SPEAKERS CONTENTS INSERTS
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24–504 PDF
2006
VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION OF THE RETROGRESSION STANDARD
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
NOVEMBER 9, 2005
Serial No. 109–74
Printed for the use of the Committee on the Judiciary
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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
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
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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
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
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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
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
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NOVEMBER 9, 2005
OPENING STATEMENT
The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, Subcommittee on the Constitution
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, Member, Subcommittee on the Constitution, and Ranking Member, Committee on the Judiciary
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
The Honorable John Lewis, a Representative in Congress from the State of Georgia
The Honorable David Scott, a Representative in Congress from the State of Georgia
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The Honorable Sanford D. Bishop, Jr., a Representative in Congress from the State of Georgia
The Honorable Steve King, a Representative in Congress from the State of Iowa, and Member, Subcommittee on the Constitution
WITNESSES
Mr. Theodore M. Shaw, President and Director-Counsel, NAACP Legal Defense and Educational Fund, Inc.
Oral Testimony
Prepared Statement
Ms. Anne W. Lewis, Attorney, Strickland Brockington Lewis LLP
Oral Testimony
Prepared Statement
The Honorable Tyrone L. Brooks, Sr., Member, Georgia General Assembly, and President, Georgia Association of Black Elected Officials
Oral Testimony
Prepared Statement
Mr. Laughlin McDonald, Director, Voting Rights Project, American Civil Liberties Union, Fnd.
Oral Testimony
Prepared Statement
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APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable John Lewis, a Representative in Congress from the State of Georgia
Material Submitted for the Record by Mr. Chabot on November 18, 2005:
Prepared Statement of Theodore S. Arrington, Professor and Chair, Department of Political Science, University of North Carolina at Charlotte
Letter from MALDEF, NCLR, NALEO, and LULAC to the Honorable Steve Chabot regarding Georgia v. Ashcroft and the Latino community
Prepared Statement of Robert A. Kengle, former Deputy Chief, Voting Section, Civil Rights Division, Department of Justice
Georgia v. Ashcroft (539 U.S. 461, 123 S.Ct. 2498)
VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION OF THE RETROGRESSION STANDARD
WEDNESDAY, NOVEMBER 9, 2005
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House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:03 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chair of the Subcommittee) presiding.
Mr. CHABOT. The Committee will come to order.
I'd like to thank the witness panel for being here, and the Members. We'll have a number of Members coming here shortly.
We understand that we're going to have votes here sometime relatively soon, so we're going to try to get started as quickly as possible and as on time as possible.
We want to welcome and thank everyone for being here this afternoon. This is the Subcommittee on the Constitution. I'm Steve Chabot, the Chairman of the Committee.
It's the seventh in a series of hearings on the Voting Rights Act that's been held, and the fourth examining section 5 and the preclearance requirements the section imposes on covered States and counties. Section 5 is one of several temporary provisions set to expire in 2007 if Congress does not act to reauthorize.
This afternoon, we will continue our examination of recent Supreme Court decisions. In particular, we'll focus on the impact that these cases have had on section 5's ability to protect minority voting rights.
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I'd like to thank our very distinguished panel of witnesses for being here today. I know that this is a topic of interest to many, and look forward to today's discussion.
Congress enacted section 5 in response to efforts by certain covered States and counties to undermine advances made by minorities in seeking equal treatment under the law. Section 5 prevents covered jurisdictions from enacting any voting or election change until it has been precleared by the Department of Justice or by the U.S. District Court for the District of Columbia.
To successfully preclear a change, a covered jurisdiction must establish that the change ''does not have the purpose and will not have the effect of denying or abridging a citizen's right to vote on account of race, color, or language minority status.''
As we've discussed in prior hearings, voting changes submitted under section 5 are evaluated under the retrogressive standard, as set forth in the 1976 case Beer v. United States, which ensures that ''the ability of minority voters to participate in the political process and to elect candidates of choice is not diminished by the voting change.''
This was the standard until 2003, when the Supreme Court deviated from the straightforward retrogressive application in Georgia v. Ashcroft. Upholding the State of Georgia's state senate redistricting plan, the U.S. Supreme Court determined that a retrogression analysis requires a ''totality of the circumstances'' evaluation, including examining a number of factors; not just the ''comparative ability of minorities to elect candidates of their choice,'' when determining whether a plan is retrogressive under section 5.
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Subsequent attempts to administer Georgia's retrogressive analysis have proven to be inconsistent. Moreover, the Georgia decision raises questions as to what voting and election changes Congress intended section 5 to prohibit.
