SPEAKERS CONTENTS INSERTS
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24–120 PDF
2006
VOTING RIGHTS ACT: SECTION 5 OF THE ACT—HISTORY, SCOPE, AND PURPOSE
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
OCTOBER 25, 2005
Serial No. 109–79
Volume I
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
VOTING RIGHTS ACT: SECTION 5 OF THE ACT—HISTORY, SCOPE, AND PURPOSE
(Volume I)
24–120 PDF
2006
VOTING RIGHTS ACT: SECTION 5 OF THE ACT—HISTORY, SCOPE, AND PURPOSE
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
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OCTOBER 25, 2005
Serial No. 109–79
Volume I
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
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JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
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ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
TRENT FRANKS, Arizona
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
STEVE KING, Iowa
TOM FEENEY, Florida
JERROLD NADLER, New York
JOHN CONYERS, Jr., Michigan
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
CHRIS VAN HOLLEN, Maryland
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PAUL B. TAYLOR, Chief Counsel
E. STEWART JEFFRIES, Counsel
HILARY FUNK, Counsel
KIMBERLY BETZ, Full Committee Counsel
DAVID LACHMANN, Minority Professional Staff Member
C O N T E N T S
OCTOBER 25, 2005
OPENING STATEMENT
The Honorable John Lewis, a Representative in Congress from the State of Georgia
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable Jerrold Nadler, a Representative in Congress from the State of New York, and Ranking Member, Subcommittee on the Constitution
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Member, Subcommittee on the Constitution
The Honorable Melvin L. Watt, a Representative in Congress from the State of North Carolina, and Member, Subcommittee on the Constitution
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WITNESSES
The Honorable Bradley J. Schlozman, acting Assistant Attorney General, Civil Rights Division, U.S. Department of Justice
Oral Testimony
Prepared Statement
Mr. Edward Blum, Visiting Fellow, American Enterprise Institute
Oral Testimony
Prepared Statement
Ms. Anita Earls, Director of Advocacy, Center for Civil Rights
Oral Testimony
Prepared Statement
Ms. Nina Perales, Regional Counsel, MALDEF
Oral Testimony
Prepared Statement
APPENDIX
Material Submitted for the Hearing Record
Appendix to the Statement of Bradley J. Schlozman: Complete Listing of Objections Pursuant to Sections 3(c) and 5 of the Voting Rights Act of 1965
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Appendix to the Statement of Bradley J. Schlozman: Copies of Objection Letters, by State, in which the Attorney General interposed an objection under Section 5 from 1980 through the present (October 17, 2005), including some letters responding to requests to reconsider an objection and some letters withdrawing objections.
Appendix to the Statement of Bradley J. Schlozman: Administrative Review of Voting Changes
Appendix to the Statement of Bradley J. Schlozman: Section 5 Submissions Received by Calendar Year (1971–2004)
Appendix to the Statement of Bradley J. Schlozman: Redistricting Plans Submitted by Calendar Year
Appendix to the Statement of Bradley J. Schlozman: All Section 4 Bailout Cases filed under the Current Bailout Standard through October 17, 2005, by City/County
Appendix to the Statement of Bradley J. Schlozman: Voting Section Cases in which the United States' participation began since October 1, 1976
Appendix to the Statement of Bradley J. Schlozman: Section 5 Declaratory Judgment Actions—complete listing of all actions filed in the U.S. District Court for the District of Columbia seeking a declaratory judgment that proposed voting change does not violate Section 5
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Appendix to the Statement of Bradley J. Schlozman: Attorney General Certifications
Appendix to the Statement of Bradley J. Schlozman: Semi Annual Report of Cumulative Totals on Voting Rights Examining as of June 30, 2005
Appendix to the Statement of Edward Blum: Whose Votes Count? Affirmative Action and Minority Voting Rights, Abigail Thernstrom: Executive Study and Chapter
Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in Georgia, Executive Summary and Study
Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in Louisiana, Executive Summary and Study
Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in South Carolina, Executive Summary and Study
Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in Texas, Executive Summary and Study
Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in Virginia, Executive Summary and Study
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Appendix to the Statement of Edward Blum: An Assessment of Voting Rights Progress in Florida, Executive Summary and Study
Appendix to the Statement of Edward Blum: An Assessment of Racially Polarized Voting in Milwaukee, Wisconsin
Appendix to the Statement of Anita Earls: Supplement to Testimony
Appendix to the Statement of Anita Earls: ''Race and the Representation of Black Interests in State Legislatures,'' Kerry L. Haynie, Ph.D., Duke University
Appendix to the Statement of Anita Earls: Overview of Current Racial Discrimination in Voting in North Carolina, Testimony Prepared for the National Commission on the Voting Rights Act, Southern Regional Hearing
Materials for the Hearing Record submitted by Chairman Chabot on October 28, 2005:
Prepared Statement of Claude Foster, National Field Director, NAACP National Voter Fund, before the National Commission on the Voting Rights Act
Prepared Statement of James U. Blacksher before the National Commission on the Voting Rights Act, March 11, 2005
Prepared Statement of Laughlin McDonald, Director, ACLU Voting Rights Project, before the National Commission on the Voting Rights Act, March 11, 2005
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Prepared Statement of Theodore Shaw, Director of Counsel, NAACP Legal Defense and Educational Fund, before the National Commission on the Voting Rights Act, June 13, 2005
Prepared Statement of José Garcia, Institute for Puerto Rican Policy and the Latino Voting Rights Network, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of the Honorable David Patterson, New York State Senate Minority Leader, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of Walter Fields, Vice President, Political Development, Community Service Society, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of the Honorable Charles D. Walton, former Rhode Island State Senator, before the National Commission on the Voting Rights Act, June 14, 2005
Prepared Statement of the Honorable Emanuel Clever, a Representative in Congress from the State of Missouri, before the National Commission on the Voting Rights Act, July 22, 2005
Prepared Statement of the Honorable Jesse L. Jackson, Jr., a Representative in Congress from the State of Illinois, submitted to the National Commission on the Voting Rights Act, July 22, 2005
Prepared Statement of Meredith Bell-Platts, Staff Counsel, ACLU Voting Rights Project, before the National Commission on the Voting Rights Act, August 4, 2005
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Prepared Statement of Bryan L. Sells, Staff Attorney, ACLU Voting Rights Project, before the National Commission on the Voting Rights Act, September 9, 2005
Prepared Statement of Joaquin G. Avila, Assistant Professor of Law, Seattle University School of Law, before the National Commission on the Voting Rights Act, September 27, 2005
Prepared Statement of Robert Rubin, Legal Director, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, before the National Commission on the Voting Rights Act, September 27, 2005
South Carolina v. Katzenbach (383 U.S. 301, 86 S.Ct. 803)
Procedures for the Administration of Section 5 of the Voting Rights Act of 1965, as Amended
VOTING RIGHTS ACT: SECTION 5 OF THE ACT—HISTORY, SCOPE, AND PURPOSE
TUESDAY, OCTOBER 25, 2005
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 11:08 a.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.
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Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution of the Judiciary Committee.
Before we begin this morning, I'd like to pause for a moment of silence in the remembrance of Rosa Parks, who was truly a historic figure in the civil rights movement. Her act of defiance in the face of discrimination was truly historic and was one of the prime factors in the success of the civil rights movement in this country.
Ms. Parks worked for the Ranking Member of the full Judiciary Committee, Congressman Conyers, for I believe approximately 20 years; and so I'm sure that this has hit Mr. Conyers particularly hard. She did, fortunately, live a long and fruitful life. I believe she was 92 when she passed. But she will be long remembered, and she was truly an inspiration to many people in this country.
I would ask if we could have a moment of silence in her memory.
Thank you.
I also note one of my heroes who just entered the room. We're fortunate to have with us today the distinguished gentleman from Georgia, Congressman John Lewis. Congressman Lewis has been a leader for many, many years in the civil rights movement in this country, was a close friend of Dr. King and was one of the people who was there from the start, has been a key force in the Voting Rights Act and its successes in this country. We're very glad to have him with us today, and we really appreciate his attendance.
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Mr. Lewis, I'm not sure if you would want to say anything at this point or if you'd like to a wait until later in the hearing.
Mr. LEWIS. Thank you very much, Mr. Chairman and Ranking Member Nadler and other Members of the Committee. If it's possible, I would like to make a statement, a very brief statement this morning.
Mr. CHABOT. Without objection, I would be happy to recognize you at this time.
Mr. LEWIS. I appreciate you and the Members allowing me to be here this morning.
Mr. Chairman, today is a very sad hour for me and a sad day. I first heard of Rosa Parks in 1955 when I was 15 years old growing up in rural Alabama. She inspired me. And 2 years later I had an opportunity to meet her and get to know her and work with her all across the American South. So I think it's fitting that you're holding this hearing today on section 5 of the Voting Rights Act. Thank you for having these important hearings on the Voting Rights Act and this hearing today on section 5.
We must not forget the history and the reason that brought us as a Nation to pass the Voting Rights Act in 1965. Some of the Members of the Committee were too young to remember, so I want to take just a moment to talk about that.
Not so long ago, 40 years ago, in many parts of the American South, in Georgia, Alabama and Mississippi, it was almost impossible for people of color to register to vote. Just 40 years ago, people of color had to pay a poll tax, pass a so-called literacy test in some States in the South. There were Black men and women who were professors in colleges and universities, Black lawyers and Black doctors who were told that they could not read or right well enough to register to vote.
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Forty ago, on March 7, 1965, about 600 Black men and women and a few young children attempted to peacefully march from Selma, Alabama, to Montgomery, to the State capitol, to dramatize to the world that people of color wanted to register to vote; and the world watched as we were met with nightsticks, bullwhips, we were trampled by horses, and tear gas.
Eight days after what became known as Bloody Sunday, President Johnson spoke to a joint session of Congress. He condemned the violence in Selma and called on Congress to enact the Voting Rights Act.
The Voting Rights Act helped expand our democracy and open up our democracy to elect hundreds of thousands and millions of our citizens who had been kept out, let them in. The Voting Rights Act was needed then, and it is needed now. The purpose of section 5 is very unique and very important. It prevents discriminatory plans from being enacted in the first place. It put the burden on the judiciary to show that the plan does not discriminate against minority voters.
Prior to section 5, the burden was on the minority voters to challenge the voting practice; and every section was good at coming up with different procedures that had the same result, discrimination. Anita Earls' testimony talks in some detail about the recent example how this is still happening. The difference is that we have section 5 to prevent these practices from harming minority voters.
Many people, like the court said, that we have come a long ways; and again today I would say that we've come a distance. We've come a long way, and that is true. We're not the same Nation that we were 40 years ago, but it's clear today that we have not come far enough. Section 5 is still needed.
