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