This hearing will continue to focus on the purpose of section 5; specifically, the impact of the 2003 Georgia v. Ashcroft decision on minority voters and the enforcement of section 5 by the Department of Justice and the U.S. District Court.
Again, we will look forward to the panel's testimony this afternoon and the questioning that we'll have an opportunity to do.
That concludes my statement. I'll now yield to the gentleman from New York, the Ranking Member of this Committee, Mr. Nadler.
Mr. NADLER. The Honorable Ranking Member of the full Committee, the gentleman from Michigan, first.
Mr. CHABOT. Okay. Without objection, the distinguished Ranking Member of the full Judiciary Committee, Mr. Conyers, is recognized.
Mr. CONYERS. Thank you, Chairman Chabot. I'm so happy that we have these four witnesses here. And I agree with you that this is a very important discussion that we're embarking upon.
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Georgia v. Ashcroft: can it be made workable? In the Texas congressional redistricting plan, we packed in four and we dismantled four influence districts. We tried this. And now the people that are behind the plan are holding up the Voting Rights Act of 1965, of all things, to justify what they did.
Now, what happened in the Georgia case is that it was remanded before we could get it ended. This other Georgia case came in, and they held everything that they were doing moot until then. And so we ended up with an independent finding.
And so what I'm here to suggest to you is that we're tossing around the standard way we've looked at this question, with opportunity districts, versus the new way that we're looking at it, with influence districts. And we're going to have to come to some conclusion here.
And your contribution to this discussion is going to be very important, because we've seen what happened in Texas; we've seen what's happened in Georgia. We realize there was some untimely procedural intervention that prevented Ashcroft, the Ashcroft case, from coming to a full resolution.
So we want you to be giving us the advantage of your thinking about the future of the Voting Rights Act of 1965, not from hindsight, but where we're going in the future. And that's what we've got to examine here today.
There are those who think that we can work out a compromise on this. There are others who tell me that we've got to—that this is the fork in the road; that we've got to come together and try to decide which way we go. And so I'm hopeful that your thinking and discussions on this will help lead us into a result that will stand the historic test of time.
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Does anybody want me to yield to them? Mr. Scott? Oh, unless everybody is going to take their own time. Then I'll turn my time back in. I thank you very much, Mr. Nadler and Mr. Chabot, for allowing me to go first.
Mr. CHABOT. Thank you very much, Mr. Conyers. We appreciate your statement. Mr. Nadler, did you want to make a statement?
Mr. NADLER. Yes, thank you, Mr. Chairman. Mr. Chairman, I want to join you in welcoming our distinguished panel of witnesses. I look forward to their important testimony.
The question of retrogression, especially as raised in Georgia v. Ashcroft, is of paramount importance. It goes to the heart of how we measure the ability of voters to express their will at the polls in a meaningful and effective manner.
The Supreme Court's decision has met with a great deal of criticism. Ultimately, Congress must decide on language that will in some concrete manner provide minority voters with the tools they need to extract from voting officials in the Federal Government a meaningful result.
Applying a retrogression standard is, in the final analysis, a very fact-based exercise. Generalities will be of little help if we cannot provide clear guidance that will protect voters from being deprived of the ability to have their voices heard and to affect the outcome of elections.
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It is my hope that today's witnesses can give us some concrete guidance as to how the Georgia v. Ashcroft decision has been applied, what its limitations and consequences have been, and how in a really practical sense Congress should deal with the problem of devising a meaningful retrogression analysis.
I look forward to the testimony. I yield back the balance of my time. And I must add, unofficially, I am delighted to see a sign here that says ''Representative Brooks.'' I recall a time when Representative Brooks was Chairman of this Committee—not perhaps the same Representative Brooks. Thank you, Mr. Chairman.
Mr. CHABOT. Thank you very much. The gentleman from Virginia, Mr. Scott, is recognized.
Mr. SCOTT OF VIRGINIA. Thank you, Mr. Chairman. Mr. Chairman, American's long and deliberate misadventure with segregation was ended by many things, including the civil rights movement sparked by Rosa Parks. But nothing dismantled the ''Jim Crow'' South and created true opportunities for equal political participation more than the Voting Rights Act of 1965.
By tearing down barriers to equal opportunity for minorities at the ballot box, the Act removed the essential political mechanism that maintained the legal structure of segregation. As the Supreme Court has said, the equal right to vote is fundamental because it is ''preservative of all rights.''
