<DOC> [109 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:28213.wais] S. Hrg. 109-458 AN INTRODUCTION TO THE EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT AND LEGAL ISSUES RELATING TO REAUTHORIZATION ======================================================================= HEARING before the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS SECOND SESSION __________ MAY 9, 2006 __________ Serial No. J-109-74 __________ Printed for the use of the Committee on the Judiciary _____ U.S. GOVERNMENT PRINTING OFFICE 28-213 WASHINGTON : 2006 _________________________________________________________________ For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma Michael O'Neill, Chief Counsel and Staff Director Bruce A. Cohen, Democratic Chief Counsel and Staff Director C O N T E N T S ---------- STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 4 Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin...................................................... 4 Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts.................................................. 2 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared statement............................................. 226 Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 2 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania................................................... 1 WITNESSES Davidson, Chandler, Professor Emeritus, Rice University, Houston, Texas.......................................................... 5 Hasen, Richard L., William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles, California................ 8 Issacharoff, Samuel, Reiss Professor of Constitutional Law, New York University School of Law, New York, New York.............. 13 McDonald, Laughlin, Director, ACLU Voting Rights Project, Atlanta, Georgia............................................... 11 Shaw, Theodore M., Director-Counsel and President, NAACP Legal Defense and Educational Fund, Inc., New York, New York......... 7 QUESTIONS AND ANSWERS Responses of Richard L. Hasen to questions submitted by Senators Specter, Cornyn, and Sessions.................................. 35 Responses of Chandler Davidson to questions submitted by Senators Cornyn and Leahy............................................... 42 Responses of Samuel Issacharoff to questions submitted by Senators Specter, Sessions and Cornyn.......................... 72 Responses of Laughlin McDonald to questions submitted by Senators Specter, Kennedy, Schumer and Cornyn........................... 78 Responses of Theodore M. Shaw to questions submitted by Senators Specter, Cornyn, Leahy, Kennedy and Schumer.................... 150 SUBMISSIONS FOR THE RECORD Davidson, Chandler, Professor Emeritus, Rice University, Houston, Texas, prepared statement...................................... 201 Hasen, Richard L., William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles, California, prepared statement...................................................... 214 Issacharoff, Samuel, Reiss Professor of Constitutional Law, New York University School of Law, New York, New York, prepared statement...................................................... 220 McDonald, Laughlin, Director, ACLU Voting Rights Project, Atlanta, Georgia, prepared statement........................... 228 Shaw, Theodore M., Director-Counsel and President, NAACP Legal Defense and Educational Fund, Inc., New York, New York, prepared statement............................................. 264 AN INTRODUCTION TO THE EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT AND LEGAL ISSUES RELATING TO REAUTHORIZATION ---------- TUESDAY, MAY 9, 2006 U.S. Senate, Committee on the Judiciary, Washington, DC. The Committee met, pursuant to notice, at 9:30 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Sessions, Graham, Cornyn, Leahy, Kennedy, and Feingold. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE OF PENNSYLVANIA Chairman Specter. Good morning, ladies and gentlemen. The Judiciary Committee will now proceed. Today we have the second in a series of hearings on renewing the temporary provisions of the Voting Rights Act. It is clear that the Voting Rights Act of 1965 has been effective in combating State-sponsored discrimination against minority voters, but there is still some discrimination which persists, and any is too much on the important right to vote. The Supreme Court has held that we must establish a record and under the 14th and 15th Amendments, they have imposed a complex test of a program or legislation which must be congruent and proportionate. That has involved some grave complexities as they have interpreted, for example, the Civil Rights Act and Lane v. Tennessee and Garrett v. Alabama, making it very difficult to figure out exactly what is congruent and proportionate. There had been the test of substantial evidence, and in Lane they upheld the statute as it applied to access, and in Garrett they rejected the statute as applied to discrimination. So we have a challenge to establish a record which will withstand constitutional scrutiny. There has been a shift in the Supreme Court standards with the more recent cases. Justice O'Connor's opinion imposed a standard of ``influence districts where minority voters may not be able to elect a candidate of choice, but play a substantial if not decisive role in the electoral process.'' Today we have a panel of experts to explore the constitutional, legal issues on very touchy subjects like how do you make a determination of substantial if not decisive? So we are in a tough line. And then in Reno v. Bossier Parish or Bossier Parish II, the Supreme Court held that Section 5 prohibited voting changes that had the purpose to retrogress or reduce minority voting strength. We have a distinguished panel, and we welcome you here, and very much appreciate your coming in to lend support to our efforts to establish this record. Now I want to yield to, and with my compliments, Senator Kennedy, for his outstanding leadership on this important subject. STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE STATE OF MASSACHUSETTS Senator Kennedy. Thank you very much, Mr. Chairman, and thank you for setting these series of hearings that are going to be enormously important in terms of building the record in support of this legislation. I think all of us understand this is one of the most important undertakings that we will have in this Congress, the extension of the Voting Rights Act, and I think all of us are very encouraged by the extraordinary bipartisanship which has been demonstrated here in the Senate, as well as in the House, and between the House and the Senate, we are off to a very important and favorable start. I remember the 8 days of hearings that we had in this Committee in 1965, and the many days of debate on the floor, and we were able to pass the landmark civil rights law in the 1965 Act, with President Johnson signing this legislation in the President's Room in the Capitol. None of us imagined at that time that this legislation would be necessary in the year 2006 or into this century. But unfortunately, as the House record makes very, very clear, and other sources, that many Americans still face the barriers on voting because of race and ethnic background, the language-minority status, so the Congress must decide whether those barriers make the renewal of the Act, expiring provisions, necessary now, and in what form. As the Chairman has pointed out, part of this assessment is understanding the relevant legal framework, and he has outlined those challenges in his opening comments. So part of today's discussion may seem technical, but it really goes to the heart of protecting voting rights and ensuring that any bill we pass in this area gets it right. I thank the Chair and look forward to the testimony. Chairman Specter. Thank you very much, Senator Kennedy. Senator Sessions, would you care to make an opening statement? STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF ALABAMA Senator Sessions. Briefly, Mr. Chairman. I would thank you for having a good panel today. I am not sure, we may need to at some point hear from attorneys general and Governors who have to work with the Act on a regular basis, but I think the panel will be fair, and have both sides be heard. Mr. Chairman, Alabama has a very grim history of voting rights in our State. Before 1965 only 19 percent of African- Americans in our State were voting, and they were denied the right to vote with any number of tactics and strategies, but it was in many ways a ruthless decision just to deny them the right to vote, so that the majority of the white community could maintain power, and that is just what it was. The Voting Rights Act, however one feels about it in terms of constitutionality or how it was crafted, was one of the best things that ever happened to the State. We now have--at one point I think we were the No. 1 State in the Nation with African-American office holders. I think today that may continue to be true, or we may be No. 2. In this last Presidential election, according to the Census Bureau, a larger percentage of African-Americans voted than whites in the State of Alabama. Now, that is the goal of the Act, that was the purpose of the Act, to have that kind of thing occur. The large numbers of African-Americans holding important offices, for example--there were over 750 elected officials, who are African-Americans in Alabama. That includes a United States Congressman, eight State Senators, 27 members of the State House of Representatives, 46 mayors, and 80 members of county commissions, school board members, town council members and the like. So I just would first want to say that the people of Alabama understand that this change is good, and that the people of my State do not want to do anything that would suggest that there would be any interest in moving away from this great right of everybody to vote, and including African- Americans in our State, and I think that is important to say. They do not want to fight over it. We are growing economically. We are doing well economically, and we want to continue to do so, and that would never have happened had the kind of discrimination in the '60s and before continued today. I want to be real clear about that. How we deal with the Act is something that is worthy of discussion. Some of our panelists have different ideas, and we would be delighted to hear them. I think we should think about this in a calm and reasoned and effective way, and not allow ourselves to be driven by racial politics or attempts to polarize votes, or attempts to gain political advantage on one side or the other. We ought to ask ourselves how is this Act working? What is necessary? How we should improve it if need be, and maybe some other areas of the country ought to be covered by it. Certainly I hear complaints in big cities. I never heard any complaints out of Philadelphia about votes, but I have in Boston and Chicago and New York, and so there are other areas of the country perhaps that need some of the provisions in here to apply to them. I am hopeful that we will have a good discussion, that we will reauthorize this Act in a way that guarantees that there is no backsliding on the right of African-Americans to vote in the south or in any other part of the country. One of the best things that has happened, I will repeat, to our State, is the full participation of African-Americans in public life, and that was denied to them before this Voting Rights Act was enacted. As we go forward, I would hope that we will think carefully about how to make it applicable to the State in effective ways. As a United States Attorney I had the responsibility of enforcing the Act. As Attorney General of Alabama for a short period, 2 years, I saw it from the State side. I see my colleague, Senator Cornyn, here; he is former Attorney General of Texas. You have to deal with it in a number of ways. So we have some perspective on the practical application of the Act that I think would be worthy of some discussion and detail as we go forward. Thank you, Mr. Chairman. Chairman Specter. Thank you, Senator Sessions. Senator Cornyn, would you care to make an opening statement? STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF TEXAS Senator Cornyn. Thank you, Mr. Chairman. Just briefly. Thank you for the opportunity, and thank you for conducting these important hearings. I can think of few issues more important to our country than full participation in the political process, and that is what we are here to try to guarantee and to continue. I particularly appreciate your courtesies, Mr. Chairman, in making sure that we have an orderly process and an opportunity to have a full and complete record during the course of these hearings, and I particularly look forward to hearing from the witnesses today and tomorrow and the coming weeks about the expiring provisions of Section 5 of the Voting Rights Act, and specifically about which jurisdictions throughout our Nation should be subject to Federal oversight in the future and why. I know that there are a number of significant changes in the legislation that has been introduced, including the overruling of a couple of opinions of the U.S. Supreme Court, and I think we ought to look at those very carefully. Finally, I would say that we all know that whatever we do as a Congress will be scrutinized in the Federal Courts, and part of our goal I think ought to be to make sure that, to the extent possible, we make sure that Congress will prevails, and that anything we do in terms of reauthorizing the Voting Rights Act is not susceptible to a likely successful challenge in the Federal Courts. So I appreciate very much the opportunity to be here and welcome each of the witnesses, I look forward to your testimony. Chairman Specter. Thank you very much, Senator Cornyn. Senator Sessions, Senator Cornyn and Senator Coburn had written especially to me on the issue of adequacy of the hearings and an opportunity for a wide variety of witnesses to appear, and I have assured them that that would be the case. We are trying to comply with the request of the House to move ahead. Senator Feingold has arrived. Would you care to make an opening statement, Senator Feingold? STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE STATE OF WISCONSIN Senator Feingold. Just a couple of comments. Let me thank our witnesses for being here, particularly on such short notice. I have asked to be added as a co-sponsor of the reauthorizing legislation that the chairman and Senator Leahy have introduced, and I am glad that the Committee is moving forward with the hearings process. This bipartisan legislation sends a strong and important message that Congress remains committed to protecting constitutional rights of minority voters under the 14th and 15th Amendments. I believe this legislation is crucial, and I look forward to its prompt approval in the Senate and the House. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Senator Feingold. We turn now to our first witness, Professor Chandler Davidson, Professor at Rice University, and the Tsanoff Chair of Public Affairs Emeritus. He and Professor Bernard Grofman of the University of California directed about 30 political science historians and sociologists and voting rights lawyers in an effort to assess the impact of the Voting Rights Act in the South, and his resulting book, ``Quiet Revolution in the South'' won the Richard Fenno prize awarded by the American Political Science Association for the best book published on legislative behavior of that year. He holds a bachelor's degree from the University of Texas, a master's and Ph.D. from Princeton. Thank you for joining us, Professor Davidson. Our customary procedure is to have 5 minutes for statements by witnesses. Your full statements will be included in the record, and then we will turn to the panel for 5-minute rounds. STATEMENT OF CHANDLER DAVIDSON, PROFESSOR EMERITUS, RICE UNIVERSITY, HOUSTON, TEXAS Mr. Davidson. Chairman Specter, and distinguished members of this Committee, thank you for inviting me to testify before you today. I am deeply honored. The Voting Rights Act was the climax of the period described as the Second Reconstruction. Passed at the behest of President Lyndon Johnson by a bipartisan Congressional majority in 1965, its purpose is to enforce the 15th Amendment. It consists of both a permanent part applying nationwide, and a nonpermanent one consisting of features originally intended to expire in 1970. Congress, however, renewed and amended them in 1970, 1975 and 1982. The Act has targeted both major types of racial vote discrimination: disenfranchisement and vote dilution. The first is exemplified by literacy tests administered unfairly by whites. The second consists of procedures in predominantly white venues, which combined with racially polarized voting, prevent minority voters from electing their preferred candidates. The major permanent feature of the Act is Section 2, which applies nationally. It prohibits any voting qualification or practice, whose purpose or result is denial or abridgement of voting rights on the basis of a citizen's race, color or membership in one of four language groups. An important nonpermanent feature is Section 5. It requires all covered States and political subdivisions to submit proposed election- related changes for preclearance, either to the Attorney General or the U.S. District Court for the District of Columbia, to ensure that the proposed change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. Currently, the jurisdictions subject to preclearance include eight States in their entirety and parts of eight others. Another important temporary provision of the Act, contained in Sections 6 through 9 and 13, enables the Attorney General to send Federal observers to certain jurisdictions when racial vote discrimination appears likely on election day. Yet another temporary provision concerns citizens whose proficiency in English is limited. In 1975 Congress concluded that, ``through the use of various practices and procedures, citizens of language minorities have been effectively excluded from participation in the election process,'' including American Indians, Asian Americans, Alaska natives and citizens of Spanish heritage. Under different coverage formulas, Section 4(f)4 and Section 203 require language assistance for these citizens. The Act has had a major impact in incorporating racial and language minorities into the polity. Perhaps the most striking evidence is the extraordinary increase in black elected officials in the South. In 1970 there were 565. In 2000, there were 5,579. Nonetheless, race is still a major fault line in American politics, and problems of racial discrimination in voting are widespread, if diminished. Research in 2005 by the National Commission on the Voting Rights Act, a task force created by the Lawyers' Committee for Civil Rights Under Law, focused on the extent to which the Federal Government and private citizens employed the Act to combat racial or language-group discrimination since 1982. Among its findings, the Justice Department sent 626 letters objecting to one or more proposed discriminatory election changes in Section 5 jurisdictions, and there would have been even more if some jurisdictions had not withdrawn their proposals after the Department had requested more information about them. The Department sent several thousand Federal observers to participate in 622 election day coverages when it had reason to expect racial problems at the polls. Not only did they sometimes report discrimination, their presence probably discouraged even more. A nationwide study of Section 2 lawsuits with results favorable to minority plaintiffs, conducted at the University of Michigan Law School, revealed 117 reported cases between 1982 and 2005. For the same period, research by the National Commission, revealed 653 successful Section 2 cases, reported and unreported, in nine Section 5-covered States alone. In summary, the Commission's findings and other research point to a worrisome persistence of activities the Act was fashioned to prevent. For this reason, it is my opinion, as one who has written about the Act and its effects for more than 30 years, that its nonpermanent features should be renewed. [The prepared statement of Mr. Davidson appears as a submission for the record.] Chairman Specter. Thank you very much, Professor Davidson. Our next witness is Mr. Theodore M. Shaw, Director-Counsel and President of the NAACP Legal Defense and Educational Fund, who has a reputation as one of the Nation's leading civil rights attorneys. Since joining the Legal Defense Fund in 1982, he has litigated school desegregation, capital punishment, and other civil rights cases. He has taught constitutional law at Michigan Law School, Temple Law School and New York Law School. He has a bachelor's degree from Wesleyan and a law degree from Columbia, where he was a Charles Evans Hughes Fellow. Thank you for coming in today, Mr. Shaw, and the floor is yours for 5 minutes. STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW YORK Mr. Shaw. Thank you, Mr. Chairman, for inviting me to participate in this important hearing, and I thank the other distinguished members of the Committee. The Legal Defense Fund has been engaged in voting rights almost since its inception over six decades ago, and we have been engaged in the enforcement of the Voting Rights Act since the moment it was enacted. We have a very solid conceptual understanding of the Voting Rights Act, but our understanding is not limited to a conceptual analysis, as important as that is. It is tempered by experience in representing African- American plaintiffs in litigation, including some of the most important cases involving the interpretation and application of the Voting Rights Act that have been decided by the Supreme Court in other cases. We have been involved in almost every major voting rights case before the Supreme Court. This experience is directly rooted in our representation of African- Americans. The Voting Rights Act is an integrated statutory scheme that works to address one of this Nation's most difficult and deeply entrenched betrayals of democracy. It is only appropriate that Congress enacted one of the most vigilant laws to successfully address that betrayal. We recognize what has been called the new federalism, which the Supreme Court has articulated in the Boerne line of cases, and those cases have raised significant questions about the scope and the reach of Congressional authority under Section 5 of the 14th Amendment. But even in recognizing that, we also recognize that in each of the cases that have followed Boerne, whether we are talking about Florida Prepaid, Kimel, Morrison, Garrett, Hibbs, Tennessee v. Lane, in each of those cases in which the Voting Rights Act has been referenced, the Court has held up the Voting Rights Act as an example of proportionality and congruence, and there is no indication on the part of the Court, certainly a majority of the Court, that the Voting Rights Act itself is unconstitutional. We believe that the Court has pointed to the Act as an example of the kind of proportionality that would survive Boerne and of congruence, and we recognize that the Court is in flux. It has changed. But no one can read the Court's tea leaves. The Legal Defense Fund believes that Congress, while respectful of the Supreme Court's admonitions concerning proportionality and congruence, should not, given the successes of the Act, undermine the strength of the Act by preemptively weakening it on anticipation of a hostility that exceeds anything that the Court has said. We believe that the best indication of where Congress is, is the Monterey County case, Lopez, that was decided, in which the Court declined to call into question the constitutionality of Section 5's region application. We also believe at the Legal Defense Fund that Congress should exercise an abundance of caution as it reauthorizes the temporary provisions of the Voting Rights Act, and restores the Voting Rights Act to its full strength. But we believe that an abundance of caution should be reflected, not in a weakening of the reach of the Act, but rather, in ensuring that the record is a strong record. That record exists as manifested in the reports that have been done by the Leadership Conference with respect to the States. It exists with respect to the National Commission, with respect to the ACLU report, and it is a strong record. Finally, some say that the Act is a victim of its own successes. We caution, by looking at the school desegregation experience, we caution what may happen when we remove the protection of the Constitution or civil rights initiatives or laws. There is a danger in back-sliding. There is a danger in resegregation of politics, just as we have seen in resegregation of public schools with the abandonment of desegregation efforts that were vigorously prosecuted and protected by the courts. Thank you, and I look forward to a question and answer period. [The prepared statement of Mr. Shaw appears as a submission for the record.] Chairman Specter. Thank you very much, Mr. Shaw. Our next witness is Professor Richard Hasen, the Hannon Distinguished Professor of Law at Loyola. He is the co-author of a leading case book on election law, and has authored more than three dozen articles on the subject, and his most recent book ``The Supreme Court and Election Law: Judging Equality from Baker v. Carr to Bush v. Gore.'' It is quite a treatise. He has his bachelor's degree from the University of California, has a master's, J.D. and Ph.D. from UCLA. We welcome you here, Mr. Hasen, and look forward to your testimony. STATEMENT OF RICHARD L. HASEN, WILLIAM H. HANNON DISTINGUISHED PROFESSOR OF LAW, LOYOLA LAW SCHOOL, LOS ANGELES, CALIFORNIA Mr. Hasen. Thank you very much, Chairman Specter, and Senators on the Judiciary Committee. I appreciate this opportunity to appear before you today to testify about Senate Bill 2703 concerning reauthorization of the expiring provisions of the Voting Rights Act. I come before you as a strong supporter of the Act, who believes the expiring provisions should be renewed in some form, but also as someone, who after studying this issue for a number of years, has deep concerns about the constitutionality of the proposed amendments. I believe the Act has been an unqualified success in a remarkably increasing minority voter registration and turnout, increasing the number of African- American and Latino elected officials, and the ability of minority voters to effectively exercise their right to elect representatives of their choice. But I urge the Committee to spend the time to craft a bill that will both pass constitutional muster in the Supreme Court and do the important work of continuing to protect minority voting rights in this country. The constitutional issue, which I have explored in a Law Review article and have submitted to the Committee, is this: in recent years the Supreme Court has held that Congress has limited power to enact civil rights laws regulating the States. Beginning with the 1997 