it's clearly an
important issue. Because the City of Boerne case from the
Supreme Court is now 10 years old and the composition of the
Court has changed since that time, no one can safely predict,
of course, how the Court will consider an attack on the
constitutionality of the act, which is surely to come based on
the coverage formula that some have claimed is outdated. I
think it will help those of us who intend to defend the act's
constitutionality in the future against attacks from groups,
including Mr. Clegg's, to be able to point to the reasons
Congress decided that the continuing problems of voting
discrimination warrants the extension of the acts special
provisions.
The record assembled by this Committee--and I'm pained to
admit that I've read nearly all of it I believe is an
impressive one. But what it really shows and what should be
troubling to all of us is that the engine of voting
discrimination runs on. And this Committee has done an
excellent job at developing a record to show that the special
provisions still remain a good fit to the discrimination in
voting that is taking place.
And I think that's consistent with the Supreme Court's
admonition in the City of Boerne case that there must be
congruence and proportionality--and that's the quote from the
Supreme Court--between the injury that you're trying to prevent
or remedy and the means that you're adopting to that end. The
fact that--the preclearance provisions in particular have
blocked acts of intentional discrimination.
Now, I had occasion to read Mr. Clegg's testimony before
today and I note that one thing that he has said is that a lot
of the discrimination is anecdotal and not necessarily proof of
intentional discrimination. I would submit to you that he is
either unaware of a lot of what is in the record or that he
doesn't understand what constitutes intentional discrimination.
I recall, for example, the numerous instances in the
lengthy reports submitted by the Lawyers Committee for Civil
Rights detailing intentional discrimination against minority
voters. One of those examples, actually out of Alabama,
involved the City of Foley. I represented a group of Black
voters who wanted to become annexed into the city. Their
children were drinking--the drinking water in their homes was
contaminated because the septic tanks that they had outside
their homes were leaking into the drinking water. They wanted
to be annexed so they could be part of the city's services and
get clean water and sewer services and streetlights and fire
hydrants and all the rest. The city refused to annex them. And
the Justice Department actually blocked some annexations on the
grounds that they were allowing White people into the City of
Foley to be annexed but were not extending the equal rights to
Blacks.
I represented that group of people after I left the Justice
Department, and we sued the City of Foley. And make no mistake,
the decision to try to keep those people out was intentionally
based on racial discrimination. They didn't want that group of
people voting in their elections. It had more to do with their
opportunity to participate in the political process and bring
about things that really affected their daily lives more than
it did anything else.
And so I think that, you know, that example is in the
record. But the Voting Rights Act ended up bringing about a
solution to that problem. I'm happy to say that those people
are a part of that town today and are getting the city's
services that they deserve.
I know that my time is running out, so lastly, let me just
make a couple of observations about some of the other
provisions.
The one provision that I am opposed to in the bill is to
adding a provision that precludes judicial review of the
Attorney General's decision to certify Federal observers in a
covered jurisdiction. I think that there ought to be occasions
when we not only could review the decision about whether the
Attorney General has placed observers in a certain area, but
also to review the Attorney General's decisions to preclear
certain things. That's a case, Morris v. Gressette, which
presently precludes judicial review of the Attorney General's
decision to preclear, and I think that's a provision that many
of us in the voting rights bar would also like to see included
in the bill. I understand that one horse can only carry so much
baggage, but it is something that has been a growing concern to
us, especially as we review the decisions by this
Administration under the Voting Rights Act.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Hebert follows:]
Prepared Statement of J. Gerald Hebert
Mr. Chairman, Mr. Vice Chairman, and distinguished Members of this
Committee. Thank you for inviting me to testify before you today on a
piece of legislation that has proven to be the strongest and most
effective piece of civil rights legislation in our Nation's history:
the Voting Rights Act.
I previously appeared before the Subcommittee last October and at
that time focused my comments on the bailout provisions of the Act.
Today, I will focus my comments this morning on a few key provisions of
the proposed bill that has been circulated for discussion and has been
shared with me by the Subcommittee staff. I also will briefly touch on
a few other issues as they relate to reauthorization of the Act.
Before getting to the bill itself, however, I want to take a few
moments to talk about the coverage formula that has been a part of the
Voting Rights Act since its inception. The coverage formula is
important because it dictates which jurisdictions are subject to the
Act's special provisions.
As I read the proposed bill, the coverage formula determinations
remain as they were. Even though the Supreme Court has upheld the Act
against constitutional challenge on two occasions (1966 and 1980), much
time has passed not only since the original Act was passed but also
since the constitutionality of the Act has been revisited. On several
occasions since 1980, the Court has decided voting rights cases
assuming its constitutionality.
In 1997, the Supreme Court struck down as unconstitutional the
Religious Freedom Restoration Act, finding that Congress had exceeded
its enforcement power under the Fourteenth Amendment. City of Boerne v.
Flores, 521 U.S. 507 (1997). The Court's opinion in Boerne cited and
quoted with approval passages from its earlier 1966 decision upholding
the constitutionality of the Voting Rights Act in South Carolina v.
Katzenbach, 383 U.S. 301, 326 (1966). The Court in Boerne actually
seemed to reiterate its earlier reasons for upholding the Voting Rights
Act in the Katzenbach case and distinguishing the Voting Rights Act
from the unconstitutional Religious Freedom Restoration Act. Thus, many
have assumed since that time that the Court's Boerne decision points
toward why the Court continues to view the Voting Rights Act as
constitutional today. I think the record that this Committee has
assembled shows quite convincingly that the engine of racial
discrimination runs on and the need for the special provisions
continues.
The coverage formula issue is straightforward. According to the
Supreme Court, Congress's enforcement power under the Civil War
Amendments extends only to enacting legislation that enforces those
Amendments. City of Boerne v. Flores, supra. The Court has described
this power as ``remedial''. South Carolina v. Katzenbach, supra, at
326. The Court has cautioned that Congress lacks the power to decree
the substance of those Amendments. In other words, Congress has the
power to enforce, not the power to determine what constitutes a
constitutional violation. City of Boerne, supra, at 519.
The proposed legislation that I have reviewed makes no changes in
the coverage formula. To be sure, the constitutionality of all of the
Act's special remedial provisions hinges on the coverage formula, so it
is clearly an important issue. And because City of Boerne is now nearly
ten years old and the composition of the Court has changed, no one can
safely predict how the Court will view the constitutionality of an Act
based on a coverage formula that many consider outdated.
Congress has developed a detailed factual record that supports the
reauthorization of the special provisions. This Committee has been
doing a terrific job of gathering this information over the past year
and I commend this Committee for doing so. I think it will help those
of us who intend to defend the Act's constitutionality in the future
against attacks from Mr. Clegg and his group to be able to point to the
reasons Congress decided that the continuing problems of discriminatory
voting practices warrants an extension of the Act. Congress's approach
to studying the current conditions in the covered jurisdictions to
insure that the Act still continues to be a good fit to voter
discrimination is consistent with the admonition in City of Boerne that
``[t]here must be congruence and proportionality between the injury to
be prevented or remedied and the means adopted to that end.'' Boerne,
supra, at 520.
Mr. Clegg (p.7) complains that the record developed by congress is
anecdotal and doesn't involve much intentional discrimination. He is
apparently unaware of a lot of the information that has been developed
or he doesn't understand what constitutes intentional discrimination.
I recall for example that there were numerous instances cited in
the lengthy report of the Lawyers' Committee for Civil Rights Under Law
(which is already a part of the official record before this committee)
detailing discrimination against minority voters. For example, former
Justice Department official Robert Kengle reported that in Georgia, the
Justice Department interposed several method-of-election objections
where local governments ``attempted to add at-large seats to single-
member district plans under circumstances that strongly suggested a
discriminatory purpose.'' Mr. Kengle's analysis noted by way of example
the July 1992 objection to the Effingham County Commission's attempt to
change the county's then-existing five-member single-member district
plan (which had been adopted in response to a vote dilution lawsuit) to
a mixed plan with five single-member districts and an at-large chair to
be elected with a majority vote requirement. The Justice Department
objected to the change stating:
Under the proposed election system, the chairperson would be
elected as a designated position by countywide election with a
majority vote requirement. In the context of the racial bloc
voting which pertains in Effingham County, the opportunity that
currently exists for black voters to elect the commissioner who
will serve as chairperson would be negated. Moreover, it
appears that these results were anticipated by those
responsible for enactment of the proposed legislation. The
proposed change to an at-large chairperson followed the
elimination of the position of vice-chairperson, which had been
held by a black commissioner since 1987. Although we have been
advised that the proposed system was adopted in order to avoid
the possibility of tie votes in the selection of the
chairperson and for other proposals before the board, this
rationale appears tenuous since the change to an even number of
commissioners would invite tie votes to a greater extent than
the existing system.\1\
---------------------------------------------------------------------------
\1\ John R. Dunne, Objection Letter, July 20, 1992.
Mr. Chairman and members of the Committee, this was not ancient
history. It was a little more than a decade ago, and well after the
Supreme Court and Congress had observed the potential for diluting
minority voting strength in racially polarized elections that such
changes could produce. The various devices proposed in combination in
Effingham County (numbered posts, majority vote requirement and at-
large elections) have each been cited by the Supreme Court and the
Congress as devices that enhance the opportunity for racial
discrimination to occur in the electoral process. So when Mr. Clegg
says there is little evidence of intentional discrimination and that
the discrimination detailed in the congressional record is largely
anecdotal, I respectfully disagree.