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Mr. Chairman, the genius of the Voting Rights Act is not only that it abolished literacy tests and other schemes which had been used to deny Blacks and other minorities the right to vote, it also prohibited—under section 5 of the Act, it prohibited the jurisdictions with a history of discrimination from implementing new voting practices without first having those practices precleared by Federal officials.
This important provision eliminated the incentive that covered jurisdictions would have from coming up with new schemes to dilute minority voting strength, and benefitting from their illegal activity while the victims file lawsuits or go through the legal process. Sometimes that takes many years; sometimes those groups, the victims, can never come up with the funds necessary to vindicate their rights.
More than 10 years after the passage of the Voting Rights Act, the Supreme Court has interpreted ''discriminatory effect'' to mean retrogression and that the minority community is made worse off by the change.
The Beer decision, Beer v. U.S., went further, to define retrogression as a failure to preserve the ability of minority voters to elect candidates of their choice. This standard was ratified when the Congress extended section 5 in 1982, and was consistently applied by the courts and the Department of Justice for more than a quarter century.
Recent cases have raised questions about exactly what the standard is now, and so several questions need to be addressed. And one is whether or not you can trade a district where the minority community has an ability to elect a candidate for influence districts where they do not have the ability to elect candidates. And another is, if you slightly dilute a district's minority population, but it still has the ability to elect, can you consider the establishment of influence districts?
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Mr. Chairman, I look forward to the testimony of our witnesses. Section 5 and other expiring provisions are essential to ensuring fairness in our political process and equal opportunity for minorities in American politics. And so I think it's essential that we strengthen section 5 and clarify its meaning, so that we do not go backwards in enforcement of minority voting rights.
So I look forward to the testimony, and thank you, Mr. Chairman. And before I yield back, I would yield to the gentleman from Michigan.
Mr. CONYERS. Thanks for a great statement, Mr. Scott. The question of whether the elimination of influence districts could serve as the grounds for a section 5 objection is a very important one. It seems to follow from Georgia v. Ashcroft.
We've seen that very situation in the Texas congressional redistricting plan that, according to one of our witnesses, eliminated four minority influence districts to create a district that elected an Hispanic candidate who did not have the support of Latino voters. Thank you.
Mr. SCOTT OF VIRGINIA. Yield back.
Mr. CHABOT. Okay. The gentleman yields back.
The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.
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Mr. WATT. Thank you, Mr. Chairman. And today is the seventh hearing on the Voting Rights Act. And as I have at all of the hearings that I've attended, I want to start by thanking Chairman Chabot and, in his absence, thanking Chairman Sensenbrenner for convening this hearing and for a commitment to building the kind of record that we need going forward to sustain whatever extensions we do to the Voting Rights Act.
In addition to examining the purpose, effect, and continuing need for the expiring provisions of the Voting Rights Act, the reauthorization process also demands that we analyze judicial interpretations of the Act that may have undermined the essential purpose and effectiveness of the Act's provisions.
So today we focus on the impact recent Supreme Court decisions have had on section 5 and the obligation of covered jurisdictions to demonstrate that changes in voting policies and practices will not deny or abridge a citizen's right to vote on account of their race, color, or language minority status.
In 1976, the Supreme Court decided the Beer v. U.S. case, decided that an election change should not be precleared under section 5 if ''the ability of the minority groups to elect their choices to office is diminished.'' After Beer, the Supreme Court and the Department of Justice defined ''retrogression'' in the context of section 5 as a change in voting or election practices that resulted in an adverse effect or a backsliding in the opportunities of a minority group to elect the candidate of their choice.
This touchstone, relatively clear ''ability to elect'' standard was accepted without modification by Congress in 1982, when Congress amended section 2 and extended section 5 for 25 additional years. In 2003, the Supreme Court deviated from the recognized retrogression standard, and replaced it with a more amorphous approach in determining whether a redistricting plan made minority voters worse off.
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Although there are parts of the Court's decision for which there is widespread support, the Court's suggestion that the effective exercise of the franchise can be achieved by spreading minority voters over a greater and greater number of districts to enhance their influence has raised some important concerns.
Nine justices agreed, as do I, that section 5 does not prohibit the reduction of super majority minority voting age population percentages from that in a benchmark plan. Where the majority in Georgia v. Ashcroft strayed, however, losing four justices in the process, was in its failure to enunciate an articulable standard under which the opportunities to elect are preserved.
To the extent that Georgia v. Ashcroft depreciates the role of minority groups' ability to elect plays in the retrogression analysis, it invites the potential for an erosion of the protections embodied by section 5. To paraphrase one professor, Professor Pam Karlin, there is a retrogression of the retrogression standard when you do that.