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Today, section 5 prevents discrimination and redistricting and changes that move voting locations out of minority neighborhoods into less accessible areas. These are issues that are different from the fight to register to vote but they are no less fundamental.
Recently, in Georgia, we have seen just how frail our gains are. As you know, Georgia adopted a voter ID law that required Government-issued photo identification to be presented at the polls. It reduced from 17 to 6 the type of IDs that are accepted at the polls. This has effected a poll tax and will have a disparate impact on the Georgia African American citizens.
Although the Department of Justice precleared the plan, a Federal judge suspended the law. Without section 5, certain sections, political jurisdiction will be attempted to return to their discriminatory past.
Even though we made so much progress in these past 40 years, these are still examples of instances where the Voting Rights Act took away their votes. The history of the right to vote in America is a history of conflict, of struggling for the right to vote. For millions, the struggle for the right to vote is not merely history, it is experience. I gave a little blood at that bridge in Selma on March 7th, 1965. The experience of the minority tell us today that the struggle is not over and that the special provision of the vote the Voting Rights Act, including section 5, is still necessary.
Thank you, Mr. Chairman.
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Mr. CHABOT. Thank you very much, Mr. Lewis.
I want to thank everyone for being here this morning. As I mentioned, this is the Subcommittee of the Constitution on the Judiciary Committee, and this is the third in a series of hearings that this Committee is holding examining the impact and the effectiveness of the Voting Rights Act over the last 25 years. I'd like to thank my colleagues again for their assistance in getting our examination of the Voting Rights Act off to a strong start. I look forward to our continued discussion this week and in particular hearing from our panel of witnesses this morning, and we have a truly distinguished panel.
Today, and again this afternoon and later on, we'll be examining section 5, the preclearance requirement the Voting Rights Act imposes on covered States and counties. This morning, we will focus specifically on the history, scope and purpose behind this special provision.
Section 5's preclearance requirements are triggered by the formula set forth in section 4 and are intended to address the discriminatory tactics and practices employed by certain States and counties that had a history of undermining Federal efforts to enforce the constitutional guarantees afforded to all citizens.
Prior to the Voting Rights Act, traditional litigation techniques failed to protect aggrieved individuals. Section 5 shifts the advantage of time and inertia to those who are being discriminated by requiring those covered States and counties to pre-clear all election and voting changes with the Department of Justice or the U.S. District Court for the District of Columbia before giving effect to such changes. In addition, covered jurisdictions have the burden of proving that the proposed change, ''does not have the purpose or effect of denying or abridging a citizen's right to vote on account of color, race or language minority status.'' Only those changes that are proven to be nondiscriminatory can be enforced by the covered jurisdiction.
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Section 5's impact over the last 40 years is reflected not only in the record number of newly registered minority voters—as evidenced by statistics released by the U.S. Census—but is also demonstrated in the number of objections raised by the Department of Justice and by the U.S. District Court for the District of Columbia. These objections have successfully prevented new discriminatory practices from being enforced.
Since 1965, the Department of Justice has received over 120,000 preclearance submissions of all types—including changing polling locations, redistricting and annexing new areas, just to name a few. During this time, the Department of Justice has rejected more than 14,000 proposed changes, finding them to be discriminatory in purpose, effect or both. Additionally, these numbers do not even reflect the thousands of proposed plans that never came to fruition because of section 5. The deterrent effect of section 5 plays a subtle but instrumental role in furthering the Voting Rights Act's intended goal of protecting and insuring that equal access to the political process is afforded to all citizens.
Section 5 imposes an extraordinary burden on States and municipalities and raises federalism concerns. However, as the Supreme Court, in Katzenbach v. South Carolina, noted, ''while States have broad powers to determine the conditions over which the right of suffrage may be exercised, such insulation is not carried over when State power is used as an instrument for circumventing a federally protected right.''
It is on this basis that the Supreme Court has continued to uphold the broad and uncommon exercise of congressional power used in enacting and extending section 5. It is also with this knowledge that Congress has taken a step back during the consideration of each extension to reevaluate the current conditions that justify the continued use of this authority. We continue that duty today by examining the current state of discrimination in voting, the role that section 5 plays in preventing new discriminatory practices from being employed, and the role of section 5 in the future.
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Again, I want to thank our witnesses for being here today; and we look forward very much to your testimony.
At this time, I'd like to yield to the gentleman from New York, Mr. Nadler, for 5 minutes for an opening statement.
Mr. NADLER. Thank you, Mr. Chairman.
Let me also join you in noting and expressing satisfaction at the presence of one of the heroes of the Civil Rights movement, not only our colleague but one of the people that prepared the way for the Voting Rights Act, Congressman Lewis.
Mr. Chairman, I want to join my colleagues in remembering and honoring the life of Rosa Parks. Her life demonstrated the power of individual courage and the strength of people working together to change history. What may appear to later generations to have been a relatively small act, insisting on the right to sit on the bus just like any other citizen, was in its day a monumental act that shook the conscience of a Nation and helped begin the process of cleansing this Nation of the stain of institutionalized racism. The fact that the future will need to have the significance of her stand explained is in itself a tribute to the significant change she helped bring about. That struggle continues today, and it is our responsibility to carry on her good and courageous work.
Securing the right to vote specifically through the Voting Rights Act has been an important step in bringing equal citizenship rights to people long disenfranchised. The power of the vote, a genuine, meaningful vote, is the surest guarantee of liberty and equality. Section 5 is a critical part of insuring that the right to meaningful vote is protected.
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It does little good to establish months, perhaps years after an election is over that the law was violated and that citizens were deprived of the opportunity to exercise their franchise in a meaningful and effective manner. Incumbency can then preclude a subsequent remedy at the polls. Everyone who has ever sought or held public office knows this.
By requiring changes in the law to be precleared, section 5 insures that the election can be kept honest and that rights can be kept protected where that protection is most needed. We demand that of other countries; we can accept no less here at home.
I represent two covered counties, Kings and New York, also known more familiarly perhaps as Brooklyn and Manhattan. Our experience with the section 5 process has, in my view, been an important part of protecting the right to vote. In my experience as a former member of the State legislature and a Member of Congress, that protection was not limited to cases in which the Department of Justice did not approve a change but was reflected in the deliberations of lawmakers knowing that whatever the lawmakers proposed had to be pre-cleared.
There are important gains that do not show up in statistics because everyone knows that certain actions would never be pre-cleared and therefore those actions do not take place and are not even proposed. They just do the right thing the first time.
I hope our witnesses can address these issues as well; and I take it for granted I'm sure our testimony will show what experience has shown, that section 5 continues to be needed and that anyone who says that the necessity is over is hiding his head in the sand.
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Mr. Chairman, I want to join you in welcoming our witnesses today; and I look forward to their testimony.
Thank you, Mr. Chairman. I yield back the balance of my time.
Mr. CHABOT. Thank you very much, Mr. Nadler.
Other Members, if they'd like to make brief opening statements. Mr. Scott is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman.
Just very briefly, thank you for recognizing Rosa Parks. I met Mrs. Parks when I was in the fifth grade. She worked at Hampton University in the same place my grandmother was working, and I got to meet her, and that was certainly a great experience. I thank you for recognizing her at the beginning of the hearing.
Mr. Chairman, as we review section 5, we have to acknowledge that this is an essential part of the Voting Rights Act; and without section 5 the remedies in the Voting Rights Act will be essentially ineffective.
At the last hearing, as the gentleman from New York has mentioned, we heard how people who discriminate under the Voting Rights Act essentially can benefit from their wrongdoing by getting elected and then running—after everything is straightened out, they get to run as incumbents, which is certainly a great advantage that they should not have been entitled to.
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We also heard that if there is a violation—if there is no section 5, if there is a violation, the victims of the discrimination have to raise money and come forward to bring suit; and, until they can do that, the perpetrators of the wrongdoing get to benefit from their wrongdoing.
So section 5 eliminates all of that. It is an essential element of the Voting Rights Act, and I look forward to our witnesses as we review the history and scope and origin purpose of section 5.
Thank you. I yield back.
Mr. CHABOT. Thank you very much, Mr. Scott.
Mr. Watt is recognized for such time as he'd like to consume within 5 minutes.
Mr. WATT. I thought you were going to give me a real long open.
Mr. Chairman, I want to thank you again for convening today's hearing and the series of hearings that we have had to date and thank the Chairman of the full Committee, Chairman Sensenbrenner, for committing to develop an extensive record and those other participants outside of our institution who are helping to develop that record, as we heard testimony from the commission representative at the last hearing.
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Quite often when we are doing these opening statements we do them as a matter of rote and habit, and I have an opening statement which I'm going to ask be submitted, ask unanimous consent be submitted.
Mr. CHABOT. Without objection, so ordered.
Mr. WATT. But there are two things that today I think remind us that this is more than just rote habit that we are engaged in. One of those obviously is the thing that you mentioned at the outset of the hearing today, is the death of our hero, Rosa Parks, who sat down on a bus so that so many of us would stand up and straighten our backs and take advantage of the challenge and the aspirations that our Constitution sets out for all citizens.
Although not necessarily intended to be used by all citizens when the provisions were drafted, I've always thought that the aspirational goals that our Founding Fathers articulated in the Constitution were about as powerful as anything that one could ever set to writing. So I remember well Ms. Parks, and I'm honored to have been a small part of a large group of Members of Congress and others that made it possible for her to receive the Congressional Medal of Honor in 1999 for the years after she had sat down on that bus and made it possible for us to stand.
The second thing that I think reminds us that this is not just rote, not habit, not something that's near protocol is the presence today of our colleague, John Lewis. It's easy for us to sit here 40, 50 years later and talk about, in a theoretical way, the necessity of the Voting Rights Act. But when we are visited by our heroes who, as he said, shed blood for the right to vote, we're reminded once again that this is not just something that, as appears today, has become something that is just routine, but the right to vote is the basic ingredient of democracy and we've seen it throughout the world now become the basic ingredient of democracy in South Africa and other places where the vote has been denied to people.
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So while it would be nice to submit a protocol statement which I do for the record, I just think today has a special significance because of the commitment that was made by Rosa Parks and because of the presence of our hero, John Lewis; and so I didn't want this opportunity to pass without making those personal comments.
I yield back and submit my statement(see footnote 1) for the record.
Mr. CHABOT. Without objection, again, that's ordered; and we appreciate your remarks and your opening statement as the remarks the other Members made as well.
Without objection, all the Members will have 5 legislative days to submit additional materials for the hearing record; and I'd now like to introduce our very distinguished panel that we have before us here this morning.