case, City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional State discrimination to justify laws that burden the States. In addition, whatever burden is placed on the States must be congruent and proportional to the extent of the violations. Beginning in 1965, Congress imposed the strong preclearance remedy on those jurisdictions with what the Supreme Court called a pervasive, flagrant and unremitting history of discrimination on the basis of race. In fact, Carolina v. Katzenbach, the Court upheld Section 5 of the Act as a permissible exercise of Congressional power. What has changed since 1965? Both the law and the facts. On the law, the Court, in my view, wrongly, has placed a higher burden on Congress to justify laws aimed at protecting civil rights. On the facts we have an evidentiary problem. Because the Act has been so effective, it will be hard to produce enough evidence of intentional discrimination by the States so as to justify the extraordinary preclearance remedy for another 25 years. I am afraid that much of the evidence referenced in the bill's findings will not be enough for the Supreme Court. For example, the findings point to Department of Justice objections to preclearance requests by the States. As you can see from Figure 3 in my article, in recent years objections have been rare. In the most recent 1998 to 2002 period, DOJ objected to a meager 0.05 percent of preclearance requests. Updating these data, DOJ interposed just two objections nationwide overall in 2004, and one objection in 2005. The problem with using objections as evidence of intentional State discrimination is unfortunately even worse than it appears. In the 1990's DOJ adopted a policy of objecting to certain State actions that were perfectly constitutional, a policy the Supreme Court later rejected. The House Judiciary Committee has put together a voluminous record to support renewal of Section 5. Although I have not yet reviewed that entire record, my impression from what I have reviewed is that the record documents isolated instances of intentional State discrimination voting. The vast majority of evidence relates to conduct that does not show constitutional misconduct by the States. Moreover, the record seems to show that the problems continue to exist across the Nation. The Court may insist on evidence that covered jurisdictions present greater problems than the rest of the Nation to justify the geographically selective preclearance remedy. I have heard the argument that the Court will give Congress a pass on Congress's requirements to produce evidence because Section 5 has been such a good deterrent. I hope that that theory is right, but I am not confident that the new Supreme Court would be inclined to agree on this point. The problem with such a theory is that it would justify preclearance for an undetermined amount of time into the future. In addition to the problem of producing enough evidence of intentional State discrimination, there is the tailoring issue. That current Act uses a formula for coverage based on a jurisdiction's voter registration or turnout, and its prior use of a discriminatory tester device for voting, such as a literacy test. The proposed amendments would not update this formula in any way. The Act relies on data from 1964, 1968 or 1972 elections. This turnout figures, particularly turnout in minority communities, bear little resemblance to turnout figures today. I recognize this is politically difficult, but Congress should update the coverage formula based on data indicating where intentional State discrimination in voting on the basis of race is now a problem or is likely to be one in the near future. Here are three additional steps that Congress should carefully consider to bolster the constitutional case. First, Congress should make it easier for covered jurisdictions to bail out from coverage under Section 5 upon a showing that the jurisdiction has taken steps to fully enfranchise and include minority voters. The current draft does not touch bailout, and few jurisdictions have bailed out in recent years. Second, Congress should impose a shorter time limit, perhaps 7 to 10 years for extension. The bill includes a 25- year extension, and the Court may believe it is beyond congruent and proportional to require, for example, the State of South Carolina to pre-clear every voting change, no matter how minor, through 2031. Third, Congress should more carefully reverse only certain aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it easier for covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions is eased, and therefore, the law looks more congruent and proportional. Reversing the case as a whole, as this bill apparently would do, though the language in this respect is poorly drafted, could weaken the constitutional case for the bill. I would suggest tweaking rather than reversing the Ashcroft standard. Besides these changes, there are ways to strengthen the bill to assure that the new provisions of the Act remain a crucial element in assuring political equality and the right to vote for all Americans, regardless of race. At the top of my list, given recent troubling allegations of partisan manipulation of the preclearance process is for the Court to reverse the Supreme Court's holding in Morriss v. Gressette. This reversal would allow appeals of DOJ decisions to grant preclearance in controversial and politically charged cases, such as those involving Texas redistricting and the Georgia voter identification law. Thank you for the opportunity to present these views. I look forward to your questions. [The prepared statement of Mr. Hasen appears as a submission for the record.] Chairman Specter. Thank you, Professor Hasen. Our next witness is the Director of the American Civil Liberties Union Voting Rights Project, Laughlin McDonald. He has had a leading role in litigating the Voting Rights Act of 1965, being involved in almost three dozen lawsuits, and has won some of the most significant victories for the ACLU on issues such as enforcement of one person-one vote. An author of five books, has more than a dozen articles on voting discrimination, he received his bachelor's from Columbia and his law degree from the University of Virginia. Thank you for coming in today, Mr. McDonald, and the floor is yours. STATEMENT OF LAUGHLIN MCDONALD, DIRECTOR, ACLU VOTING RIGHTS PROJECT, ATLANTA, GEORGIA Mr. McDonald. Thank you very much, Mr. Chairman, and members of the Committee. On behalf of the ACLU, I would like to express our strong support for the pending bill, which would extend Section 5 and remedy the Bossier II and Georgia v. Ashcroft decisions. I also want to point out that the Section 5 provisions have been challenged a number of times, and all those challenges have been rejected. It was challenged in 1965 by six southern States in South Carolina v. Katzenbach. The 1975 extension of Section 5 was challenged by the city of Rome, Georgia, and was rejected by the Supreme Court. After the extension of Section 5 in 1982, Sumter County, South Carolina filed yet another challenge to the constitutionality of the statute, and it said essentially that the 1982 extension was unconstitutional because the trigger coverage formula was outdated. The three- judge court, however, rejected that challenge and held, ``Section 5 had a much larger purpose than to increase voter registration in a county like Sumter to more than 50 percent.'' People have talked about the Boerne decision, but I would echo Ted Shaw's comments that every one of the so-called Boerne decisions expressly cites the Voting Rights Act and Section 5 as preeminent examples of Congressional authority to enforce the race discrimination provisions of the 14th and 15th Amendment, and it is especially worthy of note that the Supreme Court itself relied upon City of Boerne in 1999 in rejecting a challenge to the constitutionality of Section 5 made by the State of California. It held that legislation which deters or remedies constitutional violations can fall within the sweep of Congress's enforcement power, even if the process that prohibits conduct which is not itself unconstitutional and intrudes into legislative spheres of autonomy previously reserved to the States. I sometimes think the Supreme Court does not write with the felicity and clarity that it ought to, and certainly ``congruence and proportionality'' is a clumsy phrase. But I think also the sunset provisions of any extension of Section 5, as well as its limited geographic application, would further argue for its constitutionality, and Boerne, for example, makes precisely that point, that termination dates or geographic restrictions tend to ensure Congress's means are proportionate to ends legitimate. I think the case for extension of Section 5 has been documented very well by the various organizations and by the testimony of witnesses, both before the House and the Senate, and I will not repeat what is contained in those reports, but I would like to update the report that the ACLU filed by bringing to the Committee's attention two recent developments in the courts that were not covered in the report. In May 5, 2006, just several days ago, the Court of Appeals of the Eighth Circuit reversed a decision of the District Court which had dismissed a vote dilution challenge to elections for the city of Martin in South Dakota, and it concluded, ``Plaintiffs proved by a preponderance of the evidence that the white majority usually defeated the Indian-preferred candidate in Martin aldermanic elections.'' And the Court also noted the ongoing history of intentional discrimination against Native Americans in Martin. Here is what the Court said: ``For more than a decade Martin has been the focus of racial tension between Native-Americans and whites...Most recently, resolution specialists from the Justice Department attempted to mediate and end the claims of racial discrimination by the local sheriff against Native-Americans.'' Martin is the county seat of Bennett County, which is located between Shannon and Todd Counties, both of which are covered by Section 5. I think the history of discrimination reported in that decision and other decisions in Indian country really underscore the ongoing nature of discrimination and strongly support the continuation of Section 5. There is a more recent lawsuit that has been filed just 2 weeks ago because Randolph County, Georgia, had implemented a voting change without complying with the Voting Rights Act. What they essentially did was to adopt a redistricting plan that took a black incumbent out of his majority black district, Mr. Cook, and put him into a majority white district. Well, given the existence of racial polarization in Randolph County, there was very little prospect that Mr. Cook, who had the overwhelming support of black voters, would be elected. We had a hearing before a single-judge court who granted a temporary restraining order, in effect enjoining the implementation of that change, and we have a hearing before a three-judge court later on this month. But all of that underscores continuing problems. And let me finally say that one of the most sobering facts to emerge from the report compiled by Congress is the continuation of racially polarized voting. I would suggest that everyone read the 2002 opinion by the three-judge court in the Colleton County case, and it said that, ``Racially polarized voting has seen little change in the last decade. Voting in South Carolina continues to be polarized to a very high degree.'' And I would close, Mr. Chairman, by saying that the Supreme Court has called the right to vote a ``fundamental political right preservative of all rights,'' and the House and Senate bills will help ensure that that fundamental right continues to remain a reality. [The prepared statement of Mr. McDonald appears as a submission for the record.] Chairman Specter. Thank you very much, Mr. McDonald. What was the situs of the case involving Mr. Cook? Mr. McDonald. Randolph County, Georgia, Your Honor. Chairman Specter. Georgia? Mr. McDonald. Yes, sir. Chairman Specter. We have 9 minutes left on a vote, so we will recess very briefly, and we will return just in a few minutes. When the votes occur, that is our No. 1 duty, even with the distinguished panelists we have here today. [Recess 10:10 a.m. to 10:30 a.m.] Chairman Specter. We turn now to the final witness on the panel, Professor Samuel Issacharoff, Professor of Constitutional Law at New York University; lengthy career in legal education, having taught at Columbia, Oxford, University of Texas, and University of Pennsylvania; published extensively, including the book ``The Law of Democracy: Legal Structure of the Political Process''; a bachelor's degree from State University of New York, law degree from the Yale Law School, where he served as an editor of the Yale Law Journal. Thank you for joining us, Professor Issacharoff, and we look forward to your testimony. STATEMENT OF SAMUEL ISSACHAROFF, REISS PROFESSOR OF CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW YORK Mr. Issacharoff. Thank you very much, Chairman Specter and members of the Committee. It is a great honor to be here. I began my legal career as a law student watching this Committee's deliberations in 1982 over the reauthorization of Section 5 and the amendment of Section 2, and it is a great-- Chairman Specter. Did you write a comment for the Yale Law Journal on that? Mr. Issacharoff. I did, Your Honor. [Laughter.] Chairman Specter. Don't promote me, Professor. Mr. Issacharoff. It is embarrassing to have one's student note brought up. Chairman