It is also important Mr. Chairman, that a number of objections
interposed under Section 5 have been interposed to changes that had
been illegally implemented (i.e., without Section 5 preclearance) for
years, or even decades. Some changes finally were submitted only as the
result of litigation; in other cases, it appears that the unprecleared
changes were detected by DOJ during the Section 5 review of other
changes (such as annexations) that were later submitted by the
jurisdiction. The utter failure to make a Section 5 submission of an
objectionable change, when such changes have been known for years to
increase the potential for racial discrimination in the political
process, strongly suggests that deliberate racially discriminatory
conduct is at work.
It is critical to recognize that in this day and age, evidence of
intentional discrimination must often be gleaned from circumstantial
evidence. That is because state and local officials largely avoid
making overt public statements of racial animus. The point here is that
Congress is entitled to look at the record it has developed and draw
reasonable inferences that intentional discrimination continues to
occur, and I think the record developed to date proves that it does.
Drawing inferences of intentional discrimination from objective facts
is hardly new. Indeed, the Supreme Court itself draws such inferences
of intentional discrimination, largely utilizing the factors laid out
in the Arlington Heights case to decide whether intentional
discrimination may be inferred from certain actions of government
officials.
Lastly, a couple of observations about some other provisions of the
bill. I believe Congress was correct in not changing the bailout
provisions. I am opposed to the adding of a provision that precludes
any judicial review of the Attorney General's decision to certify
federal observers in a covered jurisdiction. I believe that in some
instances in 2004, decisions were made at the Department of Justice to
send federal officials and observers to jurisdictions based more on
political considerations than racial considerations. For this same
reason, I would also like to go on record as supporting legislation
that overrules the Supreme Court's decision in Morris v. Gressette and
would permit judicial review in extreme cases of decisions made by the
Attorney General to grant preclearance to a voting change. I offer
these observations because I have seen the Department of Justice's
enforcement of the Voting Rights Act subject to increased manipulation
by political appointees for partisan purposes. The recent revelations
about the Texas re-redistricting and how the preclearance process got
corrupted within the Department of Justice--and there are other
examples--illustrate the need for this judicial review. I would,
however, reserve it for extreme cases.
Mr. Chabot. Thank you very much.
Mr. Clegg, you are recognized for 5 minutes.
TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER
FOR EQUAL OPPORTUNITY
Mr. Clegg. Thank you, Mr. Chairman, for the opportunity to
testify this morning before the Subcommittee. My name is Roger
Clegg and I am president and general counsel of the Center for
Equal Opportunity. I should also note, as you did, that I was a
deputy in the Department of Justice's Civil Rights Division for
4 years, from 1987 to 1991.
The draft bill about which I've been asked to testify this
morning is bad policy, basically from beginning to end, and
unconstitutional in many different ways, to boot.
Let me begin, though, by quoting something to you:
``And today, in the American South, in--in 1965, there was
less than a hundred elected Black officials. Today, there are
several thousand. The Voting Rights Act of 1965 has literally
transformed not just southern politics, but American politics.
``Well, I think during the past 25 years, you have seen a
maturity on the part of the electorate and on the part of many
candidates. . . . So there has been a transformation. It's a
different state, it's a different political climate, it's a
different political environment. It's a different world that we
live in, really. . . .
``The state is not the same state it was. It's not the same
state that it was in 1965 or in 1975, or even in 1980 or 1990.
We have changed. We've come a great distance. . . . [I]t's not
just in Georgia, but in the American South, I think people are
preparing to lay down the burden of race.''
That's not me speaking, that's John Lewis, in a sworn
deposition in the Georgia v. Ashcroft litigation.
Justice O'Connor found that testimony credible. Let me read
how she concluded her opinion for the Supreme Court in that
case:
``The purpose of the Voting Rights Act is to prevent
discrimination in the exercise of the electoral franchise and
to foster our transformation to a society that is no longer
fixated on race. . . . As Congressman Lewis stated: `I think
that's what the [civil rights] struggle was all about, to
create what I like to call a truly interracial democracy in the
South. In the movement, we would call it creating the beloved
community, an all-inclusive community, where we would be able
to forget about race and color and see people as people, as
human beings, just as citizens.' '' Justice O'Connor concluded:
``While courts and the Department of Justice should be vigilant
in ensuring that States neither reduce the effective exercise
of the electoral franchise nor discriminate against minority
voters, the Voting Rights Act, as properly interpreted, should
encourage the transition to a society where race no longer
matters: a society where integration and color-blindness are
not just qualities to be proud of, but are simple facts of
life.''
But the bill that you are considering today will ignore
what John Lewis said about the changes in the South and will
continue indefinitely the preclearance provisions of section 5.
And it would explicitly overturn Justice O'Connor's
decision in Georgia v. Ashcroft.
And it would also ignore the warning that Justice Scalia
gave in Bossier Parish II about the limits of Congress's
authority, and overturn that decision.
And, at a time when we are struggling with the issue of
immigration, and when the one thing that everybody ought to be
able to agree on is that we need to focus more attention on how
to make sure that those coming to our country can become
integrated into our society, that we strengthen the social glue
holding that society together, and that all of us be able at
least to communicate with one another, this bill would tell
immigrants, hey, if you can't speak English, no problem,
Congress will even force local governments to print ballots in
foreign languages.
This bill is bad for those immigrants because it says that
you can be a full participant in American democracy without
knowing English--which is a lie. This bill is bad for all
Americans because it perpetuates the racial gerrymandering and
racial segregation that is now an inextricable byproduct of the
section 5 preclearance process. In fact, the bill makes that
process worse by overturning Bossier Parish and Georgia v.
Ashcroft.
All of this is bad policy and it is also unconstitutional.
Sometimes the bill exceeds Congress's authority because it has
no plausible record basis in enforcing the Constitution's ban
on intentional racial discrimination in voting.
And sometimes it violates principles of federalism.
And sometimes it actually turns the Constitution on its
head and tries to guarantee racial gerrymandering and racial
segregation.
I'm not happy to say this, Mr. Chairman, but I believe I
must. What I'm afraid has happened is that Democratic
Representatives--that's capital ``D'' Democratic
Representatives--are afraid in this area to do anything that
might offend some minority incumbents and some of their
minority constituents. Their Republican counterparts are afraid
to be called racist by various demagogues and interest groups.
And both parties, especially Republicans, are politically happy
with segregated districts and uncompetitive contests.
I hope that there will be enough Representatives and
Senators, or a President, out there who take seriously their
oaths to the Constitution, who are willing to stand up to those
who will call anyone a racist who stands in the way of their
liberal agenda, and who will not let short-sighted political
calculations tempt them from constitutional principle and the
principle of nondiscrimination and nonsegregation.
Thank you.
[The prepared statement of Mr. Clegg follows:]
Prepared Statement of Roger Clegg
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Thank you.
Mr. Adegbile, you're recognized for 5 minutes.
TESTIMONY OF DEBO ADEGBILE, ASSOCIATE DIRECTOR OF LITIGATION,
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Mr. Adegbile. Good morning, Chairman Chabot, Ranking Member
Conyers, Congressmen--or I should say Congresspeople Watt,
Scott, Sanchez, Van Hollen, Franks. It's a great pleasure to be
with you this morning to speak on the topic of H.R. 9.
Today I will speak very briefly to three topics: The
proposed modification to section 5 to address the second of the
Supreme Court's Bossier decisions; the proposed modification to
section 5 to address aspects of the Supreme Court's ruling in
Georgia v. Ashcroft; and the congressional power to renew the
expiring provisions of the VRA under its enforcement powers
under the 14th and 15th amendments.
With respect to the Bossier II modification, I think it's
very important to note that in a very complex area of law the
problem with Bossier Parish II is very understandable to
everybody whether they be a lawyer or not, a representative or
not. The problem is that the Voting Rights Act was clearly
intended to stop discrimination in voting. It was most
certainly intended to stop intentional discrimination in
voting, and it was a long history of intentional discrimination
that gave rise to the Voting Rights Act. Section 5 in
particular was a special provision designed to stop entrenched
discrimination and persistent efforts to circumvent court
orders.
To the extent that Bossier II requires section 5 to allow
evidence of intentional discrimination to go forward and not
turn back voting changes, it is nonsensical, it is inconsistent
with congressional intent, and it is appropriate for the
Congress to move swiftly to address that case.
There's another point I would like to make about the
Bossier II case, and that point is important as well. There is
a tendency for those who oppose the very effective provisions
of the Voting Rights Act to try and suggest that every single
issue rises to constitutional importance. Congress has the
power to enact the Voting Rights Act. We know that because the
Supreme Court has told us on many occasions over the course of
decades. The fix to Bossier II is statutory in nature. It does
not rise to constitutional moment, and this body has the power
to fix that statute, to stop intentional discrimination in the
section 5 preclearance process so that the burden will not be
foisted upon individuals in communities, often without
resources and access to voting experts, to institute costly
litigation to stop discrimination.
Turning to Georgia v. Ashcroft. That case was a break with
longstanding precedent that had elevated the ability of
minority voters to elect candidates of their choice. And when I
say candidates of their choosing, I do not mean only African-
American candidates or Latino candidates--candidates who the
minority communities choose to serve them in this body and in
State and local bodies. That ability-to-elect standard was very
important in the context of section 5. It was important because
there were many intentional efforts to limit the ability of
minority communities to participate equally in the political
process.
In a winner-take-all game, which is the way our election
system is structured, it's very important to be able to have
your voices represented. The ability-to-elect standard has done
that effectively. And if one reads Georgia v. Ashcroft
carefully, the Supreme Court recognizes that the ability-to-
elect standard is important, because they don't discard it
altogether. However, they give legislatures too much leeway.
They give legislatures the opportunity to choose a course of
action, to pursue influence, which is an ill-defined concept.