Our first witness will be the Honorable Bradley J. Schlozman, the Acting Assistant Attorney General for Civil Rights at the U.S. Department of Justice. As the Acting Assistant Attorney General, Mr. Schlozman is responsible for enforcing all Federal Civil Rights statutes, including those that prohibit discrimination on the basis of race, sex, disability and national origin in education, housing, credit, public accommodations, voting, and certain Federally funded and conducted programs.
Prior to assuming his duties as Acting Assistant Attorney General, Mr. Schlozman served as Deputy Assistant Attorney General, directly supervising the criminal, voting, employment and special litigation sections of the Civil Rights Division. Mr. Schlozman is a former law clerk to Judge G. Thomas Van Bebber, Chief U.S. District Judge of the District of Kansas, and to U.S. Circuit Judge Mary Beth Briscoe of the U.S. Court of Appeals for the 10th circuit.
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We welcome you here this morning, Mr. Schlozman.
Our second witness will be Mr. Edward Blum. Mr. Blum is a visiting fellow at the American Enterprise Institute and a co-director with Abigail Thernstrom, Commissioner of the U.S. Commission on Civil Rights of the Project on Fair Representation. Mr. Blum and Doctor Thernstrom are the coauthors of a forthcoming book on the evolution of the Voting Rights Act to be published by the AEI press.
Prior to joining AEI, Mr. Blum served as the Director of Legal Affairs at the American Civil Rights Institute and as President of the Campaign for a Color-Blind America, Legal Defense and Education Foundation, where he facilitated the legal challenge to numerous racially gerrymandered voting districts, including congressional districts in New York, South Carolina, Virginia, Louisiana and Texas, all of which were found to be unconstitutional.
We welcome you here, Mr. Blum.
Our third witness will be Ms. Anita Earls, Director of Advocacy at the University of North Carolina Center for Civil Rights. Ms. Earls is a former Deputy Assistant Attorney General for Civil Rights at the Department of Justice Civil Rights Division where she was responsible for voting rights, educational opportunities and disability rights issues.
In December, 2000, she became the Director of the Voting Rights Project of the Lawyers Committee for Civil Rights Under Law. Prior to her Government and public service work, Ms. Earls practiced civil rights law for 10 years.
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We welcome you here, Ms. Earls.
And our fourth and final witness will be Nina Perales, Regional Counsel for the Mexican American Legal Defense and Educational Fund. In this position, Ms. Perales directs the foundation—or the Fund's litigation service, advocacy and public education efforts in Texas, New Mexico, Colorado and six additional southern and western States. Ms. Perales specializes in voting rights litigation, including redistricting and vote dilution challenges, serving as the lead counsel for Latino plaintiffs in congressional redistricting in Texas in 2001 and in Texas and Arizona in 2003.
We welcome you here this morning, Ms. Perales.
For those of you who may not have testified before this Committee in the past, let me very briefly explain our lighting system here and the rules.
We have what's called the 5-minute rule, so each of you will have 5 minutes to testify. The green light will be on for 4 of those minutes; the yellow light will let you know you have 1 minute to wrap up. When the red light comes on, we appreciate you wrap up as close to that as possible. I won't gavel anybody down unless necessary, but we don't expect that to happen here, so we appreciate your cooperation in that.
It's the practice of this Committee to swear in all witnesses before, so if you would please stand and raise your right hand.
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[Witnesses sworn.]
Mr. CHABOT. All witnesses have indicated in the affirmative.
You may all be seated. We appreciate again your willingness to be here this morning.
Mr. CHABOT. We'll now hear from our first witness, Mr. Schlozman. You're recognized for 5 minutes. If you could pull the mike kind of close, that way everyone in the room will be able to hear.
TESTIMONY OF THE HONORABLE BRADLEY J. SCHLOZMAN, ACTING ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE
Mr. SCHLOZMAN. Chairman Chabot, Ranking Member Nadler, distinguished Members of the Subcommittee, good morning. My name is Brad Schlozman. I'm the Acting Assistant Attorney General for the Civil Rights Division at the Justice Department.
Before beginning my remarks today, let me reiterate the comments of the Members in regards to Rosa Parks, who I think we all agree was a courageous American and whose principled actions in the face of hatred and prejudice are an example to all Americans. On behalf of the entire Civil Rights Division, we both mourn her death and celebrate a truly wonderful life.
I appreciate the opportunity to appear before the Subcommittee today. The President has directed the full power and might of the Justice Department to enforce the Voting Rights Act and to preserve the integrity of the voting process. The Voting Rights Act has been enormously successful, but our work is never complete. For this reason, the Administration looks forward to working with Congress on the reauthorization of this important legislation.
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It's my privilege this morning to provide you with an overview of the Justice Department's enforcement of section 5 of the Voting Rights Act, which is one of the provisions that expires in August of 2007. Now, as the Committee knows, a number of other important provisions, including section 2's prohibition against discrimination and voting and section 11's prohibition again voter intimidation, are permanent in nature, but I will focus my remarks exclusively on section 5.
Section 5 mandates that all covered jurisdictions seek preclearance of any new voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting. The administrative approval, as the Chairman noted, can be sought administratively from the Attorney General or through the U.S. District Court in D.C. In the latter case, the Attorney General will litigate the declaratory action and either support or oppose the court's approval of the voting change at issue. However, under both approaches, the voting change does not become effective unless and until judicial or administrative approval is secured.
Section 5's coverage is extremely broad. The Supreme Court has interpreted in one of the seminal cases in 1969 it's intended to reach any State enactment which altered the election law of a covered State even in a minor way. There is no de minimis exception. So, in other words, while changes as significant as a legislative redistricting obviously come to us for pre-clearance review, so do such minor changes as a half-block movement of a polling place, a 15-minute extension of polling hours and a municipal annexation of completely unpopulated land.
Now the Chairman talked about the triggering requirements for preclearance under the Voting Rights Act, and I won't repeat those, but there are 16 States, 9 in whole and 7 in part, that meet the formula under the Voting Rights Act. Mostly, it's the former Confederacy, although a number of States in part are covered throughout the United States.
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For reasons of expense and timing, the vast majority of changes that are covered by the Voting Rights Act in which jurisdictions have to submit to the Attorney General for administrative review are in fact sent to the Attorney General, rather than through the court system. The voting section of the Civil Rights Division receives roughly 4,000 to 6,000 submissions annually, although each submission may contain numerous voting changes that have to be reviewed. Redistricting plans, incidentally, are only a small part of those submissions.
Our function in section 5 is relatively narrow. It is, in the words of the Supreme Court, merely to insure that no voting-procedure changes are made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Stated differently, we examine whether the purpose or effect of the voting change is to put racial minorities in a position inferior to the one they occupy under the status quo, as compared to non-minorities, vis-à-vis their ability to elect their candidates of choice. We have to do that in a brief, 60-day period of time, something that our voting section attorneys do on an outstanding basis on a yearly basis.
Now employing that standard over the last 40 years, we found retrogression in an extremely small number of cases. Since 1965, out of the 121,000 in total section 5 submissions received by the Justice Department, the Attorney General has interposed an objection to just over 14,000. And in the 10 years—last 10 years there have been only 37 objections. In other words, the overall objection rate since 1965 is just a hair over 1 percent, while the annual objection rate since the mid 1990's has declined even more, now averaging less than .2 percent.
We've seen some different standards change with the Supreme Court's decision in Georgia v. Ashcroft, and I know that will be the subject of an additional hearing so I won't go into any more detail.
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Let me wrap up, since I see my time is drawing to a close, and say that the Voting Rights Act has radically increased the opportunity of minority voters to elect the representatives of their choice. Virtually excluded from public offices in the South in 1965, minority elected officials are now substantially present in State legislatures and local governing bodies throughout the country. It is accurately described as one of the most successful pieces of civil rights legislation ever adopted by Congress. The Department of Justice is very proud of the role it plays in enforcing this statute, and we look forward to working with Congress in these reauthorization is hearings.
Thank you very much.
Mr. CHABOT. Thank you very much, Mr. Schlozman.
[The prepared statement of Mr. Schlozman follows:]
PREPARED STATEMENT OF BRADLEY J. SCHLOZMAN
Chairman Chabot, Ranking Member Nadler, distinguished members of the Subcommittee:
Good morning. I am Brad Schlozman, Acting Assistant Attorney General of the Civil Rights Division at the Department of Justice. Thank you for the opportunity to appear before you today. The President has directed the full power and might of the Justice Department to enforce the Voting Rights Act and to preserve the integrity of our voting process. The Voting Rights Act has been enormously successful, but our work is never complete. For this reason, this Administration looks forward to working with Congress on the reauthorization of this important legislation.
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It is my privilege this morning to provide you with an overview of the Justice Department's enforcement of section 5 of the Voting Rights Act, one of the special provisions of the Act that is slated to expire in 2007. As the Committee knows, many other important provisions of the Act, including section 2's prohibition against discrimination in voting and section 11's prohibition against voter intimidation, are permanent in nature. However, I have been asked to confine my testimony to section 5.
The Attorney General has assigned responsibility for enforcement of the Voting Rights Act to the Civil Rights Division, which in turn has delegated most enforcement functions to the Division's Voting Section.(see footnote 2) Section 5 represents an important part of this work. Although many of you no doubt are well versed in the intricacies of section 5, I will outline this provision briefly as a primer for those who are not and as a refresher course for those of you who already are experts in this area of law.
Section 5 mandates that all covered jurisdictions seek pre-clearance of any new ''voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting.'' This approval can be sought administratively from the Attorney General or through the judicial route by filing a declaratory judgment action in the United States District Court for the District of Columbia. In the latter case, the Attorney General litigates the declaratory action and either supports or opposes the court's approval of the voting change at issue. However, under both approaches, the voting change—whether it be a new law, ordinance, regulation, or procedure—cannot be implemented until the administrative or judicial approval is secured.
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Section 5's coverage is extremely broad. As the Supreme Court noted in Allen v. State Bd. of Elections, 393 U.S. 544, 566 (1969), ''Congress intended to reach any state enactment which altered the election law of a covered State in even a minor way.'' There is no de minimis exception. In other words, while voting changes as significant as a legislative redistricting obviously come to us for pre-clearance review, so too do such minor changes as a half-block movement of a polling place, a fifteen minute extension of polling hours, and a municipal annexation of completely unpopulated land.
In determining which jurisdictions are subject to the section 5 pre-clearance requirements, the Voting Rights Act contains a formula in subsection 4(b) that is predicated on historical voter turnout as well as the presence of certain discriminatory voting tests or devices.(see footnote 3) Specifically, a jurisdiction is covered under section 5 if (i) less than 50% of a jurisdiction's voting age population either was registered to vote or actually voted in November 1964, November 1968, or November 1972; and (ii) the Attorney General determines that the jurisdiction maintained certain ''tests or devices,'' as defined by subsection 4(c) of the Act, in November 1964, November 1968, or November 1972. There are 16 States—9 in whole and 7 others in part—that meet this formula. The entire States of Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and Virginia are covered, although 10 counties and cities in Virginia have ''bailed out''(see footnote 4) of coverage in recent years. Meanwhile, certain counties and townships are covered in the States of California, Florida, Michigan, New Hampshire, New York, North Carolina, and South Dakota.(see footnote 5) Interestingly, a number of southern states—including Arkansas, Tennessee, and West Virginia—are not covered at all by Section 5.