Specter. I wrote one myself. That is why I asked. Mr. Issacharoff. Several members of the panel have already spoken of the tremendous responsibilities and the need for caution on the part of this Committee, and I fully agree with those views. I think that the reason for caution is twofold. First, as has been amply explained and demonstrated, the Voting Rights Act has been the most effective civil rights statute that the Congress has ever passed, and it behooves this Committee to act cautiously in preserving its legacy and making sure not to derail what has actually transformed the face of politics in the United States. I think that the second source of caution is that the Supreme Court has sent mixed signals as to what the responsibilities of the Congress are with regard to any civil rights statute pursuing the aims of the 14th and 15th Amendment. Part of the signal is from cases like City of Boerne and the congruence and proportionality standard. Other times, however, is in the Hibbs case, the Court has granted this Congress wide berth to pass a statute that seems appropriate to whatever this Congress believes needs to be done to enforce the Reconstruction Amendments. I think, however, that a major source of constitutional tension arises with the coverage formula for jurisdictions under Section 5 of the Voting Rights Act. The bulk of the coverage of Section 5 today is still triggered by voter turnout figures from 1964, a date that seems remote in the approaching 2007 expiration, and risks appearing constitutionally antiquated by the proposed next expiration date of 2032. By my calculation, in 2032 the youngest eligible voter from 1964 will be 86 years old. I have prepared written comments and submitted a copy of the Law Review article on some of the issues involved in reauthorization. I thought I would direct my comments briefly to five issues that I think this body might consider in reauthorizing Section 5 in a way that gives it greater constitutional protection and may also give it greater effectiveness. First, I would recommend that the unit of coverage be moved from the States to political subdivisions of the States. I think that virtually every objection from the Department of Justice over the last 5 years, or maybe even more, on matters not having to do with redistricting has been directly to local jurisdictions and not to the States. Second, I think that is important, as Professor Hasen said a minute ago, to liberalize the bailout provisions. I think that moving the scope of coverage from the States to the political subdivisions would have that effect. I think that it also would help the Act if bailout provisions were more objective based upon lack of objections by the Justice Department or lack of any affirmative lawsuits under Section 2 or other claims of minority vote harassment. Third, I think that if we were to start from scratch today, we might consider a different kind of administrative mechanism other than the preclearance, and one way of thinking about this is that preclearance is extremely onerous and applies an ex ante and ahead-of-time review much like the FDA to any proposed change. One could also imagine a Securities and Exchange Commission type reporting system that covered jurisdictions who have not actively violated the Act in the last 5 years, or some defined period, would be required to post on a website any proposed change and the reasons for it and be subject to either affirmative litigation under Section 2 or simply a false statement litigation. Fourth, I would expand the jurisdictional reach of Section 5 by allowing this disclosure regime to be applied to any jurisdiction that has been found guilty of a Section 2 violation or that has engaged in affirmative actions against minority voters. And, finally, I think that there is reason for concern with the language on the overruling of Georgia v. Ashcroft, and I think that the reason for the concern is that the current statute faces a climate very different from that in 1965 in that you have real bipartisan competition in most of the covered jurisdictions today, which means that certain features of conduct, State conduct, will not go by unattended, will not simply pass muster without anybody realizing. And I would recommend removing statewide redistricting from Section 5 overview altogether. That has been an area of some controversy with the Department of Justice, and it has been an area where there is plenty of litigation in every redistricting anyway, and I don't think Section 5 worked particularly effectively there. Thank you. [The prepared statement of Mr. Issacharoff appears as a submission for the record.] Chairman Specter. Thank you very much, Professor Issacharoff. Focusing on the standards from Boerne III, there must be a showing that it is ``recent in time and persists to the present day.'' Professor Davidson, what is the best evidence that discrimination persists to the present time? I am going to ask every one of you that question because the critical aspect of our record is to show just that. Professor Davidson? Mr. Davidson. One example of it is certainly the large number of Section 5 objections since 1982, and it is true-- Chairman Specter. Did they persist right up to the present time? Mr. Davidson. There have been very few in recent years. There are a number of possible explanations for that. I think some of them have been mentioned this-- Chairman Specter. Well, I am not looking for explanations as to why not. I am looking for evidence as to what is. What is the best evidence of discrimination right up to the present time? Mr. Davidson. I had the privilege of attending several of the--in fact, most of the hearings that the National Commission on the Voting Rights Act held this past year, regional hearings around the country. And I was struck at every one of them by the testimony of people talking about racially polarized voting in their areas, talking about difficulties that some members of minority communities had faced at the polls. Chairman Specter. So you think it continues right to the present time. Mr. Davidson. Yes, sir, I do. Chairman Specter. I only have a few minutes, so I want to move to Mr. Shaw with the same question. Best evidence that it exists now, Mr. Shaw? Mr. Shaw. I think the record as it stands now is replete with examples of ongoing discrimination. Let me point to one, and also, I want to use it as an opportunity to address one of the suggestions that Professor Issacharoff has made. In Louisiana, in the last decennial redistricting, or after the last decennial redistricting, Louisiana, the State of Louisiana, sought preclearance of its plan for the State House of Representatives and filed the Declaratory Judgment Act in the D.C. District Court rather than seeking preclearance. And among the things that it was trying to do, it wanted to have a redistricting plan that eliminated one black opportunity district in Orleans Parish. The State argued that there ought to be proportionate representation for white voters in Orleans Parish, even though it was not arguing that black voters ought to have proportionate representation statewide. There was no replacement district that was created. Its novel theory was based in part upon population loss in Orleans Parish over the prior decade. That plan ultimately did not work. It was not successful. But it was a statewide attempt that would have been discriminatory and it would have harmed the voting rights of African-Americans. And I also point to it as an example of how we still have these problems on the statewide level. I agree also with Professor Davidson about the importance of racially polarized voting, which people underrecognize in terms of its significance and how it interacts with redistricting schemes and ways that perpetuate discrimination. Chairman Specter. Did you want to make a comment on what Professor Issacharoff said? Mr. Davidson. Pardon me? Chairman Specter. Did you want to make a comment on something that Professor-- Mr. Davidson. Yes. Well, I tried to do it just now. The point I am making, is that Professor Issacharoff's view is an interesting idea, but I strongly disagree with the notion that State level redistricting should drop out of Voting Rights Act protection. The Louisiana redestricting is an example of what one State was doing that was a clear violation of the Voting Rights Act. Chairman Specter. My time is limited, so what I am going to ask Professor Hasen, Mr. McDonald, and Professor Issacharoff to do is to submit in writing the best evidence that you know that the discriminatory practices exist right up to the present time. I want to have as strong a record as we can on that point. Then I would also ask you to submit one other point in writing. We are a little constrained on time today because we have the Brett Kavanaugh hearing this afternoon. We have an extraordinarily busy Judiciary Committee schedule, and we are also preparing for the immigration work next week. But what I would like you to do is address the question of the Supreme Court standard on Boerne of congruence and proportionality as to whether there is anything that the Congress can do legislatively. I am very much concerned about the Supreme Court striking down our acts, as they did in Morrison, because of our ``method of reasoning.'' And Justice Scalia has been very critical of the proportionality and congruence test, saying that it is the Court's effort to make Congress do our homework, treating us really like schoolchildren. And it is such an ephemeral and undefinable test which leads to policy-driven decisions. I would like you scholars to give the Committee suggestions, if you have any, as to how we deal with that or if we can deal with it in a legislative context. Senator Feingold? Senator Feingold. Yes, thank you, Mr. Chairman. Mr. McDonald, we have heard testimony from Professor Hasen that there is an ``evidentiary problem'' in terms of reauthorizing certain expiring provisions, and that it will be difficult to produce evidence of intentional discrimination by the States that can withstand a Supreme Court challenge. Now, from what I have heard, the testimony before the House Judiciary Committee as well as reports by groups like the ACLU provide compelling evidence to the contrary. Given your extensive work on current voting rights litigation, could you please share your views on this assertion? Mr. McDonald. Well, one of the things that we tried to do was to make the very best case that we could for the need to extend Section 5, and we attempted to do that not by making, you know, statements on our behalf but by having the Department of Justice's findings be presented to the Committee, by having the Court's findings be presented to the Committee. And one of the critical things, I think, is that people need to talk to minorities in these communities. I mean, go to Randolph County, Georgia, and hear Bobby Jenkins, who is the plaintiff in this recent lawsuit that we filed, and he will tell you about the reality of racial division and polarization. Talk to Beulah Dollar, who is a black woman elected from a majority black district in Telfair County, Georgia. I had a long conversation with her the day that I left Atlanta on Monday about a new voting practice being implemented in that jurisdiction, and I wrote a letter pointing out to the judge of probate that they were implementing what probably was a change in voting that needed to be precleared under Section 5. But in our report, we talked about the approximately 293 cases that we have been involved in since 1982 and have let people who are plaintiffs in those cases speak for themselves, report the findings of the courts, and the stipulations that parties have made. I think it is a very strong record for the continued need for Section 5. Senator Feingold. Mr. Shaw, Professor Issacharoff testified that legislation that is hostile to minority interests will face ``political objections'' as well as litigation under either Section 2 or the Constitution. This seems to be shifting the burden back to individuals to fight for their rights as opposed to keeping the burden on those charged with crafting the law for jurisdictions with a history of discrimination. Many advocates of the Voting Rights Act have made the case regarding the importance of deterrent effects of the expiring provisions of the Act, in particular, Section 5 and Section 203. Can you explain this argument to us? Mr. Shaw. Senator, the testimony that we have heard about concerns with respect to Section 5 and a number of Section 5 objections recently does not capture the entire field that is in play. So, for example, the Department of Justice entertains requests for information from jurisdictions that sometimes obviate the necessity of a Section 5 adverse finding. And that is still the Act working in a powerful way. The fact is, from what we understand, that also some jurisdictions do not engage in actions they otherwise might take that would have a discriminatory, retrogressive, or dilutive effect because of the existence of Section 5 and the preclearance requirements. And, of course, while my testimony did not focus on Section 203, we also believe that Section 203 ought to be extended because it has helped to extend democracy in a meaningful way. But the main point here that I am trying to make is that both with respect to the effect of the existence of Section 5 on jurisdictions that otherwise would engage in discriminatory activities and with respect to the request for information, the Act works powerfully in ways that may appear under the radar screen that may not appear easily