Everybody understands in common parlance that it's important to
have influence in a political situation. But what we have found
in light of racially polarized voting patterns, which persist
in many of the covered jurisdictions, is that often influence
alone is not enough, and influence is easy to hide behind. And
this is one of the real harms that Georgia v. Ashcroft could
bring to section 5.
It's easy to advance influence as a theory by which to
cloak intentional vote dilution and discrimination. That is the
danger. We haven't seen the full expression of that danger yet,
because Georgia v. Ashcroft, as this distinguished panel knows,
was decided late in the redistricting cycle. If Georgia v.
Ashcroft is not corrected, as this bill intends to, it could
lead to a very substantial undermining of the power of minority
communities to have their voices heard in legislatures.
I want to touch just briefly in my remaining time on the
congressional power to enact these renewal provisions. It's
very important to note that both the 14th and 15th amendments
are sources of power for Congress to act. The Supreme Court has
repeatedly--and I said this already--but repeatedly, over many
decades, upheld Congress's power to establish section 5, and
the Voting Rights Act's provisions, and has done so after the
case of Boerne v. Flores, which many throw up as a limit on
congressional power in the context of voting.
To be sure, Boerne and its progeny tell us to look at the
record carefully. It directs this body to be careful in its
fact-finding. But this body continues to be the body that is
best suited to make that fact-finding. I think that the record
is very well-established. I don't have time to go into all of
the examples.
But I look forward to addressing any questions that the
panel may have. I appreciate this opportunity.
[The prepared statement of Mr. Adegbile follows:]
Prepared Statement of Debo P. Adegbile
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Mr. Chabot. Thank you very much.
The Members of the panel up here now each have 5 minutes to
ask questions of the witnesses, and I'll begin with myself and
I recognize myself for 5 minutes for that purpose.
Mr. Hebert, I'll begin with you, if I can. How
administrable is the standard established by the Supreme Court
in Georgia v. Ashcroft and how does it deviate from the
standard set by the Supreme Court in 1976 in Beer v. United
States, which was the standard followed by the Court for nearly
30 years?
Mr. Hebert. Well, Beer was a case that said that the
effects prong of section 5 was to be measured by whether or not
the proposed change retrogresses minority voting strength.
Georgia v. Ashcroft did take a different approach to looking at
retrogression in the context of a proposed redistricting plan.
In Georgia v. Ashcroft the Supreme Court, and I agree with Mr.
Adegbile that they have attempted to give States more leeway,
in a sense, by saying that no longer will you be bound to
simply look at the number of minority controlled districts you
had before and compare it to the number of minority controlled
districts you have afterwards and if there are less in the
afterwards, then that retrogresses minority voting strength.
That seemed to be a fairly bright-line test before--you looked
at the number of effective minority districts that minority
were electing candidates of their choice, and then you compared
the proposed plan and measured them up.
In Georgia v. Ashcroft, the Supreme Court said there are
really three types of districts that should be in the calculus.
There are majority-minority districts; there are so-called
coalition districts, where minorities aren't a controlling
majority by themselves but maybe operate in coalition with some
other group, some other minority group or perhaps Anglos, to
elect a candidate of their choice; and influence districts. And
that you can really look at the totality of the plan before and
see how many of those categories of districts you have and how
many you see in the new plan in those categories. And if
overall, in the totality of circumstances, there's been no
retrogression, then the plan should be precleared.
There was an important fact in Georgia v. Ashcroft, which
is that nearly all of the minority legislators in the Georgia
legislature agreed with the plan to actually reduce down the
percentages of some of the more heavily Black districts
downward, where they still felt they could have effective
control, and so the Supreme Court credited that testimony as
well.
I think, you know, that's a long answer to a short
question, but it's really--the fact is that it did change the
playing field, as the dissent pointed out in Georgia v.
Ashcroft, by really taking what was previously a bright-line
test and really replacing it with something that would be more
difficult to administer by the Justice Department or the D.C.
court, which is looking at the totality of circumstances test.
Mr. Chabot. Thank you. Let me follow up my next question
with you as well, and then I'd invite any of the other panel
members to answer as well.
H.R. 9 restores the discriminatory purpose standard to
section 5 such that any voting change made with a
discriminatory purpose cannot be precleared under section 5.
What impact will this change have on minority voters, and how
difficult will it be for the Department of Justice or the
United States District Court for the District of Columbia to
administer? And does the change impose any additional burdens
on covered jurisdictions? Is this intent more or less
consistent with the way the standard was interpreted and
applied prior to 2000?
Mr. Hebert. Well, the answer to, certainly, the last part
of the question is it definitely restores the law as it existed
prior to Bossier II. Bossier II represents, I think, really,
the low-water mark for Supreme Court activity in the civil
rights area, in a sense, because what it said was that they
would reinterpret the statute to allow a jurisdiction that
engages in unconstitutional discrimination in voting and
develop a plan around that unconstitutional discrimination, and
they could still get preclearance under the Voting Rights Act,
a statute that was enacted to further the purposes of the 14th
and 15th amendments. Many of us were really stunned that the
Court could really rewrite the statute, which is what it did,
and limit it in that way.
The Supreme Court has since at least the mid-1970's laid
out a road map, and the Justice Department followed this for
years and years, and still does in many cases, about how to
take the circumstantial evidence of intent and draw inferences
of purposeful discrimination out of it. It's called the factors
that come out of the Village of Arlington Heights case back in
1977, and there are factors that you can actually take into
account and say, look, based on what happened here--the
context, the events that led up to the decision, the effect of
the decision, whether they followed normal procedures, and so
on--you can look at all of that and then draw an inference
about whether or not intentional discrimination played a role.
The Justice Department has, and the Supreme Court, too,
those two branches of Government have for years been using that
approach to prove discrimination. It would really not add much
burden on the States to have to show that, in my view. They'd
been able to work under that standard from 1965 to 2000. And,
you know, for the most part, the Justice Department followed
Supreme Court precedent in its interpretation.
Mr. Chabot. Thank you. If other witnesses would like to
answer, they can--or not.
Mr. Clegg. Well, just briefly, Mr. Chairman. On the
question you asked about whether the approach taken by Justice
O'Connor in her opinion in Georgia v. Ashcroft would be more
difficult to administer than what Mr. Hebert has called the
bright-line approach that he favors, I suppose it's true that
an approach that mechanically invokes quotas and racial
gerrymandering is very easy to administer. It's very automatic.
You don't have to consider all the other nuances and factors
that Justice O'Connor thought ought to be included.
But ease of administration is not the only thing that we
ought to be concerned about. And I think that that's what
concerned Justice O'Connor, that the automatic approach of
saying that, well, if you can draw a majority-minority
district, you've got to do that, is easy to administer, but
it's not consistent with the ideals of the Voting Rights Act.
With respect to the Bossier Parish II issue, I agree with
Mr. Hebert that there are a lot of things that go into the
inquiry about whether purposeful racial discrimination has
occurred. I don't think that we disagree about that. The
question is whether section 5 should be interpreted to allow
the Justice Department to refuse to preclear a change that is
not retrogressive. And I think that Justice Scalia was right
when he said that that was not the purpose, has never been the
purpose of section 5, and that--if you were to interpret this
that way, and this is what he said, that it would create real
constitutional problems.
Mr. Chabot. Thank you very much.
Mr. Adegbile?
Mr. Adegbile. First, with respect to the question about
Georgia v. Ashcroft, it's very clear that the Supreme Court's
decision will make the administration of section 5 much more
difficult. Justice Souter did an able job in the dissent in
that case in pointing out that the Court had given no guidance
as to how to compare the tradeoffs which it contemplates. Under
section 5, DOJ or a reviewing court begins with the status quo.
They don't take the standard from the air. They look to see
what are the circumstances under which minority voters find
themselves at present? And then they examine the voting change
to see whether the voting change is worsening the position of
minority voters.
When you have influence in the mix, it becomes very hard to
understand what the benchmark is. How many opportunity-to-elect
districts are equal to a so-called influence district? How many
influence districts do you have to put in place if you take
away a coalition district? The analysis gets very complicated
and the statute will start to collapse of its own weight--which
I hope was not the Court's intention, but I think that it's
very important for this body to move to restore the clearer
standard of the ability-to-elect that is reflected in H.R. 9.
With respect to Bossier Parish II, the language in the bill
clearly goes back to the pre-Bossier II standard. And it just
simply does not make sense for DOJ or a court to have to turn a
blind eye in a section 5 context to evidence of intentional
discrimination. I mean, it's particularly disturbing, because
we hear under the Boerne case and its progeny that it's very
important to look to incidents of intentional discrimination.
Well, I'm here to tell you that without section 5's protections
and without this restoration, there will be more of those
incidents that go completely undetected because there are not
the resources or wherewithal to turn them aside. Section 5 is
very effective in doing that and it's entirely consistent with
the purposes of the Voting Rights Act, and I believe Congress's
intent, to fix that case.
Mr. Chabot. Thank you very much. My time has expired.
The gentleman for Michigan, Mr. Conyers, is recognized for
5 minutes.
Mr. Conyers. Thank you, Mr. Chairman.
I wanted to ensure our friend Mr. Clegg that John Lewis
is--we're trying to get him to the hearings so that he can help
you be more comfortable in your bed at night to find out that
John Lewis is a full supporter of this bill--as a matter of
fact, he's a cosponsor--and has been working with us on it. He
would be probably as surprised as myself to find out that he is
now being quoted as a reason not to be supportive of the bill.
So I'm hoping he can get here from his other Committee
assignment to join us here, because I've talked to him many
times and I'm sure he'll be able to speak better to his
quotation that you made than I can.
Mr. Clegg. Well, actually, he would not be surprised
because I've done the same thing in the past when we've
appeared on a panel together. So----
Mr. Conyers. He's used to you saying that?