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For reasons of expense and timing, the vast majority of voting changes by covered jurisdictions are submitted to the Attorney General for administrative review. The Voting Section of the Civil Rights Division receives roughly 4,000–6,000 submissions annually, although each submission may contain numerous voting changes that must be reviewed.(see footnote 6) Redistricting plans are only a small portion of those submissions. For example, in Calendar Year 2003, we received a total of 4,628 submissions, 400 of which were redistricting plans. In Calendar Year 2004, we received 5,211 submissions, 242 of which involved redistricting plans. In Calendar Year 2005, we already have received 3,811 submissions (as of October 17th), 88 of which have been redistricting plans. Perhaps not surprisingly, the number of section 5 submissions sent to the Department of Justice tends to reach its apex two years after the national Census, the point at which jurisdictions have the demographic data necessary to redraw their political districts. For example, in 2002 we received 5,910 submissions, of which 1,138 were redistricting plans. Similarly, in 1992, we received 5,307 submissions, 974 of which involved redistricting plans.
Our function in evaluating section 5 submissions is, in the words of the Supreme Court, merely ''to insure that no voting-procedure changes [are] made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.'' Miller v. Johnson, 515 U.S. 900, 926 (1995) (quoting Beer v. United States, 425 U.S. 130, 141 (1976)). Stated differently, we examine whether the purpose or effect of a voting change is to put racial minorities in a position inferior to the one they occupy under the status quo, as compared to non-minorities, vis a vis their ability to elect their candidates of choice. Impressively, the outstanding career attorneys in our Voting Section undertake this often highly complex examination in a brief, sixty-day period of time, as is required under the statute.
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Employing this standard over the last 40 years, we have found retrogression in an extremely small number of cases. Since 1965, out of the 120,868 total section 5 submissions received by the Department of Justice, the Attorney General has interposed an objection to just 1,401. And in the 10 ten years, there have been only 37 objections. In other words, the overall objection rate since 1965 is only a hair over 1%, while the annual objection rate since the mid-1990's has declined even more, now averaging less than 0.2%. This tiny objection rate reflects the overwhelming—indeed, near universal—compliance with the Voting Rights Act by covered jurisdictions.
Recently, the Supreme Court revised the standard applicable in section 5 retrogression inquiries. See Georgia v. Ashcroft, 539 U.S. 461 (2003). The Court in that decision expanded the factors to be considered in the retrogression determination by examining all the relevant circumstances, which include a review of the minority voters' ability to elect candidates of their choice, the feasibility of devising a non-retrogressive alternative plan, and the extent of minority voters' opportunity to participate in and ''influence'' the political process. In implementing that opinion, the attorneys and analysts in the Division's Voting Section continue to conduct wide-ranging investigations into all of the circumstances surrounding voting changes, including soliciting comments and opinions from the affected community, and undertaking complex statistical analyses.
The fruits of our efforts in enforcing the Voting Rights Act have been dramatic. Indeed, at the time the Voting Rights Act was first passed in 1965, only one-third of all African-American citizens of voting age were on the registration rolls in the Act's covered jurisdictions, while two-thirds of eligible whites were registered. Today, African-American voter registration rates not only are approaching parity with that of whites, but actually have exceeded that of whites in some areas, and Hispanic voters are not far behind. Forty years ago, the gap in voter registration rates between African-Americans and whites in Mississippi and Alabama ranged from 63.2 to 49.9 percentage points. For example, only 6.7% of African-Americans in Mississippi were registered, in comparison with 69.9% of whites.(see footnote 7) Yet by the 2004 general election, the Census Bureau reported that a higher percentage of African-Americans were registered to votes than whites (76.2% versus 73.6%). Meanwhile, in Alabama in 2004, African-Americans reported registering at a rate only 1.7 percentage points below that of whites (73.2% versus 74.9%). Moreover, the Census Bureau also recorded an increase in turnout for African-Americans in the South from 44% in 1964 to 53.9% in 2000.(see footnote 8)
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Finally, enforcement of the Voting Rights Act has radically increased the opportunity of minority voters to elect representatives of their choice. Virtually excluded from all public offices in the South in 1965, minority elected officials are now substantially present in State legislatures and local governing bodies throughout the region. For example, the number of African-American elected officials has increased dramatically during the life of the Voting Rights Act, from only 1,469 in 1970 to 9,101 in 2001.(see footnote 9) In fact, many covered States, such as Georgia and Alabama, have more elected African-American officials today than most that are not covered by section 5.
In conclusion, the Voting Rights Act can be characterized accurately as one of the most successful pieces of civil rights legislation ever adopted by the Congress. The Department of Justice is proud of the role it plays in enforcing this statute and we look forward to working with Congress during these reauthorization hearings.
ATTACHMENT
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Mr. CHABOT. We're having a glitch with the lighting system. The yellow light didn't come on, so we'll try to get that fixed.
Mr. Blum, you're recognized for 5 minutes.
TESTIMONY OF EDWARD BLUM, VISITING FELLOW, AMERICAN ENTERPRISE INSTITUTE
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Mr. BLUM. Chairman Chabot, Representative Nadler and distinguished Committee Members, in anticipation of congressional hearings on the reauthorization of section 5, the Project on Fair Representation at the American Enterprise Institute commissioned two social scientists to gather data on the state of minority participation in the election process in the jurisdictions covered by section 5 of the VRA and additionally to compare and contrast those data with jurisdictions not covered by the act.
The authors of this study, Professor Keith Gaddie of the University of Oklahoma, who will be testifying before the Committee this afternoon, and Professor Charles Bullock of the University of Georgia, will present their completed findings by the end of 2005. For today's hearings, Mr. Chairman, I respectfully offer the Committee their study on the State of Georgia.
The Bullock-Gaddie study of Georgia, like the other State studies soon to follow, analyzes a variety of election criteria, including Black and Hispanic voter registration rates, Black and Hispanic election turnout rates, success and failure of Black and Hispanic candidates, White crossover support for minority candidates, and racial polarization levels using three different methodologies.
Although I have the hard data for only Georgia today, our preliminary analysis indicates that the other section 5 States are more or less comparable. Here are some of the highlights of our findings:
Number one, rates of Black voter registration and participation at the polls currently exceed the rates for White voters in the State of Georgia and the Nation as a whole.
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Number two, the Black and White candidates running as Democrats in Georgia draw comparable support from White voters irrespective of their race.
Number three, in the three most recent elections for which comparisons are available, Georgia Black registration is approximately 5 percentage points higher than for non-southern Blacks.
Finally, estimates of racial voting patterns in Georgia congressional races held during the last 15 years or so show African-American candidates consistently polling 30 or more percent of the White vote and 90 or more percent of the Black vote. Georgia has a total of 34 officials who are elected Statewide. Nine of these officials are African-American, and all of these African-Americans have won Statewide election with substantial White support.
What can we conclude from these data, Mr. Chairman? To quote from a recent Law Review article, ''Bull Connor is dead.''
In 1965, Congress was able to easily make a factual finding of rampant racial discrimination in the election arena aimed at Blacks throughout the deep South. By today, however, the data simply do not support a similar finding. Furthermore, applying the same methods of analysis to noncovered States that we used on the covered jurisdictions such as Tennessee, Arkansas and New Mexico, among others, reveals no differences between them.
Mr. Nadler noted last Thursday that the Committee is attempting to build a record for the inevitable legal challenge to section 5. Building a record for reauthorization is different from building a rationale for reauthorization. The data we have analyzed are indisputable. The incidence of statutory and congressional violations of voting rights in the covered jurisdictions are few and far between and no different from the noncovered jurisdictions.
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If the problems that remain are national in scope, then the focus on only particular jurisdictions makes no policy sense and aggravates federalism concerns. If the problems remain regional or remain only in even more widely scattered jurisdictions, then applying the statute's preclearance provisions where they are no longer justified also aggravates federalism concerns. The data from Georgia simply don't justify the stringent and unique infringement on federalism principles that the Court recognized in Katzenbach all the way down to the City of Boerne.
Some on the Committee have argued that a felon, having paid his penalty to society, deserves the right to vote and to be treated no differently from his fellow citizens. Let's assume for the sake of argument this is true. If so, then why shouldn't this principle apply to the covered jurisdictions. The 40-year penalty of section 5, completely justified in 1965, deserves to be lifted today. What more must the State of Georgia do in order to be treated no differently from the other States?
Mr. Chairman, Mr. Nadler, Members of the Committee, I look forward to providing the Committee with our full report later this year. Thank you for my time.
Mr. CHABOT. Thank you.
[The prepared statement of Mr. Blum follows:]
PREPARED STATEMENT OF EDWARD J. BLUM
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Chairman Chabot, Representative Nadler, and distinguished committee members. Thank you for the honor and opportunity to testify before the committee today.
My name is Edward Blum and I am a Visiting Fellow at the American Enterprise Institute. I am also co-director at AEI with Commissioner Abigail Thernstrom of the Project on Fair Representation. In addition, we are co-authors of a forthcoming book on the evolution of the Voting Rights Act. Prior to my AEI affiliation, I have held a number of positions at other think tanks including the Center for Equal Opportunity, the American Civil Rights Institute, and the Campaign for a Color-Blind America, Legal Defense and Education Foundation. While at the Campaign, I directed the legal challenge to over a dozen racially gerrymandered voting districts in states from New York to Texas.
In anticipation of congressional hearings on the reauthorization of section 5 of the Voting Rights Act, the Project on Fair Representation at the American Enterprise Institute commissioned two social scientists to gather data on the state of minority participation in the election process in the jurisdictions covered by section 5 of the VRA, and, additionally, to compare and contrast those data with jurisdictions not covered by the act.
The authors of this study, Prof. Keith Gaddie of the Univ. of Oklahoma—who will be testifying to the committee this afternoon—and Prof. Charles Bullock of the Univ. of Georgia will present their completed findings by the end of 2005. For today's hearing Mr. Chairman, I respectfully offer the Committee their study of the state of Georgia. I ask it be placed in the record.
The Bullock-Gaddie study of Georgia, and the other state studies soon to follow, analyzes a handful of election criteria including but not limited to: black and Hispanic voter registration rates; black and Hispanic election turnout rates; success and failure of black and Hispanic candidates compared to the success and failure of white candidates; white cross-over support for minority candidates; and racial polarization levels using three different methodologies.
