<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
_____
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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.
[Whereupon, at 11:51 a.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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