Mr. Hebert. He's used to---- [Laughter.]
Mr. Conyers. Oh, okay. Well, then, I----
Mr. Clegg. He's used to hearing those words quoted. And of
course, in his own testimony before the Subcommittee, he was at
great pains to----
Mr. Conyers. Yeah. Did he help straighten you out? That
didn't make any impression upon you, I presume.
Mr. Clegg. Well, look----
Mr. Conyers. Well, if he's already been----
Mr. Clegg [continuing]. Mr. Conyers, he----
Mr. Conyers. Look, if he's already----
Mr. Clegg. That's what he said.
Mr. Conyers [continuing]. Denied it and you still insist on
quoting him, then there's no point in my going any further on
it. I've only got 4 minutes left.
Mr. Clegg. He doesn't deny the accuracy of the quotation.
Mr. Conyers. Well, I'm sure.
Let me go somewhere else here now. Section 203. Now, the
notion that we're encouraging people who are newly sworn-in
citizens not to continue to improve in English is an important
consideration. And for me, it's a sensitive one because we've
already heard from a number of Members of Congress on this who
have some reservations. And we know that immigration is a huge
issue.
So I wanted to ask Mr. Adegbile whether or not we can get
through this particular time situation and continue to have
language assistance where needed, in view of the record that's
been compiled that shows that it is not particularly expensive
and doesn't seem to put out election workers at all.
Mr. Adegbile. Thank you for that question, Congressman
Conyers. Section 203 is a critical aspect of the Voting Rights
Act. It was part of the evolution of Congress's understanding
about our democracy and the barriers to that democracy. It's a
provision that applies only to citizens--only to citizens--and
many people try to distort the record on that issue.
People who receive 203 assistance at the polls are people
who pay taxes, they are people who serve in wars, they are
people in our communities, and they deserve a say in the
political process. It is simply nonsensical to suggest that
somebody is going to make a decision about whether or not they
are able to learn and speak English because of a rule that
allows them to have translated materials in voting. I don't
think that anybody seriously posits that argument. And if folks
say it, I think it's a cynical argument.
The NAACP Legal Defense Fund supports 203 language
assistance because we recognize that barriers to voting affect
many different types of citizens and that we don't enrich the
democracy by saying some citizens can have access and others
cannot. I am aware of some of the testimony that will be
presented this afternoon. It will go in detail to these issues.
And I think that the record on 203 that's before Congress now
and continuing to be established will be at least as strong as
the record that has been presented at previous renewals of the
Voting Rights Act.
Mr. Conyers. Thank you.
Mr. Hebert, have you any thoughts about that? Because to
me, this is the one sensitive issue that I see standing in
front of us. I think we're moving in a quite uniform way. We've
kept in touch with our legislative counterparts in the other
body. But in this era of immigration emotionalism, their
marches and so forth, I want to get from both of you the best
suggestions as to how we move to resolve this issue as
expeditiously and effectively as we can.
Mr. Chabot. The gentleman's time has expired, but the
witness can answer the question. And I would just, again, note
that we do have a hearing on this at 2 o'clock this afternoon,
on section 203. But the question has been asked, so it can be
answered.
Mr. Hebert. Thank you, Mr. Conyers, and Mr. Chairman for
allowing me to answer.
You know, I follow the Justice Department's enforcement of
voting rights laws pretty closely. Since 1999, nearly all of
the cases the Justice Department has brought in Federal court
under the Voting Rights Act have been brought to enforce the
minority language provisions under 203. Over 90 percent of
their cases, and quite a number of them. And many of them get
settled quickly because the jurisdictions find that the fix,
that they are really not things that they are falling down on,
are fairly easy to do and they recognize that they should be
done.
We talk a lot of times about citizenship and people being
naturalized and the process and, you know, learning to speak
English to become a citizen. Well, you know, if a child is born
in this country and their parents aren't citizens, but they're
born here, even if they're undocumented people, the parents,
the child is a citizen at birth. They may grow up in a
household that doesn't speak English. When that boy or girl
turns 18 years of age and is ready to vote, why shouldn't they
be able to go to the vote and get meaningful information to
make their vote as effective as mine? Why would we deny people
that right? In the United States we open our hearts and open
our minds to people in this country, and that's why we, many
argue that we have an immigration problem today, because we've
been too soft.
But the fact remains that in the area where we're
protecting the most fundamental right and trying to ensure that
we do exactly what Mr. Clegg read, that John Lewis's vision for
America is and Justice O'Connor's vision for America is, to get
people included in the process, why would we not extend those
bilingual provisions as we've done?
Mr. Conyers. Thank you very much.
Thank you, Mr. Chairman.
Mr. Chabot. The gentleman's time has expired. Thank you.
The gentleman from Arizona, Mr. Franks, is recognized for 5
minutes.
Mr. Franks. Well, thank you, Mr. Chairman. And thank you,
members of the panel.
I know that when we discuss subjects like this, I think
it's perhaps important for us just to back up for a moment and
remind ourselves, you know, of the simple idea that America is
first and foremost an ideal, an ideal that all human beings are
created equal and endowed by their Creator with certain
unalienable rights. And I think that that is indeed what
America's best gift to the world is, to somehow not only
maintain that but to see it exported throughout the planet.
Having said that, you know, I'm going to make an admission
that legislation like this catches some of us without full
understanding of its overall impact. You know, it's a fairly
esoteric endeavor that we face here. But having that desire to
see all human beings recognized for the miracles that they are
and somehow that we would become that color-blind society that
cares about people because they're human beings, if we can
start there and pursue that with our hearts, you know, I think
that there is somehow hope for all of it.
Now, what I'd like to do, Mr. Clegg, I'll start with you,
if you don't mind, is the Voting Rights Act has been in place
for some time and there are going to be some things that are
addressing Supreme Court decisions here. And if you can, in
practical terms for someone who is not an expert, can you help
me understand how, in practical terms--you know, an election--
not so much in an outcome-based circumstance but in the effect
of some of the corrections or the ways that this bill addresses
both the Georgia v. Ashcroft and the Bossier decisions? How
does this affect those decisions and, in practical terms, how
is it played out?
Mr. Clegg. Putting aside questions of constitutionality,
the fundamental policy problem that I have with this bill is
the fact that section 5, unfortunately, has become a powerful
engine for the segregation by race of voting districts. And I
don't think that that was the original intent of the Voting
Rights Act. I don't think that that's why people marched at
Selma. I think that that turns the purpose of the Voting Rights
Act on its head. And unfortunately, that is the single greatest
effect now of section 5. And the overruling of Bossier Parish
II and particularly the overruling of Georgia v. Ashcroft will
exacerbate that problem.
That's in a nutshell the most fundamental problem that I
have with this legislation.
Mr. Franks. Mr. Adegbile, your name has been said a number
of different ways today and I'm not sure I said it right. So I
hope you repeat it yourself for all of us. But would you take a
crack at the same question?
Mr. Adegbile. Sure. And you did indeed pronounce it
correctly. I apologize to the panel. I don't know of any
translation for that particular name, and it always gives me
difficulty as well. So I thank you for your efforts.
With respect to the two decisions, I think Bossier II is
very simple and I think it's easy to sort of break it down.
Bossier II, as the Congress intends to correct the statute, the
fix will have the effect of making it easier to detect and
block some forms of intentional discrimination in voting. It's
that simple. It's consistent with the intent of the statute,
and that's what it does.
I can't really imagine the theory of a constitution or a
nation that would want to make it harder for those forms of
intentional discrimination to get detected and stopped. That's
what Bossier II does.
With respect to Georgia v. Ashcroft, we've heard Mr. Clegg
say a number of times that the Georgia v. Ashcroft modification
will lead to the racial segregation of voters and other things
to that effect. There are two important points. One is in my
testimony, and that is there are many factors that map-makers
consider when they draw districts. I need not tell these
Members that because all of you are familiar with the process.
But in the first instance, districts are drawn where voters
are, where they live. There is residential segregation in the
United States of America. It is not because we have the vote
and because we have districts. It has its roots in the history
of discrimination, and it persists to this day.
So in a system where we draw districts to give voices,
local voices, an opportunity to participate in the political
process, drawing some of those districts around segregated
communities that are living under those circumstances because
of our history of discrimination is not only appropriate, it's
necessary. And the Voting Rights Act permits that because, even
though minority people very often live together, there were
people that would try to fragment these populations or over-
concentrate them to minimize their voices in the political
process.
Significantly, there's also a line of Supreme Court
decisions that exercises a check on racial gerrymandering,
which Mr. Clegg is very familiar with. Shaw v. Reno and its
progeny limit the ways in which race can be used in the
redistricting process. Nothing in H.R. 9 changes those cases--
some may think that the Voting Rights Act couldn't change those
cases, since they are constitutionality based. Those limits
continue to exist, and that is why the modifications suggested
don't lead to racial gerrymandering as Mr. Clegg has suggested.
Mr. Franks. I thank the gentleman. My time has expired, Mr.
Chairman. Thank you.
Mr. Chabot. Thank you.
The gentleman from North Carolina, Mr. Watt, is recognized
for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Let me start by asking unanimous consent to submit for the
record the statement of Congressman John Lewis. He anticipated
that he might not be able to get here today, probably
anticipated what Mr. Clegg was going to say.
Mr. Chabot. Without objection, so ordered.
Mr. Watt. All right. And having submitted it for the
record, let me just read specifically what he concludes so
that--which is actually not entirely inconsistent. I mean, it
reinforces in some respects what you said.
``The Voting Rights Act was necessary in 1965, and
unfortunately it is still necessary today, as the extensive
Committee record makes clear. We have come a great distance,
but we still have a great distance to go before all Americans
have free and equal access to the ballot box. This legislation
is among the most important that this Congress will consider,
and I trust that we will take our responsibility to protect the
voting rights of all Americans very seriously as we pass this
legislation. We must renew the expiring sections of the Voting
Rights Act in this session of Congress. Thank you.''