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Although I have the hard data for only Georgia today, the preliminary analysis of the data indicates that the other section 5 states are more-or-less comparable. Here are some of the highlights of our findings:
1. Rates of black voter registration and participation at the polls currently exceed the rates for white voters in the state of Georgia and the nation as a whole.
2. Black and white candidates running as Democrats in Georgia draw comparable support from white voters irrespective of the candidate's race.
3. In the three most recent elections for which comparisons are available, Georgia black registration is approximately five percentage points higher than for non-southern blacks.
4. Estimates of racial voting patterns in Georgia congressional races held during the last fifteen years or so show African American candidates consistently polling thirty or more percent of the white vote and ninety or more percent of the black vote. Georgia has a total of 34 officials who are elected statewide. Nine of these officials are African American. All of these African-Americans have won statewide elections with substantial white support.
What can we conclude from these data? To quote from a recent law review article, ''Bull Connor is dead.'' And so is every Jim Crow-era segregationist intent on keeping blacks from the polls.
In 1965, Congress was able to easily make a factual finding of rampant racial discrimination in the election arena aimed at blacks throughout the Deep South. By today however, the data simply do not support a similar finding. Furthermore, applying the same methods of analysis that we used on the covered jurisdictions to non-covered states such as Tennessee, Arkansas, and New Mexico and to subjurisdictions such as Queens County, New York and Volusia County, Florida among others reveals no differences between them.
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Mr. Nadler noted last Thursday (Oct. 20, 2005) that the committee is attempting to build a record for the inevitable legal challenge to section 5. Building a record for reauthorization is different from building a rationale for reauthorization. The data we have analyzed are indisputable: the rates of minority participation and the success of minority candidates indicates that minorities in the covered jurisdictions no longer struggle against patterns of discrimination as they go about exercising their political rights. It is noteworthy that since 1998, the Department of Justice has brought nearly four times as many section 2 lawsuits against non-covered jurisdictions as against covered ones. Although some would note this may be due to section 5's power in the covered states, it also suggests that problems remain unaddressed outside of section 5's net. If the problems that remain are national in scope, then to focus on only particular jurisdictions makes no policy sense and aggravates federalism concerns. If the problems remain regional or remain only in even more widely scattered jurisdictions, then applying the statute's preclearance provisions where they are no longer justified also aggravates federalisms concerns. The data from Georgia simply don't justify the stringent and unique infringement on federalism principles that the Court recognized in beginning with South Carolina v. Katzenbach and continuing to City of Boerne v. Flores, and other cases. Additionally, Congress shouldn't renew section 5 based upon a fear that without it the covered jurisdictions would return to the practice of disenfranchising blacks and Hispanics. That fear is too speculative and cannot be substantiated by a congressional factual inquiry.
Some on the committee and various witnesses have argued that a felon, having paid his penalty to society, deserves the right to vote and be treated no differently from his fellow citizens. Yet, why shouldn't this principle apply to the covered jurisdictions? The forty-year penalty of section 5, completely justified in 1965, deserves to be lifted today. After all, Congress recognized in 1965 that section 5 was a temporary, emergency provision. It was to remain in effect for only five years. What more must a state like Georgia do in order to be treated no differently from other states?
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The election data and federalism principles are not the only reasons for letting section 5 expire. There are other compelling good government reasons as well. During the last fifteen years, as judges, legislative bodies, and federal bureaucrats got in the habit of stretching the meaning of the VRA to reach any and all ends they considered desirable, the groundwork was laid for abuses. What started out as a tool to prevent anyone from being turned away at the ballot box because of skin color has turned into a means of second-guessing perfectly legitimate, nonracial policies.
The pinnacle of section 5 abuses occurred after the 1990 census and the cycle of redistricting that followed. The Department of Justice, aided by the old-line racial advocacy groups and some in the Republican Party, began to distort the VRA to require a ''max-black'' redistricting outcome. In other words, the preclearance provision of section 5 became a sword, rather than a shield, in the hands of government bureaucrats whose single-minded goal was not ending racial discrimination but guaranteeing racial and ethnic proportionality in every legislative body for which they had control. The result was the creation of dozens of racial gerrymanders-Rorschach-test-like bug splats—that systematically harvested blacks and Hispanics out of multiracial communities to form safe minority districts.
In a series of cases beginning with Shaw v. Reno and culminating in Georgia v. Ashcroft, the Supreme Court has marginally attempted to bring some sanity back to the law. In Shaw, the Court in 1993 found that a ''reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who have little in common with another but the color of their skins, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and prefer the same candidates at the polls.''
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Ten years later, the Court found in Georgia v. Ashcroft that the retrogression standard that had been used by DOJ to force the strict maintenance of minority percentages in newly redrawn voting districts was wrong, noting that ''the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters.''
In my opinion, section 5 has degenerated into an unworkable, unfair, and unconstitutional mandate that is bad for our two political parties, bad for race relations, and bad for our body politic. Here are some of the reasons why Congress should consider letting section 5 should expire:
1. The emergency that precipitated the temporary provisions of section 5 has passed. Blacks throughout the covered jurisdictions register to vote and participate at the polls in numbers nearly identical to sometimes exceeding white voters.
2. The worst abuses of the Jim Crow era—such as poll taxes, literacy tests, and grandfather clauses—are permanently banned already. Moreover, any voter and the Department of Justice can challenge any discriminatory election policy or statute using section 2 of the act. It is permanent and applies to every state in the nation.
3. Section 5 has contributed to the ever-growing lack of election competitiveness, resulting in safe-seats-for-life for incumbents of both parties. Section 5 requirements are one of the key reasons a newly-created bipartisan, independent redistricting commission in Arizona was unable to fulfill its mandate to create competitive legislative and congressional districts. This in turn contributes to the creation of ideologically polarized voting districts.
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4. Section 5 has evolved into a gerrymandering tool used by Democrats and Republicans to further their party's election prospects. It is nearly impossible today under section 5 to tease out racial electoral issues from partisan electoral issues, as we have recently witnessed in a handful of redistricting lawsuits from Texas to Boston.
5. Section 5 has had the effect of insulating white Republican officeholders from minority voters and issues specific to minority communities; and, in turn, it insulates minority elected officials from white voters.
6. Section 5 does not address in any way the long list of election issues that have surfaced during the last five years: hanging chads in Florida; long lines of voters in Ohio; too few poling places on college campuses in Wisconsin.
Mr. Chairman, Mr. Nadler, I look forward to providing the committee our full report later this year. Additionally, I wish to include in my written statement Chapter 1 from Abigail Thernstrom's seminal work, Whose Votes Count? Affirmative Action and Minority Voting Rights (Harvard University Press).
Thank you for allowing me to participate in these hearings.
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ATTACHMENT 2
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Mr. CHABOT. Ms. Earls, you're recognized for 5 minutes.
TESTIMONY OF ANITA EARLS, DIRECTOR OF ADVOCACY, CENTER FOR CIVIL RIGHTS
Ms. EARLS. Mr. Chairman and Members of the Subcommittee, thank you for your important work conducting extensive hearings on the Voting Rights Act. I am honored to be invited to testify. I'm also humbled to be before distinguished Members of this Committee who have lived through, in their own careers, much of what I have to tell you.
From my experience representing minority voters in jurisdictions covered by the Voting Rights Act, one overwhelming truth is apparent. The original purpose of section 5 has not yet been fully served. The lingering effects of past intentional racial discrimination continue to disadvantage minority voters as they attempt to be heard at every step of the democratic process.
Some of these hurdles include: the continued prevalence of racially polarized voting; redistricting plans that crack and pack minority voters to dilute their voting strength; numerous efforts at the local levels to dismantle single-member districting plans; the manipulation of town boundaries through annexations that exclude Black voters; and the imposition of new registration and voting practices that make it more difficult for minority voters to register and cast a ballot.
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Extensive documentation of these practices and many others will be made a part of the record during the course of these hearings.
The original purpose of section 5, to prevent the use of voting practices that have a discriminatory purpose or effect, remain salient today. It's been said section 5 is no longer needed because Black voter registration rates have increased and poll taxes and sham literacy tests have been abandoned. But, in fact, other portions of the act were specifically designed to prevent those abuses.
Section 5 has a very different and specific purpose, namely, as the Supreme Court has stated, ''to remedy a century of obstruction by shifting the advantage of time and inertia from the perpetrators of the evil to its victims.'' In short, section 5 is needed to prevent jurisdictions from introducing new procedures and techniques that have the purpose or effect of discriminating against minority voters. Recent experience demonstrates this danger still exists.
When the Voting Rights Act was initially passed, Congress was frustrated by the fact that when litigation successfully ended its discriminatory practice, local authorities circumvented court orders by implementing new procedures with the same discriminatory result.
Today we are seeing a similar process occurring at the local level. In Texas, North Carolina, Alabama and elsewhere, jurisdictions that were sued in the 1980's and 1990's under section 2 of the Voting Rights Act, found to be in violation of the act, and ordered to implement single-member districts are now trying to return to at-large election systems.
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Section 5's nonretrogression principal is an important bar to such changes. For example, in August 2002, the Department objected to the City of Freeport, Texas' plans to return to an at-large method with numbered posts that previously had been declared illegal because it discriminated against Hispanic voters. Without section 5, minority voters would have no option but to go back to court to defend the decrees they obtained just a few years earlier. This is the backsliding that section 5 is designed to prevent. The gains made since the act's reauthorization in 1982 are too fragile to be abandoned at this stage. The threat of their being circumvented or overturned is very real.
I want to turn briefly to the practical realities of how section 5 operates. There are several important points to consider.
First, the career attorneys in the Department who are responsible for working closely with the election administrations in covered jurisdictions develop a high level of knowledge about the jurisdiction's laws, procedures and past experiences. Voting section attorneys understand the realities of trying to administer elections and often provide technical assistance to State and local officials who are trying to figure out the best way to run elections. The section 5 review process is efficient, flexible, makes use of recent electronic media and is designed to be as easy as possible for local jurisdictions, while still giving the Department the opportunity to gather the information they need. It's not surprising that recently the counsel to the North Carolina Board of Elections said that, in his experience, complying with section 5 is not burdensome for State and local officials.
Second, there's an important way in which the section 5 review process is weighted in favor of jurisdictions. If the Department objects, the jurisdiction can appeal. If the Department preclears, voters who oppose the change have no avenue of appeal.
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Third, redistrictings are only a portion of what the Department reviews. It is very important to remember that annexations, polling place changes, absentee balloting procedures, special elections and the adoption of various other election rules all come under section 5's ambit. In many ways, the greatest impact of section 5 is seen in local communities and particularly in rural areas. Voters in these areas don't have access to bring litigation under section 2. They need section 5's protection.