in statistics. Senator Feingold. Thank you, Mr. Shaw. Back to Mr. McDonald. You have made the point that objections by the Department of Justice are not necessarily the best measure of whether there is a continued need for expiring provisions, such as Section 5. Is there any way to measure the deterrent effect of these provisions? And are there other ways of gauging whether they are still needed? Mr. McDonald. Well, some jurisdictions openly say that they are going to make a voting change, but in doing so they must comply with Section 5. I know the State of Georgia just last year made some changes to its redistricting plan, and they adopted a resolution that they would comply with Section 5. And the jurisdictions just do not want to have that struggle. Nobody has really mentioned another critical role that Section 5 plays, and that is, the courts routinely apply it. Redistricting is such a politically charged issue that so many States are simply unable to do it. South Carolina has not redistricted itself constitutionally in three decades. Georgia was unable to do it this time around. So the courts ended up doing it, and all of those courts in South Carolina and in Georgia expressly said that in adopting plans they would comply with the non-retrogression standard of Section 5 and the racial fairness standard of Section 2. So Section 5 plays a very important role that does not necessarily have only to do with preclearance decisions by the Attorney General. Senator Feingold. Thank you, Mr. Chairman. Chairman Specter. Thank you very much, Senator Feingold. Senator Sessions has graciously agreed to chair the balance of this hearing, so I turn the gavel over to him. Thank you very much, gentlemen, for coming in. Your testimony is very, very important. I regret to leaving a little early, but we have the Kavanaugh hearing on tap for 2 o'clock this afternoon. Thank you very much, Senator Sessions. Senator Sessions. [Presiding.] Well, Mr. Chairman, we know you are not afraid of work, so you are doing something, I am sure. [Laughter.] Senator Sessions. No one works harder at keeping this Committee going and dealing with the issues we have to deal with. Chairman Specter. Thank you. Senator Sessions. You know, as I indicated in my remarks, there was very, very real discrimination, particularly in the South, and perhaps other areas of the country, but certainly in the South, for a number of years, and over these 40 years a lot has changed. It really has. I would like to ask, Mr. Hasen, if you would explain the purpose or the theory, as you understand it, for the fact that Section 5 was not permanent at the time it passed and how we should think about that today in your view. Mr. Hasen. Thank you, Senator. Section 5 was put in place by Congress after it became clear that a number of jurisdictions with a history of discrimination in voting on the basis of race were playing a kind of cat-and-mouse game where the Federal Government would come in, challenge a particular voting rule. That voting rule would then be changed to a different voting rule, which would also be discriminatory. And the purpose of the preclearance provision was to put the burden on those jurisdictions that showed a history of discrimination to justify any changes in their laws to show that they did not have a discriminatory purpose or effect. The reason that the provisions were set up as temporary is because of the unprecedented nature of the kind of remedy that preclearance is. Never before or since has a State or unit of a State had the requirement to have to get permission to change its laws from the Federal Government. Some have analogized it to a kind of Federal receivership. So it was what the Supreme Court in the Katzenbach case called ``strong medicine.'' And so given that it was strong medicine, Congress decided, wisely, I believe, that it should be a temporary measure and that by having these periodic sunsets and the ability for these hearings, it gives a chance for Congress to evaluate whether the strong medicine is still necessary. And so I think that as you go forward and think about extension, it would be worthwhile to look at the evidence and determine how far should extension go, both geographically and temporally. Should the same provisions that were in place based on data in 1964 be in place in the future for the next 25 years, up until 2031? And should the same areas be covered? So I think it is Congress's obligation now to decide whether that strong medicine should continue in the same form as it has or whether changes are necessary given changes that have occurred on the ground in these covered jurisdictions and in the rest of the United States. Senator Sessions. Thank you for saying that. I think it is important. For example, we do have--tend to have racially polarized voting, I believe as Mr. McDonald said. But my home city of Mobile, a majority-white city, just elected an African- American mayor last month. And he mounted very aggressive campaign, and he had biracial support and was funded aggressively and able to compete on TV and that kind of thing and won the race with a rather significant vote. So I think there is progress occurring out there, and whether things are perfect or not--we know that is not so. We know we are not perfect, and we still have problems. With regard to some of the matters that I hear complaints about from district attorneys and county attorneys, maybe, Mr. Hasen, you would comment. For example, if you move a voting place from a school on one side of the street to the courthouse on the other side of the street, the county or the governmental entity must petition the Department of Justice to approve that and demonstrate that it did not have an intent to discriminate. And at some point, you know, people begin to get a little irritated about that. I mean, they had no problems. They may have African-American officials. Maybe every person in the county--all office holders could be African-Americans, as some are. Are there things like that that you think we ought to consider in terms of making the Act fit the challenges of today rather than problems perhaps in the past? Mr. Hasen. Well, you are right that one of the things about the preclearance provision is that it applies to every voting change, no matter how minor or major, so everything from moving a polling place across the street to a statewide redistricting. And so there are a number of creative ways that you could think about making changes. One thing that I think would go a long way toward helping the constitutional case and also take off some of the burden in a lot of these jurisdictions is to ease the bailout requirements. For example, if the Department of Justice was required to proactively go through, pick out those jurisdictions that meet the bailout criteria, and say, you know what, you have no history of discrimination, you have taken steps to increase minority voter turnout and participation, we think that you should apply for bailout. If the burden was put on the Department of Justice rather than on the States, the States just--they are used to--the covered States are used to preclearance. They know how to do that. Bailout could be made a lot easier, and this would actually also help the constitutional case showing that the law is going to then be focused on places that continue to have a history of discrimination. So you can really use the bailout to winnow out those places that have made significant progress on the basis of race, and so that those places that are doing well will not have to go through the kind of preclearance for these minor types of changes. Senator Sessions. I could not agree more. I think that really makes sense. And just briefly, Professor Davidson, you have studied the history of this. I cited the numbers that in Alabama, according to the Census Bureau, in 2004 a larger percentage of African-Americans voted than whites. I guess we would have to conclude that is a fairly significant historical event. Would you not agree? Mr. Davidson. Yes, sir. I think there is no question but that African-Americans have made a great deal of progress over the last 40 years, and one of the things that several people at our hearings said was essentially to acknowledge that fact. I don't think there are very many people who would deny that progress has been made. I think sometimes it is important to take a historical look at our race problems in the United States, and if you go back to the founding of our Republic, which was--what?--in 1790 or somewhere around there, up to the present, the current period from 1965 forward has been the longest period in which African- Americans have enjoyed relatively free access to the polls and the right to vote--some, what, 40 years out of about 220 years in American history. And I think that fact is in the minds of a lot of people. Is 40 years really long enough given the history of vote discrimination and other kinds of discrimination in this country? Senator Sessions. And I would say this: There are a lot of African-American citizens alive in our State today that felt that discrimination. It is not an academic matter to them. And they are sensitive about it to this very day, and I think we should recognize that. And that is why I think most of us are prepared to accept and support a reauthorization, as long as-- but I think in the course of it, if we can make it better, we should do that. Senator Cornyn, I would recognize you, the former Attorney General of Texas, who has had to wrestle with some of these issues, I am sure. We did in Alabama. Senator Cornyn. Thank you. Thank you, Mr. Chairman. And, again, thanks to the panel for being here. I am struck by some of the--well, first of all, let me just say, I cannot think of any greater self-inflicted wound that the country could have inflicted upon itself than what this country did at its very founding to African-Americans. And we have, as Professor Davidson notes, had a checkered history in terms of improving equal justice and trying to achieve equal justice under the law to all citizens regardless of race or ethnicity or heritage. And I agree, we all want to remain vigilant in that effort. The process, I guess, by which we are getting started, though, concerns me a little bit. There is a bill that has actually been filed that makes findings, and now we are only beginning to gather the evidence. I guess from my previous experience on the bench, I am accustomed to getting the facts before we make findings and then reach conclusions. But be that as it may, I want to make sure that we are not indulging in some stereotypes but, rather, looking at what the facts are as they exist. I was struck, Professor Hasen, by the chart that you held up demonstrating that between 1998 and 2002, that when it came to preclearance requests by various political subdivisions, only 0.05 percent received objections by the Department of Justice. Did I interpret that correctly? Mr. Hasen. Yes, that is right. Senator Cornyn. And if we look at the slope of that line there, is it fair to conclude that that represents improvement in terms of the compliance of political subdivisions with the Voting Rights Act? Or would you-- Mr. Hasen. Oh, it absolutely shows compliance. What it shows is that Section 5 has served as a deterrent to many actions that otherwise could have been discriminatory. Senator Cornyn. OK. And you mentioned in your opening statement, Professor Hasen--and then I want to turn to Professor Issacharoff because he alluded to this as well, there are triggers in the bill that go back to 1964 and 1968 and 1972, and you would certainly agree that the circumstances were different, and let's just say worse, when it came to protecting the franchise of minority voters back in those years than exist today. Would you agree with that? Mr. Hasen. I think everyone on the panel would agree with that, yes. Senator Cornyn. And so I guess, Professor Issacharoff, you mentioned a number of, I think, very interesting ideas that we ought to consider seriously with regard to how the preclearance requirements should be addressed. But I guess for the members of the Committee and those who are not as versed as the panel is in the differences between Section 5 and Section 2, is there anything about Section 5 that offers a different standard of protection to minority voters than is otherwise provided in the Voting Rights Act in general? Or is it simply a matter of getting two bites at the apple, so to speak, one in the preclearance process and then one through litigation? Mr. Issacharoff. Well, there are several differences, Senator. First, of course, Section 2 is nationwide in its coverage, and Section 5 applies only to a select number of jurisdictions. I think that the Supreme Court in the Beer v. United States case set up very different standards between the two provisions or between the Constitution and Section 5 of the Voting Rights Act. So that Section 5, as presently construed, applies primarily to retrogression, to steps backward, and does not reach under the Bossier Parish II decision, does not necessarily reach intentionally discriminatory conduct, and certainly does not reach everything that would be violative of Section 2 if it was simply a carrying forward of the prior regime, of whatever was in place beforehand. I think more significantly what Section 5 does is it imposes a freeze upon State conduct. It operates under the assumption that State conduct is likely to be discriminatory unless proven otherwise and prohibits the States or their subdivisions from acting. And this was absolutely critical to the whole structure