All right, now that we've got that square. I guess, if
you've heard, been on panels with John Lewis before and you've
heard him take issue with your interpretation and Justice
O'Connor's interpretation of what he said before, leads me some
to question your interpretation and your intent on the rest of
this. So let me go straight at it.
I can understand how you can question the constitutionality
of the statute. The Supreme Court's already ruled on that, so
at least you don't mind taking on either John Lewis or the
Supreme Court.
Mr. Clegg [continuing]. The constitutionality of this bill.
Mr. Watt. All right. My question to you is have you read
the record. Now, Mr. Hebert said he had read the record in, I
mean, almost 9,000 pages that we've developed here. Have you
read the record?
Mr. Clegg. I have----
Mr. Watt. Come on, just tell me whether you have or have
not.
Mr. Clegg. Yes. I have. I can't say that I've read every
word, but I've looked at every page.
Mr. Watt. Okay. All right. I got you. So then you might not
be surprised to find that there are numerous instances in the
record where we have found that jurisdictions and States have
been continuing to engage in discriminatory voting actions.
Or maybe I should just make this simpler. Are you
contending for the record that States and jurisdictions are not
still engaging in efforts to diminish the impact of minority
voters?
Mr. Clegg. Congressman Watt, of course there are still
instances----
Mr. Watt. A yes or no answer might suffice. If you're
contending that, I mean, I'd like to know that, or if you're
not contending it. Don't finesse it, though.
Mr. Clegg. Congressman Watt, of course I'm not saying that
there are no instances of discrimination. But what I said in my
testimony, in my written testimony, was that I don't believe
that the record that you have compiled----
Mr. Watt. Which you haven't read.
Mr. Clegg [continuing]. Justifies--looked at every page.
Mr. Watt. Okay.
Mr. Clegg. And, you know, let's be fair. You haven't read
every word of the testimony either.
Mr. Watt. I've been here for all of it, though.
Mr. Clegg. Yeah, but they don't--the record includes a lot
that was not spoken, correct?
Mr. Watt. That's true.
Mr. Clegg. All right. And, you know, you go through page
after page after page of this testimony----
Mr. Watt. I think we've made the point, Mr. Clegg.
Mr. Clegg [continuing]. And the same people and----
Mr. Watt. Let me move on to another question.
Mr. Clegg [continuing]. You know what's going to be there.
And, I mean, you know, look, if you don't want a full answer,
that's fine. But that's not going to help your case in showing
that the Subcommittee----
Mr. Watt. No, I think I got a full answer, and in this case
you seem to be as willing to disregard the intent and what else
is going on around you as you have been willing to disregard
the intent of what John Lewis has said over and over and over
again, and what I said in my opening statement. We are making
progress. I don't think anybody would argue with you on that.
Mr. Clegg. And my point, Congressman. I'm not trying to
mislead anybody. Of course, I know that John Lewis supports
this bill. He told me that. He has said that for this record.
My point in quoting him is that his statement about the
transformation of the American South is completely inconsistent
with the reauthorization of section 5. And it was relied upon
by Justice O'Connor in Georgia v. Ashcroft, which this bill
would overturn.
Mr. Watt. That's exactly right.
Mr. Clegg. Okay? So----
Mr. Watt. Because we think that conclusion is inappropriate
at this point, and I think that's Congress's right to think
that at this point.
Now, let me----
Mr. Chabot. The gentleman's time has expired. Would he like
an additional minute?
Mr. Watt. Can I get just 1 additional minute, because I
want to----
Mr. Chabot. The gentleman is recognized for 1 minute.
Mr. Watt [continuing]. Deal with my other two colleagues
here, Mr. Adegbile and Mr. Hebert. I didn't want this to become
just an issue with Mr. Clegg here.
I mean, Mr. Scott and I have had this conversation before.
I'm not sure I necessarily agree with you all's interpretation
or the implication of what ability to elect candidates of
choice means. Because the ability to elect candidates of
choice, as I understand it, is not an invitation to protect
only majority-minority districts. Electing candidates of choice
can be candidates from coalition districts, influence districts
also. Is that not the case?
Mr. Hebert. Yes, it is. It----
Mr. Watt. Okay. That's all. I just wanted to be clear,
because I didn't want to leave the wrong impression, because
the Supreme Court sometimes picks up, as Mr. Clegg does, the
wrong impression from these things. I want this to be specific.
There is nothing to suggest that candidates of choice have to
be elected from majority-minority districts. Is that correct?
Mr. Adegbile. I think Georgia v. Ashcroft can be read to
suggest that nine justices agreed with that statement.
Mr. Watt. Right. Okay. All right. I just wanted to be clear
on that. I wanted to clarify the record.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Virginia, Mr. Scott, is recognized for 5
minutes.
Mr. Scott. Thank you, Mr. Chairman. I thank the witnesses
for testifying.
The evaluation of a district, is there anything in this
legislation that sets a national standard for ascertaining
whether a district is one from which a candidate of choice can
get elected? It's been my experience that it varies by
district. So my question is does the language in Court
precedents require a district-specific evaluation to ascertain
whether or not minority voters have an opportunity to elect
their choice. Mr. Hebert?
Mr. Hebert. No, this bill does not create a national
standard to that effect. And you're correct that, even under
existing Supreme Court precedent, which this bill is consistent
with, in my view, the opportunity to elect a candidate of your
choice, preferred candidate of your choice in the district can
range from, you know, heavily minority in some instances is
necessary to less than 50 percent in others.
Mr. Scott. Following up on that, in some coalition
districts African-Americans have in fact been elected and
candidates of choice elected, as the gentleman from North
Carolina has indicated. Does the language in the bill protect
those districts from being dismantled?
Mr. Hebert. Yes, it does.
Mr. Scott. Under the language in the bill, so long as an
opportunity district is not dismantled, does the language allow
dismantling a coalition district adjoining the district, or
does a plan which keeps the number of opportunity districts
equal, but dismantles all of the coalition districts, would
that plan violate section 5?
Mr. Hebert. In my view, it would.
Mr. Scott. You have litigated many of these cases, is that
right?
Mr. Hebert. Yes, I have.
Mr. Scott. Who pays your legal fees?
Mr. Hebert. Sometimes no one. [Laughter.]
It varies, actually. If I represent a State or local
government, the State or local government pays. In many
instances I have served as pro bono counsel for public interest
groups. In others, the Democratic Party has paid me.
Mr. Scott. If an area has been victimized by an illegal
scheme, are there circumstances where they cannot come up with
the money to get themselves out of that situation?
Mr. Hebert. Bringing vote dilution cases, Congressman
Scott, is a very, very costly enterprise. You need expert
witnesses, you need skilled lawyers, because the other side is
going to lawyer up big time, usually. I would estimate that the
cost of a vote dilution case, to bring a vote dilution case
through trial and appeal, runs close to a half a million
dollars in costs.
Mr. Scott. And much of that, under present law, is not
reimbursable?
Mr. Hebert. That's correct.
Mr. Scott. Under the bill, would most of the costs be
recoverable?
Mr. Hebert. Yes, they would.
Mr. Scott. If you win?
Mr. Hebert. If you prevail.
Mr. Scott. Under section 5 preclearance, if there is no
preclearance, even if a client plan is clearly illegal, if we
don't extend the preclearance provision, if a plan is clearly
illegal, what would happen until a case could be brought?
Mr. Hebert. The discriminatory system would go into effect.
Minority voters, presumably, would be harmed. And it might be
too little too late to even bring a suit if you could muster
the resources to file it.
Mr. Scott. And if you finally win, is it your experience
that the person running for reelection would have the
advantages of incumbency?
Mr. Hebert. Absolutely.
Mr. Scott. So they would benefit during the time when the
illegal plan was in effect and continue to benefit because we
did not extend the preclearance provision. With the
preclearance provision, the plan never would have gone into
effect in the first place, is that right?
Mr. Hebert. That's correct. Once it goes into effect, you
have a sitting incumbent. To get that sitting incumbent out,
that would be a fruit of the poisonous tree, an advantage that
incumbent would have against a challenger.
Mr. Scott. Mr. Hebert, you've represented people in bailout
cases. For those who have not discriminated in the last 10
years, is there any problem with bailing out?
Mr. Hebert. No. No, it's just really the only problem with
bailing out is more people should know about it.
Mr. Scott. Well, is it not a fact that some areas, for race
relations purposes, would prefer just not to bail out so that,
as they change election laws, the entire community would know
that nobody's being discriminated against?
Mr. Hebert. That's true. A lot of jurisdictions like
section 5 preclearance and like to get a stamp of approval from
the Justice Department that their voting system is non-
retrogressive. And I've heard a number of officials say that.
Mr. Scott. My time's up.
Mr. Chabot. The gentleman yields back his time.
The gentleman from Iowa I know just arrived, but is he
interested in asking some questions?
Mr. King. Mr. Chairman, I'd be very grateful to have that
opportunity.
Mr. Chabot. Excellent. We appreciate that. The gentleman is
recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman. And I thank the
witnesses for their testimony and regret I wasn't able to
listen to it all in its entirety, although I do come to this
panel with a significant degree of curiosity with regard to
this whole subject matter of reauthorization of the Voting
Rights Act.
You know, I've watched this society evolve from the time I
was a young man and I saw the civil rights demonstrations in
the streets, and I do believe and will always contend that it
was necessary to establish the Voting Rights Act when we did.