Finally, section 5 has a deterrent effect without the Department ever getting involved.
The rationale for reauthorizing section 5 of the Voting Rights Act is simple. Its history demonstrates that it works, but current conditions demonstrate that its purpose has not yet been fulfilled.
Thank you very much for your commitment to the democratic principals that the act seeks to make real for all Americans.
Mr. CHABOT. Thank you very much.
[The prepared statement of Ms. Earls follows:]
PREPARED STATEMENT OF ANITA S. EARLS
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Mr. CHABOT. Ms. Perales, you're recognized for 5 minutes.
TESTIMONY OF NINA PERALES, REGIONAL COUNSEL, MALDEF
Ms. PERALES. Mr. Chairman and Members of the Subcommittee, thank you for the invitation to testify regarding the reauthorization of section 5 of the Voting Rights Act. It is a further privilege to testify on the day in which all of us mark the passing and the great contribution of Ms. Rosa Parks.
I am Nina Perales, Southwestern Regional Counsel of MALDEF, the Mexican American Legal Defense and Educational Fund. Since our founding as a nonpartisan civil rights organization in 1968, MALDEF has served as the primary organization that litigates voting rights cases on behalf of Latinos in the United States.
I will focus my remarks today on the impact of section 5 upon Latino voters in the Southwest.
Section 5 was extended to the Southwest when Congress recognized that the widespread official discrimination against Latino voters had resulted in devastatingly low voter registration and turnout among Latino citizens. Congress also found that jurisdictions that were forced by litigation to abandon discriminatory election schemes tried to stay one step ahead of the courts by adopting new discriminatory practices that attempted to prevent Latino political empowerment.
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Section 5 mitigates discriminatory election practices not only in congressional redistricting but also at the State and local levels. By blocking discriminatory election practices before they go into effect, section 5 protects Latino voters from local jurisdictions that seek to limit their political participation by developing new exclusionary voting schemes. In Texas, there have been 196 section 5 objections to proposed election changes since 1975, more than any other State covered by section 5. Of these objections, the majority were objections to changes in local election practices.
For example, MALDEF filed suit in 2002 against the City of Seguin, Texas, when it attempted to prevent Latinos from gaining a majority of seats on the city council. The 2000 Census showed that the growing Latino population in Seguin comprised the majority of five of the eight city council seats. The district had formerly been balanced four-four, Latino and Anglo. The City responded by dismantling the fifth Latino majority district in its new redistricting plan, but the Justice Department indicated it would not likely preclear a plan with such an obviously retrogressive effect.
Seguin restored the fifth Latino majority district but promptly closed the candidate filing period so no Latino could run in the election for that district. On behalf of local voters, MALDEF filed a section 5 enforcement action against the City. After we secured an injunction against Seguin's election timetable, the Department of Justice precleared Seguin's redistricting plan with the five Latino majority districts. As a result of section 5, Latinos have now elected their candidate of choice to a majority of seats on the Seguin city council.
When Latino and Anglo voters consistently prefer different candidates, as is the case throughout much of the Southwest, the effective exercise of electoral franchise is contingent upon maintaining Latino voters' ability to elect their candidate of choice. For this reason, minority voters' ability to elect their candidate of choice has been the touchstone of the retrogression analysis. The recent U.S. Supreme Court decision in Georgia v. Ashcroft diverges from that standard and leaves minority voters with little protection against redistricting plans that diminish their political strength.
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In the Southwest, ''influence districts'' provide only the illusion of full political participation. The reality of strict racially polarized voting and racial segregation means in most instances Latino voters in minority Latino influenced districts actually exercise little real influence over the outcome of elections or the representative who's ultimately elected.
Section 5 objections interposed by the Justice Department with respect to Arizona legislative redistricting in 2002 and Texas legislative redistricting in 2001 highlight the need to preserve the ability to elect standard for Latino voters. In both cases, Statewide redistricting plans in these States pared down Latino majority districts so they no longer provided the opportunity to elect Latino candidates of choice. Pursuant to section 5, the Justice Department stepped in and halted these redistricting plans before they went into effect. Without a retrogression standard that recognizes the role of racially polarized voting in contemporary elections and that protects Latino voters' choices, Latinos will be left with no safeguard against redistricting plans that dismantle or eliminate Latino majority districts.
This Nation is still subject to the problem that section 5 was developed to address. Even today, many jurisdictions still respond to growth in minority political power by redistricting minority political opportunity. In Texas and Arizona, for example, the Justice Department continues to interpose a significant number of objections. The deterrent effect of section 5 stops many discriminatory election changes before they are enacted by covered jurisdictions.
Despite what you may hear from opponents of the Voting Rights Act, the emergency that led to the adoption of section 5 has not passed. Latino voters have not yet closed the gap in voter registration and turnout in the Southwest. Racially polarized voting has not declined significantly in the past 245 years, particularly in local elections.
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I urge you today to reauthorize section 5 with language clarifying congressional intent to prohibit intentional discrimination and to restore ability to elect as the touchstone for section 5 retrogression. Thank you.
Mr. CHABOT. Thank you very much, Ms. Perales.
[The prepared statement of Ms. Perales follows:]
PREPARED STATEMENT OF NINA PERALES
[Note: Image(s) not available in this format. See PDF version of this file.]
Mr. CHABOT. The Members up here now will have 5 minutes to ask questions, and I'll begin by recognizing myself for 5 minutes. I'd like to direct my first question to all the members of the panel; and if you'd like to answer and then explain your answer relatively briefly, that would be fine. We'll begin with you, Mr. Schlozman, and go down the line, if we can.
Has section 5 fulfilled its purpose?
Mr. SCHLOZMAN. I think section 5 has been extremely successful. If you look at the number of objections that the Department has interposed over the years, the declining number shows that it has had a very valid deterrent effect and I think for some of the reasons that Congressman Nadler even spoke of, that it acts as a deterrent for legislatures and governing bodies in adopting potentially retrogressive legislation.
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As I indicated at the outset of my remarks, the Bush administration is very supportive of reauthorization and looks forward to working with Congress in these hearings.
Mr. CHABOT. So in your opinion it has not yet fulfilled its purpose. It's fulfilling its purpose, is that correct? Not to put words in your mouth.
Mr. SCHLOZMAN. The Department is fully supportive of reauthorization and feels that it has a very beneficial effect.
Mr. CHABOT. Thank you.
Mr. Blum.
Mr. BLUM. Mr. Chairman, I believe that section 5 has fulfilled its purpose. It has been an evolutionary process. Five years after the initial passage of the Voting Rights Act, registration rates throughout the deep South skyrocketed, as they rightly should have. Throughout the '80's and the '90's we saw the fruits of section 5. It is my opinion that now section 5 should be sunsetted. It is creating more mischief than it is actually doing good.
I think section 2 is a very powerful tool to prevent the kinds of racial discrimination in the voting arena that many members of this panel and other members of the panel who have come before me have addressed. It should not be diminished, the power of that section, both in the hands of voters and in the hands of the Department of Justice.
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Mr. CHABOT. Thank you.
Ms. Earls.
Ms. EARLS. Section 5 has not fulfilled its purpose. You have to really look at what it was it designed to do and that is to prevent jurisdictions from enacting new measures that discriminate against minority voters. Jurisdictions are continuing to attempt to enact those measures, and section 5 is needed in the covered jurisdictions to prevent that.
It is much more efficient and much more easy for voters to take advantage of section 5 than it is for them to mount the effort and cost and time and expense required for litigation under section 2. So it's a very effective and efficient tool to prevent discriminatory practices, new discriminatory practices being put in place; and that purpose is still necessary.
Mr. CHABOT. Thank you.
Ms. Perales.
Ms. PERALES. Thank you. Section 5 has not fulfilled its purpose, but, in a sense, it fulfills its purpose every time there is an objection by the Justice Department. It's a living, breathing law; and you can see it operate from year to year in places like the Southwest for Latino voters.
I would agree with Ms. Earls that section 5 and section 2 are meant to work hand in hand. One cannot replace the other. Section 2 requires costly and time-consuming litigation. It also requires the bad change to go into effect and even be implemented for several election cycles before challengers can gather enough evidence to mount a successful court challenge, which is also incredibly costly, and although there is some attorney fees involved, you can never get back the money you put into section 2 cases. That has been MALDEF's experience.
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Mr CHABOT. Thank you very much.
Mr. Schlozman, would you describe the Department of Justice's role with respect to enforcing section 5? And what is the most common type of change submitted?
Mr. SCHLOZMAN. Congressman, we end up reviewing, as I mentioned, about 4,000 to 6,000 submissions every year that are submitted to the Attorney General for administrative preclearance. Very few section 5 cases are actually filed as declaratory actions in Federal Court.
The type of submissions almost all are very, very noncontroversial. I mean, as you look at the number of objections that we interpose each year, you can see that there really are just a tiny hair of them—sometimes averaging two or three a year. I put some charts that I made available over here. And I think that you all have been given copies that will describe the number of objections we have. In about 2 years after the decennial census, we will typically have more redistricting preclearances requests that come before us. They range, everything from methods of elections to annexations. But I would say that of that 4 to 6,000, just a tiny fraction of them are in any way controversial.
Mr. CHABOT. Thank you very much, and my time is expired.
The gentleman from New York, Mr. Nadler is recognized for 5 minutes.
Mr. NADLER. Thank you, Mr. Chairman.
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Mr. Schlozman, in the past, the Justice Department has prepared a summary of statistics and written case summaries to detail the enforcement of histories of the Voting Rights Act.
Has the Civil Rights Division anticipated a similar request from Congress for this kind of compliance data?
Mr. SCHLOZMAN. Well, all of the cases that we file, Congressman, are available on our Website so that the department has taken vigorous—it has taken seriously its obligation to enforce the Voting Rights Act, and everything that we file is fully available. If there are specific questions, we are happy to answer them.
Mr. NADLER. But where is the Voting Rights section with respect to producing the official report, for example, on the entire section 5 experience? Do you know, that is a useful thing to do?
Mr. SCHLOZMAN. Well, I guess I am aware of, in 2001, we put out a report that was designed to help jurisdictions through the section 5 process. I am not entirely sure. Are you talking about an annual report? An overall report?
Mr. NADLER. Just an overall report. I would hope that you could put together an overall report as to the entire section 5 experience which presumably would make the case for renewal.
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Mr. NADLER. Let me make that a formal request.
Mr. SCHLOZMAN. Yes.
Mr. NADLER. Thank you.
Ms. Perales and Ms. Earls, Mr. Schlozman has presented testimony that, over the last 10 years, there has been only a .2 percent, two tenths of 1 percent, rate of objections for section 5 submissions. Some have interpreted this low objection rate as a sign there is no continuing need for section 5 because these jurisdictions no longer discriminate. Obviously, you have stated that you have a different opinion. I agree with you that these statistics tell another story.