The ability to elect has always been the cornerstone of section 5, and should remain. Of course, the devil is in the details. And that's what we've got all these excellent witnesses here for today: to give us the details on how we ought to be addressing what I think we all agree have been some missteps on the part of the Supreme Court in playing out what the Congress' intent was. But I think there's general agreement—or there seems to have been in prior hearings—on that proposition.
The more important question is: how do we correct them in the renewal or extension process, going forward? And we need to be very careful about that. And I couldn't think of a more elite and distinguished and deserving and qualified panel of witnesses than the ones we have today, to tell us how to navigate those waters going forward.
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I yield back, and thank the gentleman again for holding the hearing.
Mr. CHABOT. I thank the gentleman.
I'd also like to recognize three additional Members of the House who are not actually Members of this Committee, but nonetheless are very active and distinguished Members that I would like to ask unanimous consent that the three Members be able to fully participate in the hearing today, both to make opening statements, should they choose to do so, and also question the witnesses. And without objection, so ordered.
And I'd like to first recognize—and all three gentlemen happen to be from the State of Georgia. I'd first like to recognize Mr. Lewis, who of course is an inspiration to so many Members of the House, because he is one person who lived and shed blood during these years that we're discussing and marched in the front lines of the Civil Rights Movement. And so we have much to learn from him. And so I would recognize him for the purpose of making an opening statement.
Mr. LEWIS OF GEORGIA. Well, thank you very much, Mr. Chairman, for allowing this non-Member of this Committee to be here. And thank you for your kind words.
I'm delighted to see such a wonderful panel; three members of this panel being from the State of Georgia, from my district. And it's good to see you. You're so well qualified to testify and speak on Georgia v. Ashcroft. Good to see Ted Shaw.
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I've said in the past, and I'll say it again today, Mr. Chairman, I would like to maybe submit a statement for the record.
Mr. CHABOT. Without objection, so ordered.
Mr. LEWIS OF GEORGIA. The Voting Rights Act, and section 5, was good in 1965, is good in '05, and I think it's still good in years to come. Some of you may notice from Georgia v. Ashcroft that so many people have used my statement—there was an affidavit, I then testified in the Court—have used it in a number of occasions and taken it out of context. I still believe we made a lot of progress. We've come a distance. But we still have a great distance to go.
I will be eager to listen to what each one of you has to say, because the right to vote and the right to be able to fully participate in the election process and to have an opportunity to select a candidate of your choice, to have influence, I think is precious. It's almost sacred.
And I want to commend each and every one of you for all the hard work that you all have done over the years to bring us to where we are. Some of you have been in this field for a long time, for years. So I welcome you.
Thank you, Mr. Chairman. I yield back.
Mr. CHABOT. Thank you very much.
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The gentleman from Georgia, Mr. Scott, is also recognized for the purpose of making an opening statement. I would once again note that his attendance during the course of these hearings has been pretty extraordinary for a non-Member of this Committee. So thank you very much for your interest.
Mr. SCOTT OF GEORGIA. Thank you very much, Mr. Chairman. And again, it's a delight to be here. And I thank you for your courtesies, and the entire Committee.
This is indeed a very extraordinary day. It's so good to see all of our home people from Georgia here. Representative Tyrone Brooks, we served in the legislature together there, in the House and the Senate, for over a quarter of a century together; been through many battles, and certainly through the reapportionment battles of 1980, 1990, 2000. And as a result of all of that, the history books are clear that, without any question, Georgia is indeed the poster child for the greatest reaffirmation of need for the Voting Rights Act of any State in this Nation.
And to you, Mr. McDonald, it's so good to see you. And your reputation certainly precedes you in all that you have done, all the sterling legal leadership you've provided in each of these cases in Georgia. This Committee is certainly in for a treat, and we're proud to have you and Ms. Anne Lewis. You represented those plaintiffs for each of the cases, all the way stretching back to the early '90's—I think 1991, as well, and all of those. And certainly to you, Mr. Shaw; I don't want to leave you out. But I'm sure that we're glad to have you.
This is very important, because Georgia v. Ashcroft, I think, really presents to us an excellent opportunity to show why we definitely need to have section 5 extended, and all of the parts extended.
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This whole issue with the case of Georgia v. Ashcroft shows clearly this schizophrenic, dichotomized mindset that this Nation has historically had in terms of extending voting rights, and then taking them back. It sort of starts out right from the foundation of this country, when we had those very eloquent words that, ''We hold these truths to be self evident, that all men are created equal,'' and ''...endowed by their Creator with certain inalienable rights; among these, life, liberty, and the pursuit of happiness.'' At the same time, that individual that wrote those magnificent words owned slaves; was the father of slaves.