But I also don't see a path for us to ever get to the point
where we could just simply recognize that this society has
evolved to the point where we could get along without it. And I
don't see a path that's being proposed on how we might be able
to change the preclearance qualifications, for example, let
alone the multilingual language that's in there.
But I just direct my inquiry to Mr. Clegg. Your
constitutional view? Could you state that with a little more
depth, and your viewpoint on how you see this from a
constitutional perspective in the Voting Rights Act?
Mr. Clegg. Sure. Section 5 is constitutionally problematic
for two reasons. First of all, there are federalism concerns
because of the extraordinary nature of the preclearance
procedure. Voting activities are usually a State matter.
Sometimes they are constitutionality committed to the States.
And therefore there's a presumption that these matters are
going to be handled by the States without the State having to
go get permission from the Federal Government beforehand. The
Voting Rights Act section 5 obviously changes that.
The other thing that section 5 does is allow the Justice
Department to refuse to preclear a change not only when it is
retrogressive and there is a discriminatory purpose, but also
when it's retrogressive and there is simply a disproportionate
effect on one racial group or another. The reason that that's
constitutionally problematic is that the Supreme Court has made
clear that Congress's authority in this area, that the
Constitution prohibits only disparate treatment on the basis of
race, not simply State actions that have a disparate impact.
Mr. King. Mr. Clegg, with regard to that--and I didn't hear
you reference the 14th amendment Equal Protection Clause in
this--but as I look at the results of this, and the Supreme
Court has ruled that it's all right to discriminate on the
basis of race as long as you're discriminating on the basis of
advantaging a minority, has there been a case brought forward
before the Court where there has been a non-minority that has
been disadvantaged because of the redistricting and the
gerrymandering to benefit minorities?
Mr. Clegg. Well, yes. That would be the Shaw v. Reno
decision, which the NAACP referenced here. So the prohibition
against--and this is actually a third way that section 5 raises
constitutional problems. Again, unfortunately, it has been
interpreted to require racial gerrymandering and to require the
racial segregation of districts. And that is inconsistent with
the Equal Protection Clause and with the 15th amendment, as the
Supreme Court explained in Shaw v. Reno. I would say that it is
unfair and wrong when that kind of segregation occurs not only
to White voters, but also with respect to Black voters.
Mr. King. In Iowa we have a redistricting plan that
separates all that and doesn't allow any gerrymandering and
it's totally blind and unbiased in many, many regards. And I
understand the politics of this on the one side--actually
politics on both sides--but would you speculate as to what this
country would look like if we just simply didn't reauthorize
the Voting Rights Act and we let the conscience of the States
and the people in this country regulate?
Mr. Clegg. Well, it's important to keep in mind,
Representative King, that many provisions of the Voting Rights
Act are permanent. And----
Mr. King. Two or three, for example?
Mr. Clegg. And many of them are uncontroversial. And of
course the 15th amendment and the 14th amendment are permanent
as well. So just because section 5 is not reauthorized does not
mean that a State that decided that it wanted to discriminate
on the basis of race would be able to. It would still be
blocked from doing that by the 14th amendment, the 15th
amendment, and the permanent provisions of the Voting Rights
Act. And I think that the point that Representative Lewis made
and that I've made today is that the record is just not there
to show that the covered jurisdictions, if section 5 were not
reauthorized, are going to start acting as if it were 1965.
I mean, one way to look at this, Congressman King, is
suppose that we never had a section 5 and somebody came forward
today, in 2006, with this bill. Somebody came forward in 2006
with this bill that was going to single out the jurisdictions
that are singled out now by this bill and said, ``Let's require
these jurisdictions to jump through these hoops and to be
singled out for the penalty provisions of section 5.'' Would
that bill--would anybody be seriously considering the enactment
of that bill? And would anybody seriously think that that bill
would withstand constitutional scrutiny? And the answer, of
course, is no.
Mr. King. Thank you, Mr. Clegg. I yield back.
Mr. Chabot. The gentleman's time has expired.
Did the gentleman from Virginia have a request?
Mr. Scott. Mr. Chairman, part of the reason the
jurisdictions are the way they are now is because of the Voting
Rights Act. And I would like, if any of the witnesses have
closing comments on the continuing need for the Voting Rights
Act, I would appreciate it if you'd give them an opportunity to
respond.
Mr. Chabot. Okay.
Mr. Hebert. I would like to make a statement. Very briefly,
Mr. Chairman--and thank you, Mr. Scott, for the opportunity to
address this issue--first of all the Voting Rights Act does not
require quotas, it does not produce segregated districts. Many
of the minority opportunity districts that exist today are the
most integrated districts in the country. They're 50, 55
percent minority. I mean, you know, there are a lot of Members
up on this Committee who have come from districts that are 95
percent White, or better.
I think the best way to look at this is the way I described
recently when I was speaking during Black History Month to a
class. And they said, well, what's the story with the Voting
Rights Act extension? And I thought, what an interesting thing
for sixth graders to ask that question. And I said, you know,
here's the way to look at this. Back in 1982, Congress decided
that strong medicine was still needed and the prescribed three
pills a day of penicillin for 25 years. And hopefully, that was
going to cure the disease of discrimination in voting.
Now, along the way, what we have found out is that the
Supreme Court has said, in Georgia v. Ashcroft, well, you don't
need to take three a day. Only take two a day. And then they
came along with Bossier Parish and they said, well, we're going
to take one of those others away, so now you're down to one a
day.
Well, the problem with that is that the penicillin you were
originally prescribed is going to take a lot longer to take
effect. What I see this bill doing is it gets us back to three
pills a day, and hopefully a day when we have a healthy America
in our political process, and racial discrimination ends. The
disease of discrimination will be over.
That, Mr. King, I think is really the simple answer to why
we still need the Voting Rights Act, because the engine of
racial discrimination runs on.
Mr. Scott. Mr. Adegbile?
Mr. Adegbile. Two quick points. Mr. Clegg said that section
5 is a penalty clause. Section 5, of course, is not a penalty
clause. Section 5 is a remedy for demonstrated discrimination
in the area of race in voting. In fact, it may be more
appropriate to say that without section 5 the penalties that
were imposed on minority voters for nearly 100 years after the
passage of the 15th amendment--that is a substantial period of
time--for nearly 100 years the Constitution was ignored, and it
was tolerated in this country.
Section 5 has begun to move us closer to ensuring the
provisions of the Civil War Amendments. But we're not there
yet. There's nothing inconsistent with recognizing the progress
that we have made and also recognizing some of the mechanisms,
legal and otherwise, that have helped to carry us there.
In light of the extensive record before this body, and I
would say it's not just the number of pages, but what's
contained in it. I will admit I've not looked at or read every
page, though I have actively been engaged in helping to build
the record, and it's very substantial. It's substantial at the
local level. It's substantial at the Statewide level. It's
substantial as to redistrictings, as to intentional
discrimination, as to discriminatory effects.
And finally, I will just say that history did not begin
yesterday. Mr. Clegg says that we should start to analyze the
passage or renewal of section 5 by saying, well, let's look at
today and see how we find the way forward. The history of
discrimination taught us about how it happens. And what the
Congress has learned is that discrimination in voting is both
adaptive and persistent. And it is that adaptive persistence
that made section 5 necessary in 1965 and, based on the record,
also today.
Mr. Scott. Thank you very much.
Mr. Clegg, did you have something?
Mr. Clegg. I was just going to say that, with respect to
the record, when you all started out, it would seem to me that
you would want the record to do a number of things. First of
all--and somebody reviewing the record, the Supreme Court
reviewing the record, is going to look for a number of things.
First of all, it's going to want to make sure that the
Committee came into this with an open mind and was getting
evidence from both sides of this debate. It is going to want
evidence of intentional, purposeful racial discrimination in
the covered jurisdictions. And it iss going to need evidence
that the discrimination that it found in the covered
jurisdictions was worse than what's going on in the noncovered
jurisdictions, because, after all, section 5 covers one and not
the other. And then finally, it was going to need evidence that
the extraordinary preclearance provisions and the use of an
effects test rather than an intent test are necessary to ensure
that purposeful discrimination does not occur.
And honestly, Mr. Chairman, I think that the record that
you all have built, while it does have some instances of
intentional discrimination in covered jurisdictions, is going
to be inadequate for all of the four reasons that I've just
listed.
The record reads as if you all made up your minds ahead of
time and you were trying to compile a record that was going to
justify what you had already decided that politically you
wanted to do. You found some evidence of intentional
discrimination in the covered jurisdictions, but a lot of
what's in there is not about purposeful discrimination. There
is, I think, no real showing that the covered jurisdictions are
more problematic than the noncovered jurisdictions. And
finally, there's very little attention to why the preclearance
provisions and the effects test are the best way to get at the
intentional discrimination that does remain in the covered
jurisdictions.
I think this bill is very vulnerable if it's passed in this
form and is challenged in court.
Mr. Chabot. The chair would just note that the record has
been open and available for all groups of all opinions to
supplement, to add to this record. And any group that would
like to add additional information is certainly welcome to do
so.
Mr. Watt. Would the gentleman yield?
Mr. Chabot. I yield to the gentleman, yes.
Mr. Watt. I hope he will make it clear that the record is
still open.
Mr. Chabot. That's correct. So, Mr. Clegg, if you or groups
that you are aware of would like to add additional material, we
would be happy to receive that.
Mr. Hebert, as at least one person in this room--I know
there are others--that has actually read the whole record,
would you like to comment on Mr. Clegg's comment about the lack
of substance or support for reauthorization of the Voting
Rights Act?
Mr. Hebert. Yes, I would. Thank you for that opportunity.