How can these numbers be read as actually supporting the continuing need for section 5?
Mr. EARLS. Thank you. I would say that the first thing to note is that those numbers don't tell the whole story. There are at least two other very important ways in which the section 5 review process works and results in jurisdictions not implementing discriminatory practices.
The first is when the department issues what is called a more-information letter. Rather than just issuing an objection, they ask a jurisdiction more questions about their practice. Very frequently that results in the jurisdiction modifying what they are planning to do. And I believe, I don't know off the top of my head, but I know there have been studies done recently on just how many more objection letters have been issued by the department and how often that resulted in a jurisdiction changing its practice.
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Mr. NADLER. Would it be possible for you or perhaps Mr. Schlozman to provide that information for the record?
Ms. EARLS. Yes, I can.
Mr. NADLER. Thank you.
Ms. EARLS. But the second important piece of the picture is the deterrent effect and the way that, the fact that section 5 review enters into the decision-making processes at the local level, at the State level, that is much harder to measure, but it is certainly very much a part of the process and impacts the system.
Mr. NADLER. Thank you.
Ms. Perales.
Ms. PERALES. I can think of several examples of the deterrent effect of section 5. We have seen it in the consideration of State court judges who are preparing to undertake redistricting when legislative redistricting has somehow failed. And there is quite a bit of consideration of section 5, which does apply to court-drawn plans at the State level, and what section 5 would allow and what it wouldn't allow.
Also, we do quite a bit of speaking before local jurisdictions when they are considering implementing a voting change. And we talk to them about section 5. And it becomes part of their consideration as well.
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So there are many changes. And for example, the example I gave you from the City of Seguin involved some communication between the Justice Department and the City where the Justice Department indicated that the proposed dismantling of a fifth minority district was not going to pass muster under section 5.
Mr. NADLER. Could you provide some of this information beyond what you can say in the next 30 seconds?
Ms. PERALES. Yes.
Mr. NADLER. Thank you.
Let me ask one more question—I see the yellow light is blinking—for Ms. Perales and perhaps Ms. Earls.
Section 5 has been blamed by some critics in Mr. Blum's written testimony, for example, for lack of competition in the electoral process. Given the level of data and computer software sophistication that is now available for artful redistricters, is section 5 really to blame, or are politicians behaving in just the same way as they have in the past with modern computer equipment? And how does this partisan behavior compare in noncovered jurisdictions?
Ms. PERALES. Section 5 is definitely not the culprit when comes to creating noncompetitive districts. The main impetus for creating noncompetitive districts comes from incumbents and political parties, not minority voters. For example, because most Latino majority districts in the Southwest tend to be located in specific areas of the State, they don't significantly affect congressional redistricting in other areas of the State. Latino majority districts in Texas are located in south Texas. There is the whole rest of the State on top of that that is subject to the whims of those who are drawing the redistricting plans.
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There are only two Latino congressional districts in Arizona out of a total of eight. Again, the creation of Latino majority districts holding the line or complying with retrogression does not cause other districts to become noncompetitive.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Iowa, Mr. King, is recognized for 5 minutes.
Mr. KING. Thank you, Mr. Chairman.
I listened to this testimony with great interest, and I think underlying all of this are some presumptions that don't fit very well for me; the presumption that Anglo voters consistently prefer different candidates than Latino voters for example. And as I listened to this testimony, I heard no one draw a distinction between Democrats and Republicans, for example. Has that been separated in your analysis when you want to measure what kind of candidate a White person prefers versus a Latino or an African-American? And I think I heard the most discussion out of Ms. Perales. So if you could respond to that, please.
Ms. PERALES. Thank you. Racially polarized voting is a mathematical fact. I don't have the time on this particular panel to lay out a lot of that data. But I know that witnesses who will follow will lay out that data.
And it has been important to stress the role of racially polarized voting in local elections, many of which are nonpartisan. Most mayoral elections and other local elections, school board elections are not run on a partisan ballot. And even at this level, in the Southwest, you do see persistent racial bloc voting.
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Mr. KING. Then, Ms. Perales, why do minorities have different interests in their local government or their State government or their country than non-minorities do? Isn't that at the root of this whole discussion?
Ms. PERALES. Well, we can say that minority voters tend to prefer, in the areas that MALDEF works in, different candidates than Anglo voters——
Mr. KING. You mean, a candidate of their race?
Ms. PERALES. Sometimes it is a candidate of their race, and sometimes it is not. And our investment is not in electing candidates of a certain color but in effectuating the vote for Latinos regardless of the color of a person that Latino voters prefer. It is about electing the candidate of choice. That candidate might be more interested, for example, on a local level at improving the streets and the drainage system in what might be the barrio of the town.
There are definitely policy choices that flow from electing the Latino candidate——
Mr. KING. If that is true, though, doesn't that undermine your argument? How do you even measure why a minority would prefer a different candidate if now you are analyzing it into the extent of the policy itself? Doesn't that negate your entire argument?
Ms. PERALES. No, Congressman King. We measure the fact that Latinos tend to prefer different candidates than Anglos. And when an election system discriminates or somehow cuts off or dilutes the ability of Latino voters to elect their candidate of choice, that is when we become involved.
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Mr. KING. Would you agree with the statistics that have been bandied about since last November that President Bush carried 44 percent of the Latino vote in America?
Ms. PERALES. I am aware that there are different polling results for the level of Latino support for President Bush during the November 2004 election. And I have seen different numbers come from——
Mr. KING. Would you agree with that number?
Ms. PERALES. With 40 percent?
Mr. KING. 44 percent.
Ms. PERALES. Because MALDEF isn't a polling organization, I don't have an official response on that.
Mr. KING. Does that sound reasonable in your judgment?
Ms. PERALES. Nationwide, I am not in a position to tell you nationwide.
Mr. KING. Southern Texas.
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Ms. PERALES. In south Texas, no. The support was not as high as 40 percent.
Mr. KING. Doesn't that seem curious to you that in the President's home State he wouldn't carry as high a percentage of the Latino vote as he would nationwide?
Ms. PERALES. Not necessarily, no, Congressman.
Mr. KING. It does to me.
Thank you, Ms. Perales.
I direct my next question to Mr. Schlozman. We have heard the statistics about Georgia and that nine of the 34 statewide candidates are minorities, and they have been elected statewide. And it appears statistically that at least Georgia has reached a standard here that we would have aspired to and I think be quite pleased with that result, especially if we would look back at the intent of the legislation going back to, say, 1965. And so at what point then should these jurisdictions finally be taken out of the penalty box and let them join the rest of America? Haven't they paid their debt, and haven't they proven that result?
Mr. SCHLOZMAN. Congressman, thank you for the question. Let me answer it this way, that the Department of Justice is a law enforcement agency. And we will enforce whatever statute Congress passes and puts on the books; that protection of voting rights has been an extremely important part of this Administration to both the Attorney General and the President, and we look forward to developing a legislative record as part of these hearings.
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Mr. KING. Thank you, and I would turn the question then to Mr. Blum. Same question, Mr. Blum.
Mr. BLUM. Congressman King, I think the data are conclusive not only in the State of Georgia but our preliminary findings, especially even in the State of Texas, that show that it is nearly impossible to tease out racial electoral issues from racial—or from partisan electoral issues, that Hispanic candidates in the State of Texas running statewide win with large crossover support.
African-American candidates running in the State of Texas statewide win with large crossover support. I am confident that when we have completed our studies, that other States and other jurisdictions, the three counties in New York, California counties, as well, will show that the level of racially polarized voting has diminished to a point where it is indistinguishable from other noncovered jurisdictions, such as Tennessee, West Virginia and New Mexico.
Mr. CHABOT. Gentleman's time has expired.
Mr. KING. Thank you. I yield back.
Mr. CHABOT. Thank you.
Gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. I might note, I had the opportunity this weekend to be in your great State of Virginia because it was my 30th reunion at the College of William and Mary, and I spent the weekend down there. Virginia is a wonderful State.
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Mr. SCOTT. Thank you. I hope you spent a lot of money in our State.
Mr. CHABOT. I did.
Mr. SCOTT. Thank you.
Mr. Schlozman, you indicated that you support reauthorization. Is that with any changes?
Mr. SCHLOZMAN. Congressman, the White House and the President has stated that we support reauthorization. And the President also stated through a spokesman that he will support any necessary strengthening of the Voting Rights Act.
Mr. SCOTT. Does that mean that if you have before you for preclearance a plan which clearly violates section 2, although it is not technically retrogressive, that you shouldn't preclear a section 2 violation?
Mr. SCHLOZMAN. I think that we are going to look at, as we develop these very useful hearings, developing a legislative record, and the White House is willing to consider any and all proposals.
Mr. SCOTT. Also, you have indicated that most of the submissions are somewhat perfunctory and a small percentage actually substantive and controversial. Your point to rejection, therefore, should be considered not out of the hundred percent but just out of those that are submitted. Can you give us some—will you submit for the record a sampling of the kinds of schemes that are submitted, notwithstanding section 5, so we can get an idea of what people are doing, even with section 5 looking them in the face?
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Mr. SCHLOZMAN. I would be happy to. We actually have a system that we call the submission tracking and processing system which breaks down every single type of submission to redistricting, annexation, polling place, all of that, and we are happy to make that information available.
Mr. SCOTT. I think it has been pointed out that people, even looking at section 5, try to get these schemes in. You can just extrapolate what they would do if you didn't have section 5.
Ms. Perales, you indicated that when you file suit under section 2, you can't get your money back. You are entitled to attorneys' fees. Are there fees that you have to expend in litigation that you cannot recover?
Ms. PERALES. Yes, Congressman Scott.
Mr. SCOTT. What are examples of some of those expenses that are not recoverable in a section 2 litigation?
Ms. PERALES. The example that represents the bulk of the costs in section 2 litigation is expert fees.
Mr. SCOTT. And what portion of your expenses would expert fees be? Is that a substantial amount?
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Ms. Earls, you want to comment, because you have been involved in litigation too?
Ms. PERALES. It could be as high as 80 percent Congressman.
Mr. SCOTT. Eighty percent of your expenses are expert witness fees?
Ms. PERALES. Yes.
Mr. SCOTT. Which are not recoverable as part of the attorney fee recovery?
Ms. PERALES. Yes, Congressman.
Mr. SCOTT. And that is a burden on the victim of discrimination because it only applies if you win; is that right?
Ms. PERALES. Yes.
Mr. SCOTT. You only get attorneys' fees when you win. So you're only talking about the recovery when you win, and 80 percent of it, even after you have won, you can't recover. Is that correct?
Ms. EARLS. That is correct.