of the Voting Rights Act initially because Section 5 piggybacked on Section 4, which was a suspension of basically as many of the known obstacles to voting as could be fashioned in the statute, things like the literacy test, and then Section 5 was intended to freeze in place what the voting system looked like absent those discriminatory obstacles. Section 5 has evolved. I think one of the interesting features is that we are today more concerned with vote dilution than vote exclusion as such. If you look at the Department of Justice statistics in the 6 years beginning in 1997, there were something on the order of, I think, 46 or 42 objections lodged by DOJ. Only six of them had to do with voter exclusion, and the remainder had to do with vote dilution. So the Act keeps in place that freeze. We have tended to think of vote dilution being more a Section 2 matter, particularly after the 1982 amendments, and Section 5 now has to be a little bit retrofitted to deal with the new political realities. Senator Cornyn. Well, you touched on an issue that I think concerns some people, and that is, the presumption that the States that are covered by Section 5--I guess it is--is it roughly nine States plus some other counties and political subdivisions around the country. Mr. Issacharoff. Basically yes, Senator. Senator Cornyn. That there is some presumption that unless Congress imposes a preclearance requirement on those jurisdictions, somehow they will engage in intentional back- sliding when it comes to the voting rights of minority voters. And I could tell you that, you know, I was not alive--well, I guess I was alive, but I was very young back in 1964. But I think as we have all acknowledged, we have had a tremendous change in the culture, and in terms of attitudes, I cannot imagine any set of circumstances under which there would be some back-sliding or reversion if Section 5 were not to require preclearance. But, rather, I do believe that given the amount of litigation that exists today on the Voting Rights Act in literally every step of the proceeding, we ought to be concerned with providing equal and uniform rules that can be applied nationwide. I see my time has run out. I will end here. Thank you, Mr. Chairman. Senator Sessions. Our Ranking Member, Senator Leahy? Senator Leahy. Thank you, Mr. Chairman. And I am sorry to be in and out on this hearing, because I think it is an extremely important one, and I appreciate all of you being here. Professor Davidson, you know, when I look at ``Quiet Revolution in the South''--and most of the people I have talked with, and certainly my staff have talked with, say that is as important a book as we are going to find on the subject. Mr. Davidson. Thank you. Senator Leahy. I think if we read that, we can all agree there have been improvements in minority access to voting since the original Voting Rights Act was passed in 1965. Some would say we no longer need it as a result of that. I was 25 when it passed, and I had only been able to vote for 4 years, and it was not an issue in my State of Vermont. But notwithstanding the progress, what risk do we face if we let the expiring provisions lapse? I mean, are we so solid in the gains that there is no risk of back-sliding? Mr. Davidson. If I could give you an anecdote from my home State of Texas--and I was amazed as I read in the newspapers as this unfolded. But in Waller County, Texas, which is the home of the historically black university, Prairie View, the town surrounding that university is still majority black. In the run-up to the 2004 elections, a couple of black Prairie View students ran for the county commissioner's court, the Democratic primary nomination. And the white district attorney, a former State district judge, announced that any Prairie View students--that Prairie View students voting who did not have parents living in that county, if they voted in that election they would be prosecuted. Prairie View figured very importantly in Section 5 litigation in the 1970's when the Supreme Court held that students living in Prairie View as college students could vote in that county, even though their parents lived in other counties. But in spite of that fact, why, the students were threatened with prosecution, and the NAACP chapter of Prairie View A&M filed a Section 5 enforcement action, and the district attorney backed down. Senator Leahy. I take it by that you feel that we ought to keep Section 5. Mr. Davidson. Yes, I do. That is just one anecdote, I realize, but-- Senator Leahy. I know there are many others, and I was thinking that--I think I know what Mr. Shaw's response would be on this, but we have an extensive record--11 hearings in the House of Representatives, 50 practitioners testified, elected officials advocates, academics, State-by-State reports detailing discrimination in Section 5, and 203 covered jurisdictions since 1982, the Voting Rights Project's 800-page report, the National Commission reports and so on. We had 30 other witnesses here. Based on all this record, do you believe the Congress has the power under the 14th and 15th Amendments to reauthorize the expiring provisions of the Voting Rights Act? Mr. Shaw. Senator, I believe that Congress does have that power. As we have talked about here, we are all concerned about the Boerne line of cases with respect to the issues of federalism that it raises. But there are also issues of separation of power, and I think that Congress certainly has the power to enact this legislation based on this record. Senator Leahy. And would you also agree with Professor Davidson that this is not the time to let it expire? Mr. Shaw. That is right. We have made tremendous progress, but everyone here agrees that there is still work to be done. Senator Leahy. I realize my time is almost up, but I am going to actually submit some questions to each of you. But, Mr. McDonald, in the Voting Rights Project report, you detailed a couple recent examples, modern examples, one in Martin, South Dakota, in which the Eighth Circuit found last week--and I am not going to get into ancient history, but last week found a history of ongoing intentional discrimination against Native Americans. You cite another very recent example in Randolph County, Georgia, intentional discrimination against black voters in that county. It is a county which has a history of going from one tactic to another, dating from before the Voting Rights Act to the present. From a constitutional point of view, are these examples that Congress can rely on to support the extension of Section 5? Mr. McDonald. I certainly think so, Senator. And as people were responding to your question, I just recall that the State of Georgia filed a brief in the Supreme Court in Georgia v. Ashcroft, and that would have been--I hope I am getting my dates correct, but several years ago, 2003, in which they made quite extraordinary arguments indicating what would happen if we did not have Section 5. They argued, for example, that we should abolish the retrogression standard. They argued in the Supreme Court that racial minorities should never be allowed to participate in the Section 5 preclearance process. This is quite an extraordinary argument given the fact that racial minorities were the very group for whose protection Section 5 was passed. And then they argued that you could abolish all the majority-black districts consistent with Section 5. But you look at a State like Georgia, I mean, there have been some people who have won an election, minorities, in jurisdictions that were not majority black, but every member of the State Senate is elected from a majority-black district. Probably 95 percent of those in the House of Representatives were elected from majority-black districts. If you let the State do what it said it could do in its brief in Georgia v. Ashcroft, it would have a devastating impact on the ability of minority voters to elect candidates of their choice. That is the reality. Senator Leahy. But you are not eager to let Section 5 lapse? Mr. McDonald. I do not think that the Georgia fox should be put in charge of the voting rights henhouse, Senator. Senator Leahy. Thank you. My other questions, I see, you know, I have not had a chance to ask Professor Hasen or Professor Issacharoff, who has helped me on many, many other occasions with his erudition, and I will have to submit those for the record. But I thank the Chairman for letting me slip in here. Senator Sessions. Thank you. Senator Leahy. Senator Cornyn, I went a little bit over time, and I apologize for that. Senator Sessions. That is all right. Senator Leahy. It is an important subject. Senator Sessions. It is, and, Mr. McDonald, you know, this Act is a complex Act, and it raises quite a number of issues with regard to Georgia. I think it is important to note that the individual who filed the brief was Mr. Baker, was it not, the Attorney General? Mr. McDonald. He is African-American. Senator Sessions. African-American, Democratic, statewide elected Attorney General, and he had some concerns of a fairly technical nature, and I am not sure it is fair to characterize it quite the way you did. I am sure he would take a different spin on it if he were here today. Mr. McDonald. Yes, Senator. I would just say that people who are--he is an elected official, a politician, and they are subject to all kinds of pressures. I could simply point out that during the Reconstruction years, there were blacks who voted for racially segregated schools, who voted for poll taxes, and they did so for a lot of complex reasons. And the District of Columbia opinion in Georgia v. Ashcroft addresses that whole issue. But I think that the mere fact that a black is in the decisionmaking process does not and should not shield from independent constitutional review the acts that a State takes. Senator Sessions. Well, I am not sure Mr. Baker would appreciate suggesting that he was less than aggressive to protect the interests of African-Americans in Georgia, which I think you just did. And I think you are suggesting that for political reasons he did not follow the law. I think it is a complex thing. We could spend 30 minutes talking about the D.C. filing of that case and the jurisdiction. But I just wanted to raise that point. Let me ask Mr. Shaw and maybe some of the others here about the Voting Rights Act which identifies those jurisdictions subject to additional oversight by looking at voter turnout in the Presidential elections of 1964, 1968, and 1972. We have heard testimony about why we need to keep those dates in. Would you support adding the Presidential election of 2000 and 2004 in order to pick up jurisdictions that may have begun discriminating since the 1970's? Mr. Shaw. Certainly, Senator, we believe that we should not have a cutoff date with respect to problems of discrimination that inform the Voting Rights Act reauthorization. With respect to those other dates and the trigger that originally was in place, I want to emphasize that that trigger served the purpose of identifying the jurisdictions where the problems originally existed. I believe that the record that we have now in some ways eclipses the old trigger to the extent that what we have done is looked at jurisdictions that have been covered and asked the question of whether there are continuing problems in those jurisdictions. And that is the basis on which the jurisdictions that are covered should continue to be covered. Senator Sessions. Mr. McDonald, would you share your thoughts on that, too? Mr. McDonald. Well, I think I share Ted Shaw's discussion. We do have a bailout, and for some reason, not many jurisdictions have attempted to bail out. And I think that may be for a combination of reasons. They do not think they would meet the standard, that being covered by Section 5 is really not that burdensome. But if there are jurisdictions that have clean records, there is plainly a procedure for them to bail out, which is another factor, I think, that underscores the constitutionality, the congruence and proportionality of Section 5. Senator Sessions. Professor Issacharoff, you suggest that, ``The bailout provisions in Section 4(a) appear unduly onerous and not sufficiently geared to actual legal violations'' and recommend liberalizing it. How would you suggest changing that provision? And I would just note that it does strike me as odd, as Mr. McDonald suggested, that so few have taken advantage of it. It must be some problem here that is delaying that. Would you share your thoughts on it? Mr. Issacharoff. To my knowledge, there are only three counties in Virginia that have availed themselves of the bailout, at least in the last 20 years. I maybe have missed some, but on the Justice Department website, those are the only ones I could identify. It seems to me that the bailout was not intended to be acted upon with any ease, and that was part of the original implementation strategy of Section 4 and Section 5 together. The difficulty-- Senator Sessions. Was the bailout a part of the original Act or the reauthorization? Mr. Issacharoff. It was a reauthorization. But it was integrated into the entire Section 4, Section 5 structure. It seems to me the difficulty with the bailout is that there are provisions which have--at least appear to be difficult for jurisdictions to meet, that the affirmative steps taken are ill-defined and hard to quantify. It is hard to figure out exactly what fits in there. I know that some jurisdictions in recent years have started to try to pursue this, the Virginia cases that I am aware of. It appears to me that if there--and my suggestion is that