First of all, I think what the Committee had before it at
the time it started its process was a bill that was already in
place from 1982, that had been amended and extended in 1982. So
you obviously had a starting point, and the appropriate thing
to do was to consider whether those special provisions should
be continued. You don't start with a clean slate, as Mr. Clegg
would have us believe. You know, that kind of ignores the whole
history of discrimination that's taking place in the country.
You don't come into 2006 and say, okay, could we enact this
bill as H.R. 9 today if there had been no Voting Rights Act. I
mean, you know, yeah, if the earth was flat, we would have all
fell off, too.
The problem with Mr. Clegg's analysis is that Congress had
an open mind. The open mind was let's see what evidence is out
there about whether we continue to need these special
provisions. And if you have evidence, Mr. Clegg, or anybody
else, as the Committee said, bring it on. And if those of us
who support the extension have evidence showing continued
discrimination, bring it on. I think that's what the
Committee's process has done.
As to the racial purpose that's out there, the evidence is
replete with examples, in this record, of intentional
discrimination. And the fact is that though there may be
discrimination taking place in some of the noncovered areas,
does that mean that section 5 is not working not only because
there's continued evidence of discrimination in the covered
areas, but perhaps section 5 has worked to stop it, as it was
properly supposed to do?
I mean, for all those reasons, I think that the record that
the Committee has put together has been an impartially
assembled record with no preconceived notions and has attempted
to develop as complete a record as possible to support the
extension. And I think that, in fact, it has done so.
Mr. Clegg. Mr. Chairman, I just want the record to reflect
that I appreciate the opportunity the Committee has afforded me
to testify and that there have been a number of studies,
particularly those published by the American Enterprise
Institute, that have been put into the record that I think make
my point, that there is not an appreciable difference anymore
in the degree of discrimination between covered and noncovered
jurisdictions, and that the record of the covered jurisdictions
is quite consistent with the sworn testimony that Congressman
Lewis gave in Georgia v. Ashcroft.
Mr. Chabot. We appreciate the witnesses' testimony here
this afternoon.
Mr. Watt. Mr. Chairman?
Mr. Chabot. Mr. Watt?
Mr. Watt. I ask unanimous consent just to make a 30-second
comment----
Mr. Chabot. Without objection.
Mr. Watt [continuing]. On something that Mr. Clegg said.
Because since Chairman Sensenbrenner and I had throughout this
process been monitoring the record and trying to craft a bill,
I don't want it to go unchallenged that somehow we started
someplace and ended up the same place. That is just absolutely
not the case. Had this bill been dropped before we started
these hearings, I think it would have been a substantially
different bill in a number of respects.
So anybody who has this notion that this process was
programmed--and Chairman Sensenbrenner was adamant about it.
That's why no bill was dropped until after the hearing record
was developed. That's why we made a particular emphasis with
the Senate to have them have the benefit of the entire House
record by having Chairman Sensenbrenner and Ranking Member
Conyers take it over there and put it into their record. We are
patently aware of the value of having a record here. And for
anybody who's thinking that somehow we started with a notion of
what this bill was going to include and ended with exactly that
notion is just wrong.
So I just--I think I just needed to clarify that.
Mr. Chabot. I thank the gentleman, because I know the
gentleman has been very involved with many of the negotiations
that have gone on with us and we appreciate his work and
cooperation on that.
If there are no further witnesses or evidence to come
before this Committee, we are adjourned. But I would mention
again that we do have a hearing this afternoon at 2 o'clock on
section 203.
And no further business, we are adjourned.
[Whereupon, at 10:54 a.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Conyers, Jr., a Representative
in Congress from the State of Michigan, and Member, Subcommittee on the
Constitution
Chairman Chabot, as we come to the end of our hearing schedule, I
would like to commend you on your commitment to running a fair and open
hearing process. Your flexibility and cooperation was essential to
ensuring that all voices were heard as we approached the
reauthorization of this historic legislation. Your leadership has been
critical to the success of the process, thus far, and a testament to
the fact that civil rights need not be a partisan issue.
On Tuesday, we are introducing H.R. 9, Voting Rights Act
Reauthorization and Amendments Act, which will renew and strengthen the
Voting Rights Act for another 25 years. Chief among the expiring
provisions of the VRA is Section 5, which requires that any change to
voting rules in covered jurisdictions be submitted to either the U.S.
Department of Justice or a federal court for ``preclearnace'' before it
can take effect. Through Section 5, the VRA has prevented thousands of
discriminatory voting changes from undermining minority voters'
meaningful access to the ballot.
Our inquiry in the Act has broken down into two fundamental
questions: 1) Is there an adequate record of discrimination to justify
reauthorization of the expiring provisions ? and 2) Are the expiring
provisions, as interpreted by the courts, still adequate to protect the
rights of minority voters ? These questions should continue to guide us
as we examine H.R. 9 itself.
There is no right more fundamental than the right to vote, but for
nearly a century, many Americans were denied this fundamental right of
citizenship. While we applaud the substantial progress which has been
made in the area of voting rights over the last 40 years, we must
continue our efforts to protect the rights of every American voter with
the reauthorization and restoration of the expiring provision of the
Act. I look forward to the testimony of our witnesses.
__________
Prepared Statement of the Honorable Melvin L. Watt, a Representative in
Congress from the State of North Carolina, and Member, Subcommittee on
the Constitution
Thank you, Mr. Chairman. I want to begin by thanking Chairman
Sensenbrenner for scheduling these hearings on H.R. 9 so that we can
move forward towards passage of a Voting Rights Act reauthorization
this Congress. Let me also thank you and Ranking Member Nadler for
overseeing our compilation of an exhaustive record that fully and
completely supports the policy choices that we have made with the
introduction of this bill. Our record consists of an abundance of
evidence that supports the continuing need for the expiring provisions
of the Voting Rights Act, and was developed with an acute understanding
of and attention to the Supreme Court's ``congruence and
proportionality'' standard that imposes limitations on Congressional
enforcement powers under the 14th (and likely the 15th ) Amendment(s).
This morning we focus primarily on the coverage, preclearance, and
federal observer provisions in the bill. Section 4 of H.R. 9
effectuates a 25 year extension of these provisions. In addition,
Section 3 makes changes to the examiner/observer provisions of the
original bill by, in effect, updating the bill to reflect current
circumstances. Federal examiners are eliminated, while Federal
observers are retained and made subject to independent criteria for
deployment and no longer tied to whether an examiner has been
certified. Section 5 of H.R. 9 makes additional, necessary changes to
Section 5 of the original Voting Rights Act, by addressing restrictive
Supreme Court decisions that misconstrued the original intent of
Congress. Reno v. Bossier Parish II (2000) and Georgia v. Ashcroft
(2003) unhinged over 30 years of judicial interpretation and
administrative implementation of the Voting Rights Act from their
moorings. Together, these two cases returned back to jurisdictions with
a history of discrimination the very discretion in implementing voting
changes that Congress intended to curtail. Without the fix contained in
H.R. 9, covered jurisdictions--those with a history and ongoing record
of discrimination precluding the ability to bail-out from coverage--
could enact and enforce, with impunity, voting changes that
purposefully discriminate or undermine minority voters ability to elect
candidates who share their values and represent their interests.
We've always known that not everyone would appreciate the
conclusions reflected in H.R. 9. Some critics of the bill--one of whom
appears on this panel (Mr. Clegg)--maintain in one breath that our
record is one-sided and, yet in another, cite extensive evidence that
is contained in our record in support of a different approach to
reauthorization. Academics, litigators, election officials, and voters,
all no doubt have a variety of views inspired by various motivations on
the voting rights issues with which we deal in this bill. But it is our
responsibility, our duty to sift through the record and make a
determination how best to serve the interests of society based upon
congressional fact finding.
The cynical notion--articulated in submitted testimony today--that
bipartisan, bicameral consensus on a civil rights bill is tantamount to
racial pandering is not only wrong, it is offensive. A Congress with
far fewer African Americans, Latinos and Asian Americans passed the
Voting Rights Act of 1965 because the Constitution had been violated
for too long. As we sit here today and evaluate the renewal bill, we do
so because the record demonstrates that the work is incomplete. We have
deliberated long and hard over months and months of internal debate; we
have assembled an extraordinary record with competing facts and policy
perspectives; we have listened to every side of this issue from the
left, from the right; and we have reached the considered judgment that
H.R. 9, supported by factual evidence of ongoing discrimination,
vindicates the Constitutional rights of racial and language minorities
to participate fully in the electoral process. This bill is not a
panacea for all of the concerns raised by the record before us. But as
the Supreme Court noted in the first challenge to the Voting Rights
Act, in South Carolina v. Katzenbach, ``legislation need not deal with
all phases of a problem at the same time.'' We must remain vigilant in
crafting legislative remedies to secure the electoral franchise for all
Americans. H.R. 9 goes a long way towards satisfying that goal.
Prepared Statement of the Honorable John Lewis, a Representative in
Congress from the State of Georgia
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Prepared Statement of the Honorable William J. Jefferson, a
Representative in Congress from the State of Louisiana
I would first like to thank Chairman Chabot and Ranking Member
Nadler for their leadership on this most important issue. It is
critical that Congress reauthorize the Voting Rights Act and I am
appreciative of your support of this bill.
Mr. Chairman, the passage of the Voting Rights Act 41 years ago has
had a powerful impact on this nation. Prior to its passage scores of
African-Americans, Latinos, Asians, and Native Americans were excluded
from the process. Yet now it has resulted in so many minorities of all
cultures gaining substantive access to the democratic process. In my
own district, passage of the Voting Rights Act has allowed my
constituents to elect the first black Mayor of New Orleans in Dutch
Morial as well as the first black member of Congress from Louisiana
since Reconstruction.
However, the gains that have been made due to the Voting Rights Act
must not overshadow the need to reauthorize the expiring provisions.