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Mr. SCOTT. Mr. Blum, you have indicated, you have gone to great lengths to show the rate of voting, rate of registration. We are talking about minority voting rights. Is it your suggestion that if minorities vote at the same rate of the majority, that they are not entitled to section 5 protection?
Mr. BLUM. Well, I think it is a broader question than that, Mr. Scott.
I think that those indicators that we have analyzed, that particular data and the situation on the ground in many if not all of the section 5 jurisdictions leads me to believe that if it—that other noncovered jurisdictions should be required to have the same kind of oversight as the covered jurisdictions today.
Mr. SCOTT. Well, you know how you got covered to begin with? You had a history of scheming to deny minorities their voting rights, implementations of various schemes, and but for the Voting Rights Act, you can imagine they would still be doing that. Didn't they kind of earn their coverage?
Mr. BLUM. Well, they surely did. And I think all of us agree that the jurisdictions that were covered in 1965 were properly covered. I think the broad question is, when and what evidence needs to be in the record for those jurisdictions to escape coverage?
And I think the data are fairly conclusive now, Mr. Scott. In the State of Virginia, surely in the State of Georgia and others, the rate of minority election participation crossover support is overwhelming. And I think the time has come now for——
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Mr. SCOTT. My point is, now, if you're using the measure of rate of voting, you still have the same kind of people in charge in the majority left to their own devices. Don't you suspect that they might inflict schemes on the minorities, and if the minorities are protected by section 5——
Mr. BLUM. No, sir I don't. I believe that America has moved on for the most part from the policies and attitudes of 1965. It is not perfect. But the kind of oversight that section 5 provides now I think is too broad.
Mr. SCOTT. Mr. Chairman, I would say that now we are into opinion and not into fact, and we will just disagree on that opinion.
Thank you.
Mr. CHABOT. Very good. The gentleman's time has expired.
The gentleman from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. FEENEY. Yes, to follow up on the gentleman from Florida's questions, Mr. Blum, I was a big fan of the American Enterprise Institute. I know Ms. Abigail Thernstrom. I appreciate a lot of her work. But the conclusions that you draw from the study submitted don't seem to meet the facts as we have determined them with respect to section 5. And I appreciate your last answer, which was just your opinion, and every American is entitled to their opinion, but not only does your testimony include the fact that Bull Conners is dead, you go on and say, I quote, the written testimony, and so, is every Jim Crow era segregationist intent on keeping Blacks from the polls?
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Now why hasn't the New York Times reported that? It seems like it would be a Newsworthy event if, in fact, it was true, and surely you can't actually mean that bigotry in America with respect to Blacks is totally dead because that would be tremendous news.
Mr. BLUM. You're right. And I think a more narrowed statement such as, every official throughout the covered jurisdictions, either elected or appointed official, who has the power to keep minorities from registering and participating, those Jim Crow era segregationists are no longer in office.
And in fact, I think 65 percent, closer to perhaps 70 percent of the people actually living in Georgia today were not either born at the time that the Voting Rights Act was passed or they have moved to Georgia since that time.
Mr. FEENEY. Still, that is good news. It is a narrower conclusion or opinion that you have, but that is something that isn't subject to your study, and you don't have any proof or evidence that there is no segregationist or bigoted intent of any official holder in all of Georgia. I am sure if you do, we will submit it for the record.
But having said that, remember, section 5 gets not to just purpose but, unlike section 2, which does deal with voter intimidation and intentional efforts for bigoted or discriminatory purposes, section 5 actually deals with purpose and, more importantly, effect and presumably all of the 4 to 6,000 applicants for administrative waiver or actual full section 5 cases that go to Mr. Schlozman's office, very few of them actually apply for request for change of procedures that would say something like this: We would like to have people in white sheets carry baseball bats and police the polls this November, would that be okay? The bottom line is section 5 gets to much more subtle things like annexation, like at-large voting, like redistricting and other processes. And often those processes are not necessarily adopted with any discriminatory intent whatsoever, but the purpose is not to go backwards. And the conclusion you draw, which I think is great news, we have got a lot of progress made in Georgia in terms of participation of African-Americans, cross voting between races, all that virtually every American that I know and apparently every official in Georgia welcomes as good news, but the conclusion you draw is something akin to the fact that because we have had meat inspectors in America for the last 90 years and we have severely diminished the cases of meat poisoning, we ought going to do away with American meat inspectors. And I just don't get, from the study that you have submitted, to the notion that annexation processes, at-large voting and other processes can't be changed even if not for intent-oriented purposes in a way that will greatly diminish the participation that the Voting Rights Act has opened up. I don't get the connection between the evidence you have submitted and what we are trying to decide here today.
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Mr. BLUM. Well, I think Professor Gaddie who will be here this afternoon may be in a better position to present more detailed statistical data that would go to the heart of your argument. But at least for my purposes, Congressman, I believe that the data that you have before you in just the State of Georgia answers those questions. Yes, we don't need—at what point do we not need an inspection?
Mr. FEENEY. That's a fair question. By the way, O'Connor said, with respect to admissions in Michigan Law School, 25 years, so she has picked her date. But I will leave you with two last questions that maybe you can answer quickly.
If it is true that we can move on beyond section 5, why not repeal the entire Voting Rights Act? And secondly, isn't it true that Georgia any time it wants to can retain an attorney as counties in Virginia have done and come out from under the burdens of section 5 if they demonstrate certain things?
Mr. BLUM. I think the bailout provision, as this Committee has started to examine it, needs to be readjusted. Clearly, if there is no entire State in the Union over the last 10 years that qualifies for bailout, then perhaps that hurdle is just simply too high.
And in terms of repealing the entire Voting Rights Act, I don't think that is necessary. I don't advocate that, and I don't think that section 2, which I stand by as a powerful tool, should be repealed.
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Mr. CHABOT. Gentleman's time has expired.
The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
Mr. WATT. Thank you, Mr. Chairman, I am beginning to worry, because 2 hearings in a row, I have to agree with Mr. Feeney. That unnerves me.
He picked up on exactly where I was going with Mr. Blum. First of all, I just want to thank Mr. Blum for being here because one of the things I was beginning to get a little worried about was that it was going to appear that we were stacking the deck and that there weren't voices being heard at these hearings that didn't—that we were just kind of having a charade here. And I think it is important for us not to engage in a charade as we do this, and to have different perspectives is extremely important and to have Mr. Feeney have you acknowledge that sometimes you can subject yourself to hyperbole as you did. I couldn't imagine that you believed that every Jim Crow era segregationistis intent on keeping Blacks from the polls; you couldn't possibly believe that. And you acknowledged that to Mr. Feeney, so I am glad to know that he picked up on it.
But I do want you to know that I really appreciate having your perspective here. And like Mr. Feeney, I don't draw the same conclusions from these studies as you seem to be drawing. But I think it is important us for us to make sure that the public recognizes that this is not just, you know, we are not just going about this in a way that is not hearing all sides of it. In fact, one of the points that I picked up on the commission's testimony, the representative who was here at the last hearing, was the fact that they are at every hearing having the public just be able to come up and express their opinion on the importance or lack of importance of the Voting Rights Act or the expiring provisions. So this is more serious than just to do it kind of as an afterthought.
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So I should have recognized, Mr. Chairman, that there's a third reason I should have been very grateful about this hearing is that the fact that Anita Earls is my former law partner, was my former law partner. And when my congressional district was subjected to a number of—Shaw v. Reno and subsequent attacks, she was one of the lead counsel in the case. So I am delighted to have her here because I know she knows what she is doing when it comes to voting rights. She has managed to keep me here or at least keep my district intact so that I can have a fighting chance of being here.
How long does it take to litigate these cases, Ms. Earls? Ms. Perales?
One of the things I have always thought was an important thing is, this preclearance requirement allows you to stop stuff that you really can't effectively stop through litigation because it takes so long to get to a conclusion. The election is over. The person has already been elected under the system that would not have been precleared if you didn't have a preclearance process.
Just talk for a little bit about how long it takes to process these voting rights cases.
Ms. EARLS. A full section 2 case litigated just through the end of trial is at least 2 years. You can't do it any faster than that. There are always the outlyers, the 15-year cases. But 2 to 5 years is a rough average.
Mr. WATT. Is that your experience, Ms. Perales?
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Ms. PERALES. Yes, Congressman Watt. And compared to section 5, if the jurisdiction goes ahead and follows the process, it is 60 days from the submission when it is a complete submission. And if the jurisdiction doesn't comply with section 5 and just kind of heads out there on its own, we can bring a lawsuit and get an injunction right away. So there is a very rapid conclusion to issues under section 5.
Under section 2, 2 years might be even an optimistic estimate if you need to allow several election cycles to pass in order to gather the evidence you need to persuade the court that the challenged election mechanism is dilutive.
Mr. CHABOT. The gentleman's time has expired.
Mr. WATT. Thank you, Mr. Chairman. I yield back.
Mr. CHABOT. I thank the gentleman for yielding.
I want to thank the panel very much for their testimony and answering our questions here today. We sometimes have a second round. Since we have another hearing this afternoon at 2 o'clock on the Voting Rights Act, I think we will forgo that at this time. And I will let the panel off relatively easy here this morning. But you were very helpful in this very important matter. And we appreciate your attendance and your candid responses to all our questions.
If there is no further to business to come before the Committee, until 2 o'clock this afternoon, we are adjourned.
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[Whereupon, at 12:34 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
[Note: All items appearing in the Appendix in Volume 1 and 2 are scanned images and are not available for viewing in this format. See PDF files of Volume 1 and 2 to view complete hearing record.]
(Footnote 1 return)
The Committee had not received the information referred to at the time this hearing was printed.
(Footnote 2 return)
28 C.F.R. §51.3.
(Footnote 3 return)
42 U.S.C. §1973b.
(Footnote 4 return)
Subparagraph 4(a)(1) of the Voting Rights Act, 42 U.S.C. §1973b(a)(1), contains detailed procedures by which a covered jurisdiction may secure a declaratory judgment excusing the jurisdiction from further compliance with section 5. This procedure frequently is referred to as the ''bail out'' provision.
(Footnote 5 return)
28 C.F.R. Appendix to Part 51—Jurisdictions Covered Under Section 4(b) of the Voting Rights Act, as amended.
(Footnote 6 return)
A chart denoting the number of annual submissions received by the Civil Rights Division pursuant to section 5 each year is attached hereto.
(Footnote 7 return)
The Voting Rights Act: Ten Years After, U.S. Civil Rights Commission, January 1975, page 43.
(Footnote 8 return)
Current Population Survey, U.S. Census Bureau.
(Footnote 9 return)
Black Elected Officials—A Statistical Summary 2001, Joint Center for Political and Economic Studies, Table 1, page 13.