if there were a lesser administrative type of review available, something between full preclearance coverage and no coverage at all, that one could go to a bailout structure that was quite objective, absence-of-objection letters or absence of violations over a defined period of time, and make that much more of an administrative matter rather than a litigated matter. I think that right now jurisdictions that would try to bail out are, for the most part, looking at a litigated path. And I think jurisdictions are probably gun-shy about that. Senator Sessions. Well, it raises--certainly the counties spend a lot of money on lawyers, I've got to tell you. You know, they have to hire a lawyer to do their preclearance petition, and that may be as simple as moving a balloting place across the street. It could involve the most minute change in the ballot itself. There are a lot of things that they are required bureaucratically to do, and like you note, there are counties in Alabama and throughout the country that have never had--throughout the coverage of Section 5--who have never had a history of discrimination and some have certainly demonstrated since 1965 that they have no history of it. And perhaps that would be a step that we could take that would recognize and affirm areas of the country that are doing things correctly. Would you agree? Mr. Issacharoff. In part, Senator. I think the difficulty is that while these things seem trivial, things like moving the polling place across the street or changing the ballot a little bit, the history of disenfranchisement, particularly at the time of 1965, indicated that each and every one of them had been tried at some time or other in some place or other as a mechanism to frustrate the electoral aspirations of black Americans. Senator Sessions. I am well aware of that. I really am. And I fully understand that. However, the district may be 100 percent African-American virtually or 100 percent white, or the whole area may be such, and there is just no apparent argument that can be made in some of these instances that it had any intent to discriminate. Yet they have to go through this petition process. Mr. Issacharoff. They do. It is an administrative burden. I agree with you on that. And I think that from my perspective the Act would be strengthened and its constitutionality would be strengthened if there were more recognition of what has transpired over the past 40 years, if there were more congruence now, to use the court's language, if there were more congruence between the actual performance of these counties or political subdivisions and their continued coverage. And part of that could be addressed with an eased bailout provision. Senator Sessions. Senator Cornyn? Senator Cornyn. Professor Issacharoff, I am aware of the argument--and I would like to have you comment on it--that when it comes to redistricting, there are sometimes strategic alliances that are struck between African-Americans and Republicans and to the detriment of white Democrats. Are there unintended consequences of the Voting Rights Act on redistricting that we ought to be aware of and address during the course of this reauthorization? Mr. Issacharoff. I think the most significant transformation in the covered jurisdictions since 1965 has been the erosion of the Democratic Party monopoly in these States. Almost all of them were one-party Democratic States in which there was no effective competition. I think that the Voting Rights Act, both Section 5 and Section 2, broke up the lockhold. It made districted elections possible, which paradoxically facilitated the election of Republicans in many of these jurisdictions and facilitated the rebirth of the Republican Party in many parts of the South. The Voting Rights Act applied to statewide redistricting has been a tremendous source of temptation for manipulation in my view by the Justice Department, unfortunately, and I say ``unfortunately''--I refer to my own experiences in Texas, Senator. In the 1990's, I represented the State of Texas in its preclearance fight over its Congressional redistricting. Texas has gained three additional Congressional seats and created out of those three additional majority/minority districts. The Department of Justice objected. It was difficult to figure out what the retrogressive basis for the objection was, but while the objection was in place, there was an effort to redistrict through a court in Texas that would undo the plan that the State had put forward. At the time it was the Democratic Party. One of the sources of objections was that the district should have been more concentrated in their minority population, what the Supreme Court addressed quite caustically in cases like Miller v. Johnson. I think that through the 1990's there was a view that Section 5 required creating districts that were as packed with African-American voters as possible. This had the effect of diminishing in my view, the effectiveness of the black franchise, diminishing in many States the electoral prospects of the Democratic Party, and there was a bit of a misshaped alliance between the interests of Republicans in many of these States and the interests of some minority voters in creating super-concentrated minority districts. Mr. Shaw. Mr. Chairman, may I get a shot at that? Senator Cornyn. Sure, Mr. Shaw. Go ahead. Mr. Shaw. Thank you, Senator. Senator Sessions. It is Senator Cornyn's time. Mr. Shaw. Pardon me? Senator Sessions. It is Senator Cornyn's time. He recognized you. Senator Cornyn. We would be glad to hear from you. Mr. Shaw. Well, thank you. Senator, just quickly on that, on the issue of unintended consequences of the Voting Rights Act, this is a function in part of racially polarized voting, and I think it is important to keep our eye on that continued reality. There are people who do blame African-American voters for the partisan losses of the Democratic Party. My view on this, our view on this is plainly that we in a nonpartisan way want to see the Voting Rights Act enforced. African-Americans ought to have the opportunity to elect representatives of choice like any other community or constituency in this country has, and African-Americans cannot expect it to be the ballast for any party by means of sacrificing their right to elect representatives of their choice. The other thing I want to emphasize is that the progress that we have made in this country, which is tremendous, did not happen serendipitously. It happened only as a consequence of the Voting Rights Act. I think we all recognize that. We have acknowledged it, and I think it is so important not to kill the goose that laid the golden egg. Senator Cornyn. Well, I appreciate your answer, and my purpose for asking the question is I want to make sure we have this complete understanding of reality and intended and unintended consequences alike. Obviously, this has a lot of political overtones as well in terms of electoral outcomes and advantaging or disadvantaging political parties. And I think we ought to just get it all out there and take a look at it and have a complete record and be guided by the facts, whatever they should show. To that extent, let me ask, you know, it is interesting to me that with only about nine States and some political subdivisions in other States covered by Section 5, it is interesting to hear States that are not covered, representatives, Senators, Congressmen, advocating the maintenance of the preclearance requirements of Section 5 in other States, not their own, which makes me wonder if it is a good thing, unequivocally a good thing why it does not apply nationwide. But we understand the political reality of that. It is unlikely those States that are not covered, their representatives are likely to cover them by Section 5. But let me ask, Professor Hasen, what empirical data--not anecdotes but empirical data--can you cite, if any, that indicates the position of minorities in covered jurisdictions to participate fully in the electoral process is substantively different from minorities outside the covered jurisdictions under Section 5? Mr. Hasen. I think that is the $64,000 question, and I think that--I am in the middle of going through the material in the House report. There certainly are examples, troubling examples that continue to occur in covered jurisdictions. I think Mr. McDonald's work on Indian country in South Dakota raises, I would say, the largest set of concerns, as well as Mr. Shaw mentioned a case coming out of Louisiana. There are still cases that I think--within covered jurisdictions that are troubling. One of the unanswered questions is whether the Supreme Court in reviewing the constitutionality of a renewed Section 5 is going to require not only evidence that there are problems in covered jurisdictions, but that those problems are different in magnitude from the problems outside of covered jurisdictions. For example, you look at the Katz report, the report out of the University of Michigan, which looked at all the Section 2 filings, there are significant problems, racially polarized voting and other problems that exist across the Nation and not just in the covered jurisdictions. If I could just add one other point? Senator Cornyn. Certainly. Mr. Hasen. Even if the Congress decides not to make significant changes before authorization to 2703 to deal with the constitutional questions, I think that some attention has to be paid to the language of the renewed Section 5. There is some new language in that provision that in the hands of judges, particularly in the hands of judges that might not look at legislative history, that could also have unintended consequences, to go back to your earlier point, and might not be read in the way that Congress intends. So I would hope that you would go back and look at that language as well. Senator Cornyn. Thank you. Mr. Chairman, obviously my concern is that we be guided by the facts and not by anecdotes, and I am sure--I mean, I am confident that we could probably identify misconduct, violations of the Voting Rights Act in all 50 States, and those ought to be vigorously prosecuted and those violations corrected. And the question is whether there is any rationale for disparate treatment anymore between those States that are covered by Section 5. And my hope is we would be guided by the empirical evidence and not anecdotes, because I am confident-- this is in Waller County that the conduct that Professor Davidson mentioned, which is reprehensible and fortunately was not successful, I am sure those kinds of examples could be found on an anecdotal basis anywhere--in many places, let me put it that way, in the country. Thank you very much, Mr. Chairman. Senator Sessions. Thank you. I would offer for the record Senator Leahy's statement into the record on his behalf, and I would like to followup, Professor Issacharoff and Professor Hasen, on the question that Senator Leahy asked you about, the constitutionality question. Based on your review of the House record, do you believe we currently have enough evidence to meet the Supreme Court's test in City of Boerne? Who wants to go first? Mr. Hasen. I have not reviewed the entire House record. First let me say that I think that the Supreme Court's standard is not sufficiently deferential to Congress and that, just speaking generally, the Court has applied too strict of a standard in terms of the kind of evidence that Congress has to come up with. From what I have reviewed so far of the House record, I am concerned that there will be five or more Justices on the Court who will not be satisfied. If the question is whether I would be satisfied, it is a different question. I think that-- Senator Sessions. Are you one of those who believes in stare decisis like some of my colleagues on the Democratic side to such a degree that Boerne ought not to be re-evaluated? Or should the Court re-evaluate it if it is appropriate? Mr. Hasen. Well, Boerne was a change from the standard in Katzenbach, and I would like to see us go back to that. But we are living in the reality that we have now, which is that the Supreme Court is requiring much more evidence than it ever did, and it is not clear to me that the record as I have looked at it so far--and I have not completed the review--that it is going to satisfy a majority of the Supreme Court. Senator Sessions. What about you, Professor? Mr. Issacharoff. I would tend to agree with what Professor Hasen said. I think that while I have not gone through the entire record, I think the record shows that there are still significant issues with access to the ballot in the United States. One need not only look at the Section 5 record. One can look at the evidence before the Congress when it passed the Help America Vote Act. I think that the record is problematic with regard to a couple of features, and that is, whether the covered jurisdictions continue to be significantly different than the non-covered jurisdictions. If you look at the history of recent Section 2 litigation under the Voting Rights Act, one sees Section 2 moving more and more to areas where you have recent immigrants coming into the country, and those tend to be as likely as not, as best I can tell, places that are not under covered jurisdictions, places like Lawrence, Massachusetts, some of the smaller towns of Pennsylvania. So I think that that is problematic under the Boerne standard. I would also note, as this Committee is well aware, that the composition of the Court has changed, and that the likely median voter, as we talk about that in the Academy on the Court is probably Justice Kennedy at this