Since Section 5 coverage of the state began, the Civil Rights Division
has object to discriminatory voting changes in Louisiana 146 times, 96
of which have occurred since the last extension in 1982. That is to say
65% of the objections placed against the state have occurred since
Congress last extended protections to minority voters.
Of the 96 objections since 1982 no fewer than half a dozen have
directly concerned attempts to dilute minority influence in Orleans
Parish. These include attempts by the state legislature to eliminate
minority opportunity districts in 1982, 1991, and as recently as 2000.
In 2000, the state's redistricting plan was opposed by the United
States Department of Justice under Attorney General John Ashcroft as
the state once again attempted to eliminate minority opportunity
districts in Orleans Parish despite the fact that the African-American
population of New Orleans had increased in real numbers and as a
percentage of the Orleans Parish population.
According to reports from the National Association for the
Advancement of Colored People (NAACP), People for the American Way
(PAFW), and various press reports, students at Prairie View A&M
University, a largely African-American institution, were erroneously
told that they were ineligible to vote. This is particularly disturbing
as I have three Historically Black Colleges in my district.
Yet this issue goes beyond intimidation and disenfranchisement of
black voters. The Latino population in the United States continues to
grow at fast rate we must continue to provide the growing community
with the resources to participate in the process. To that end, we must
work to reauthorize provisions in the Voting Rights Act that provide
these voters with bi-lingual ballots. It is in large part because of
the important provisions of the Voting Rights Act that over 5,000
Latinos now hold public office in this country. The demographics of the
nation are changing and we must continue to change with it. Only then
will minorities earn true political incorporation. This is why we must
reauthorize section 203 of the Voting Rights Act providing bi-lingual
ballots.
. The displacement caused by Hurricane Katrina makes it even more
critical that this bill come to the floor quickly to be voted on,
passed, and presented for signature. New Orleans has historically taken
an active role in the struggle for minority voting rights. During the
Civil War, free blacks there demanded suffrage; their efforts resulted
in Lincoln's first public call for voting rights for some blacks in the
final speech of his life. Once these rights were won, New Orleans
blacks took an active part in politics, leading to the establishment of
the South's only integrated public school system. In the aftermath of
Hurricane Katrina, New Orleans finds itself at a turning point again in
the struggle for voting rights.
The Supreme Court declared more than a century ago that the equal
right to vote is fundamental because it is ``preservative of all
rights.'' Every citizen of New Orleans, spread across 44 states, must
be able to vote and it is only through the protections afforded to them
by the Voting Rights Act that this will happen. Without the protection
of the Voting Rights Act, these proposed changes would have been
allowed, effectively disenfranchising a large segment of the population
of the state.
Reauthorization of Section 5 of the Act, requiring Department of
Justice preclearance of changes to voting policies and procedures in
certain jurisdictions, is vital. Section 5 must not be removed or
weakened. This is of especial importance in areas with a documented
history of exclusion and discrimination such as Louisiana.
Reauthorization of the Voting Rights Act of 1965 is essential to
our Nation because of the continuing efforts of some to deny voting
rights to segments of our population. While progress has undeniably
been made the task is far from over. Reauthorizing this act will bring
us one more critical step forward to fulfilling the dream of over 500
non-violent protestors who bore the brunt of the backlash on Bloody
Sunday. It will send a clear message to those who would seek to
suppress voting rights that their machinations will not be tolerated.
Reauthorizing this act will send a clear message to multitude of
minority voters that their voices have been and will continue to be
heard. Most importantly, it will bring this country one more crucial
step toward fulfilling the ideals articulated by the Founding Fathers
and true inclusion for all.
Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Alaska, Michigan, New Hampshire, and South Dakota
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in California
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Arkansas
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Oklahoma
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Mississippi
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in New York
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Appendix to the Statement of Roger Clegg: An Assessment of Voting
Rights Progress in Tennessee
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Prepared Statement of the Honorable J.C. Watts, Jr.
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Prepared Statement of Jan Tyler, former Denver Election Commissioner
This statement is to convey my opposition to the renewal of Section
203 and Section 4(f)(4), the language provisions of the Voting Rights
Act of 1965, as amended.
INTRODUCTION
My name is Jan Tyler. I was elected twice as a City and County of
Denver Election Commissioner in l995 and l999. The Commission was
established in 1904 with the Denver City Charter and is comprised of
two elected Commissioners and the Clerk and Recorder, who is appointed
by the Mayor.
I was certified as a Certified Elections Registration Administrator
in 2001 through a professional organization, The Election Center, which
is affiliated with Auburn University. I renewed my certification in
2004. My career as an election administrator has always been an
avocation, which I have continued as a volunteer election observer in
Montenegro, Serbia, Ukraine and most recently last fall a two month
stay in Kazakhstan.
For the purposes of understanding opposition to the renewal of the
VRA, I believe it is essential to respect the professional objectivity
of the election administrator.
MY EXPERIENCE WITH THE VRA
Justice Department officials first contacted the Denver Election
Commission in 2002 to inform us that Denver County had been added to
the list of jurisdictions covered under Sec. 203.
We were told the Commission had to implement an extensive program
to print ballots in Spanish, distribute voting materials in Spanish,
and design outreach programs in Spanish.
This seemed fundamentally un-American to me. At the time I was a
member of the National Society of Daughters of the American Revolution,
and I was familiar with the NSDAR's involvement in the naturalization
ceremonies for new citizens.
I thought new citizens were supposed to speak English as a
requirement of citizenship.
My own grandfather, a Polish immigrant, naturalized on August 29,
l918. I completely empathize with the immigrant--before my parents
changed my name, I was born Jan Zawistowski. This was my identity, and
I was proud to be born his first grandchild on August 29, 1950, the
same day my grandfather's naturalization took place many years before.
But my grandfather would have been appalled if the government
decided to print his American ballots in Polish, even if l0,000 of his
closest Polish friends did live in Atlanta.
Although I am certain the intentions behind the bilingual voting
assistance requirements of the VRA were good, its effect has been to
discourage new immigrants from assimilating and learning English. These
provisions have also imposed significant costs on covered
jurisdictions, including Denver County. I estimated at the time that
Spanish assistance could add up to $80,000 to the more than $500,000 it
costs to conduct an election in Denver County.
The cost estimates were accurate and about $80,000 has been spent
every year since 2002 to comply.
NO JUDICIAL REVIEW
The VRA commands that there be no judicial review of coverage
determinations under Sec. 203, which are made by the U.S. Census.
This is not good government. Coverage determinations should be
subject to scrutiny by the courts.
One of the most significant problems with the way the Census makes
coverage determinations today has to due with way the Bureau defines
limited English proficiency (LEP).
Specifically, Sec. 203 states: ``the term ``limited-English
proficient'' means unable to speak or understand English adequately
enough to participate in the electoral process.''
The Census Bureau is interpreting this definition of LEP to include
persons who self-identify themselves as speaking English ``not at
all'', ``not well'', or ``well.'' Those who identify themselves as
speaking English ``well'' should not be counted as ``limited English
proficient'' for the purpose of making coverage determinations under
Sec. 203.
The Census Bureau's overly broad definition of LEP has resulted in
many counties being covered under Sec. 203 that should not be.
I doubt that the truly limited English proficient population of
Denver County meets the 10,000 or 5% threshold required to trigger
coverage under the law. But since the Bureau's coverage determinations,
including the definition of LEP used to make such determinations,
``shall not be subject to review in any court'' there is no remedy for
Denver County or other covered jurisdictions.
I also encountered problems with the DOJ on the enforcement side of
the Sec. 203 requirements.
Given my duty as an Election Commissioner to uphold the law, I
decided to encourage full compliance. But when I asked DOJ officials
for written and customized instructions for complying, I was told ``We
do not tell you specifically what to do.'' Although there are some
general, written guidelines, we were told that ``voter complaints''
would be used by DOJ officials to judge whether we were complying with
the law. As anyone with any election administration experience knows,
this is a poor way to judge compliance. There are many complaints even
after the most well run election.
One DOJ official went so far as to tell me ``we'll know you've
complied when we see it.''
SURNAME ANALYSIS
The DOJ uses a form of ethnic profiling called ``surname analysis''
to identify locations for bilingual polling districts in covered
jurisdictions. The Justice Department also compels covered
jurisdictions to conduct voter outreach efforts (e.g. mass mailings)
targeting limited English proficient voters based on analysis of the
surnames of voters living in covered jurisdictions.
This is a highly inaccurate way to target LEP voters. Many people
with Hispanic or Asian surnames speak English ``very well.'' Women
whose native language is English, but who marry and take on Hispanic,
Asian, or surnames of other covered language minority groups, do not
need bilingual ballots.
Surname analysis is also insulting to immigrants who have
naturalized and learned English in order to vote. This is why some
jurisdictions get furious responses from both Spanish and, of course,
English speakers who are outraged that they have been singled out just
because of a Spanish sounding surname.
The DOJ should be barred from using surname analysis. It should
also be prohibited from requiring covered jurisdictions to use surname
analysis for the purpose of implementing Sec. 203. Instead, Census data
should be used to target only those voters who identify themselves as
speaking English ``not at all'' or ``not well.''
CONCLUSION
Members of the Committee, I care about how we administer our
elections. There is a difference, and will always be a difference,
between the perspective of an Election Administration professional,
whether elected or serving as a career appointee, and those who are
political activists.
As an Election Administrator, I urge you to decline to renew
Section 203 and Section 4(f)(4) of the Voting Rights Act.
Ana Henderson and Christopher Edley, Jr., ``Voting Rights Act
Reauthorization: Research-Based Recommendations to Improve Voting
Access,'' Chief Justice Earl Warren Institute on Race, Ethnicity and
Diversity
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