point, and Justice Kennedy was a dissenter in Hibbs. And so if one looks at the track record of the Court, I think, unfortunately, one can expect much greater scrutiny of Congressional action than before. I also think that Congress is a co-equal body, and I think that the Court is misstepping in demanding a level of factual precision from Congress as if it were reviewing some agency determination or a lower court finding under a clearly erroneous standard or something of that sort. But, nonetheless, that is the world we live in, and I am concerned that the trigger is constitutionally difficult today. I am concerned that the extent of time and the time gap between the trigger and the proposed extension is a source of constitutional concern. And I think that the inability of jurisdictions to show compliance with the regulatory scheme effectively and to be able to bail out is also a source of constitutional concern. Mr. Hasen. May I add one other point? Senator Sessions. Yes, Professor Hasen, go ahead. And then I will followup. Mr. Hasen. I have heard a number of people say let's just pass this bill as it is and we will roll the dice in the Supreme Court, and if the Court strikes it down, we will come back and we will write something that will meet the Supreme Court standard. I think there is a danger to that, and primarily the danger is that it could--it could create some bad law that could call into question something like Section 2. Section 2 has been incredibly important. I would hate to see Section 2, which applies nationwide, I would hate to see that be undermined. And I am worried that not responding to the Boerne line of cases--by Congress not doing that, it could have some unintended consequences in terms of other provisions of the Voting Rights Act. Senator Sessions. Would you explain for the people that might be listening here today who are not really attuned to it, as fairly as you can, maybe both sides, as succinctly as you can, what the issue is here? What is it? What issue is the Supreme Court concerned about? It is not that they do not care about voting rights. It is not that they do not respect Congress, in my view. I think it is a concern that we may be crossing a line here that violates fundamental constitutional protections. Could you articulate what they are, at least? Mr. Hasen. Well, both the 14th and the 15th Amendments contain provisions giving Congress the power to enforce those amendments, so to enforce the Equal Protection Clause, to enforce the right to vote without discrimination on the basis of race. And so these lines of cases, what we have been calling the Boerne line of cases, address how much Congress can tell the States what to do in the area of civil rights. Senator Sessions. But it is more than that, is it not? Doesn't it go to the fundamental question of the role that race plays in legislation? Mr. Hasen. Well, not necessarily. Senator Sessions. Equal rights? Mr. Hasen. The Boerne line of cases, most of them do not deal with-- Senator Sessions. Well, but in the Voting Rights Act. I mean, is the Supreme Court concerned about an excessive focus on race in American politics? Is that the fundamental-- Mr. Hasen. I don't think that--that is the issue in the Shaw line of cases and Miller v. Johnson. I don't think that is the issue which raises the constitutional concern in this case. The issue instead is whether Congress can point to enough evidence of intentional discrimination, in this case on the basis of race in voting, in these jurisdictions that are targeted and whether the remedy, in this case the preclearance remedy, is congruent and proportional to the extent of those violations. Senator Sessions. I see. OK. Mr. Shaw. Senator, may I just-- Senator Sessions. Yes, Mr. Shaw? Mr. Shaw. --add that Congress is actually at the height of its powers, the zenith of its powers in this area, unlike when it deals with disability or gender or some other classification. Here we have the confluence of both a suspect classification, that is, race, and also a fundamental right, the right to vote. And for those reasons, the Congress is going to be given more deference and leeway under the Boerne line of cases, and the Court, I believe, acted consistently with that principle when it decided the Lopez case, which is a post- Boerne case, which rejected an attack on Section 5. Senator Sessions. All right. That was a quick 2 minutes. I have a note here that you were arriving in 2 minutes. We are delighted to have Senator Kennedy here and would recognize him as he gets settled, and I would just like to thank all of you for your thoughtful comments on this important subject. Senator Kennedy? Senator Kennedy. Well, thank you. Again, thanks to all of you for being here. I know that a number of areas have been gone through, but I think the country ought to be reminded once more about why this is needed. Maybe I will start with Professor Davidson, why we think that this is called for or not and in the form and the shape that it is. What is it about--you know, we know the different examples that have been illustrated, but you are one that has followed this closely over the years. And perhaps you would give us your judgment about the need for the legislation as it is. Mr. Davidson. Senator, as a number of panelists have said today, there is a wide range of information and research reports that focus on ongoing vote discrimination problems having to do with race that manifest themselves at the polling place, and in the hearings that the National Commission on the Voting Rights Act held around the country--those were ten hearings that were held in 2005, regional hearings--there was a wide range of testimony by minority spokespersons, by election officials, by people who were charged with getting out the vote or helping implement Section 203 to the effect that there is just a continuing range of voting problems that confront voters in many venues across the country. Senator Kennedy. And you think that the accumulation of those hearings and the records that were made in that underpins the basic concept of the need for the kind of extensive legislation that is being considered now for the Voting Rights Act? Mr. Davidson. Yes, sir, and there was also mention of data that were collected from the Justice Department with regard to various functions that the Justice Department is charged with here. There was the issue of the objections. There was also the point that I made very briefly in my opening remarks about the jurisdictions under Section 5, many of them after being queried by the Justice Department and asking for more information when they had made their submissions. They sent letters to the Justice Department saying that they were withdrawing the submitted changes. And in many of those cases, I think the inference that could be made is that they saw the handwriting on the wall that those would be changed that would be objected to if they did not withdraw them. Senator Kennedy. Mr. McDonald, some have suggested that certain types of voting changes are minor and should not need to be precleared under Section 5, such as changes in the location of polling places. But isn't the real test not the type of voting change but whether it discriminates? For instance, the ACLU report noted that in 1992, a jurisdiction in Georgia tried to move a precinct from a county courthouse to a racially segregated American Legion Hall. Isn't that the sort of change that should be precleared? Mr. McDonald. I think so, Senator. The Supreme Court was very clear when it construed Section 5 that it was not, you know, a short list or a laundry list of changes, but that it was to cover any change in voting. And as you mentioned, the change in polling place, I think that was St. Mary's, which is on the Georgia coast, but I also recall within the last couple of years one of the areas in metropolitan Atlanta relocated a polling place from a place that was in the black community to the police department. Fortunately, the Department of Justice objected to that, which they should have done. So it is not a laundry list. You have to look objectively at each change. Senator Kennedy. Let me ask you, Mr. Shaw--I am sure you have gone into it, and I will look at the record. You have talked a good deal about Georgia v. Ashcroft and the test and how that--did you get through--is there anything further you want to add to that discussion, or do you feel that the discussion earlier I imagine that was held here--I apologize. We are--as Senator Sessions knows, we are dealing with a major health bill over on the floor at the present time, and so I have been necessarily absent, but I apologize to all the witnesses. But is there anything further that you want to add to the discussion? I was not here. I will read the record carefully, but I want to make sure that has been fully ventilated from your point of view. Mr. Shaw. Well, Senator Kennedy, I would only add that the Georgia v. Ashcroft standard of influence, which replaces opportunity to elect, is a standard that does not--it lacks clear definition. We feel like we do not know what it means. We are not advocating that all of Georgia v. Ashcroft should be overturned, so, for example, we believe where it is possible, where the record demonstrates that it is possible to have coalition districts as reliable crossover voting on the part of white voters consistently so that African-Americans are not deprived of the opportunity to elect representatives of choice, then that should be sufficient. But what we are talking about is in the face of persistently polarized voting, we do not believe that influence district are enough. I do not think that anybody else settles simply for influence. They want the opportunity to elect representatives of their choice, and they do not want to be consistently defeated. That is what we are trying to address with respect to the Georgia v. Ashcroft fix. Senator Kennedy. OK. Thank you, Mr. Chairman. Thank you very much. Senator Sessions. Thank you, Senator Kennedy, and I would just say once again that I believe the Nation is committed to full and open and fair voting rights in this country, and I do not think that there will be any move to substantially undermine the spirit of the Voting Rights Act or its provisions. I do think it is quite appropriate for us, as was intended from the beginning, that we take some time to review that Act, see how it is working, see if we can make it better, see if there are other areas of the country that might ought to be covered by some of these provisions, see if there are some areas that are covered now that no longer need to be. I think just having stated previously how seriously African-Americans were denied the right to vote in the South and noting some of the changes that have occurred, I would like that chart to go up one more time that you have there that showed the complaints. As a citizen of Alabama, one of the States that clearly denied African-Americans the right to vote in 1965, I think the objections--the submissions receiving objections being now to--that is not 0.5 percent. That is five- tenths of--five-hundredths of 1 percent that I believe that figure represents were objected to. So we are doing some things that are working. There are active lawyers, civil rights groups that certainly are willing to raise an objection when one deserves to be raised, but 99.995 percent of the preclearance submissions or requests for approval of voting rights changes are not being objected to. So that is good news, and I think that says something for us. If there is nothing further to come before us--Senator Kennedy, did you have-- Senator Kennedy. If I could, staff just raised a point for Mr. McDonald. Would you agree that as a result, the number of Justice Department objections under Title 5 since 1982 likely underestimates the unconstitutional attempts to limit minority voting by covered jurisdictions? Mr. McDonald. Well, I think, Senator, that some of the changes that were precleared should not have been. The recent photo ID requirement in Georgia, for example, I think should not have been precleared. It was precleared. And the Federal district court judge immediately granted a preliminary injunction against enforcement of that provision and said that it was in the nature of a poll tax. You had to buy this photo ID card. You know, people say, What new things will they come up with? Well, they did not come up with anything very new. They came up with something that was in the nature of a poll tax. So the mere fact that there have not been a lot of objections does not mean that there should not have been more. But also, again, as Senator Sessions has noted, it shows the deterrent effect, which we still need. You know, Senator Kennedy, I have become increasingly alarmed reading the newspapers, and I see what happens in other countries, and I am not trying to say the United States is like those places, because it is not. But you see what happens in places where we do not have a rule of law, with fair laws fairly enforced. There is all kinds of corruption and things which I do not need to detail, but the surest way that we can make certain that our country remains one where people participate fairly and equally in the political process is to have fair laws that are effective and that are fully enforced, all of which simply underscores the need to extend the provisions of the Voting Rights Act. Senator Kennedy. Thank you, Mr. Chairman. Senator Sessions. Thank you. It has been an excellent hearing. Thank you very much. We are adjourned. 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