We come on down to the year of 1870, when men and women of color sat right here in Congress; were given that right to vote and participate. Then it was snatched away. We even had the 15th amendment to come and to say nothing would abridge that right—race, creed, or color, or servitude. And still, it was snatched away.
And not until—largely through the works of John Lewis and Martin Luther King and Rosa Parks and all of those—we were able to get the 1965 Voting Rights Act—a hundred years, over 200 years since we were founded. And here we are today, just 40 years later after the Voting Rights Act.
Even with the threat of this Act not being renewed, presents the height of hypocrisy of our country; especially when we have men and women dying on the battle fields of Iraq to bring democracy there; and we have these efforts to overturn the one basic legislative instrument we have that guarantees and enforces our rights here.
So I'm looking forward to this. It's set very, very strongly. And let us hope that we will be able to overturn this influence district phenomenon, and make sure we make plain the purposeful intent of discrimination, which we need to have made today, the strength of the Constitution that stands behind this Act; and then how we can practically excise Georgia v. Ashcroft out of the law, so that we can get the Voting Rights Act back and section 5 back, without this great threat to it inside of it.
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I look forward to the discussion. Thank you very much, Mr. Chairman.
Mr. CHABOT. Thank you. The gentleman yields back.
The gentleman from Georgia, Mr. Bishop, is recognized for 5 minutes.
Mr. BISHOP. Thank you very much, Mr. Chairman. I, too, would like to thank you for holding this hearing, and certainly for allowing me, as a non-Member, to join this distinguished panel.
I'd like to join my colleagues in welcoming my friends of longstanding: my former colleague, Representative Tyrone Brooks, who has been a friend of longstanding; Mr. Teddy Shaw, with whom I've been affiliated with the NAACP Legal Defense and Education Fund for many, many years; Ms. Lewis; and of course, Mr. McDonald, who I've had occasion to have a relationship with, both personally and professionally, in these reapportionment battles that we've been involved in over the years.
I, of course, served in the State senate on the Reapportionment Committee, and of course we collaborated a great deal, and of course I was involved when I was in the State House for 14 years in three or four redistricting battles there. And of course, one of them resulted in, of course, my being able to come to this body.
And so I certainly welcome you, and I'm delighted that you are here, because all of you are certainly experts in this field and have a great deal to bring.
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I am particularly interested in this because four of our colleagues—I should say, seven of our colleagues from Georgia, on the other side of the aisle, have made it a point that in the debate on extension of the Voting Rights Act this year they intend to do one of two things: to either repeal section 5, which requires extensive oversight; or to have section 5 extended to all 50 States.
I feel very strongly against either and both of those proposals. I can see very well that being—Reconstruction revisited, if the Justice Department no longer has to oversee and has to review and preclear, or Federal courts preclear, the actions of the State legislatures of the covered jurisdictions.
Particularly, I'm brought to mind the picture ID bill that passed in the last session of the Georgia general assembly, which was approved by the Justice Department, only to be, fortunately, enjoined in its application by the United States Circuit Court of Appeals.
I'd like to know at some point during your testimony if you could touch on the legal principles and the legal peril that the constitutionality of the Voting Rights would face in the event that the law, section 5, is extended to all 50 States; and also, what you portend the effect would be if section 5 were not extended at all, if it were repealed; what you, based on your experience, would believe would be the outcomes.
Thank you for coming, and I look forward to your sharing your advice, your counsel, your wisdom with this Committee as a part of the record of these hearings, which will be a part of the records of this Congress, so that we can, hopefully, be enlightened as we face this very, very important and significant issue.
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Mr. CHABOT. Thank you. The gentleman yields back.
I might note that there are votes on the floor, but what we're going to do is finish up opening statements here. And we've been joined by two additional colleagues: the gentleman from Arizona, Mr. Franks, who I understand is not going to make an opening statement at this time; and the gentleman from Iowa, Mr. King, who will. So the gentleman from Iowa is recognized for 5 minutes—or less, whatever he takes up.
Mr. KING. Hopefully, less, Mr. Chairman. I thank you for recognizing me, and I thank all the panelists and look forward to your testimony subsequent to our vote.
And as I listen to the opening statements here, a number of things come to mind. And one of them is, as I look at some of the language here and some of this case law and some of the opinions, that I'm a very strong believer in individual rights, and I've never believed that there was such a thing as group rights in this country; and that we ought to do everything we can to protect the sovereign rights of every individual in America; and in fact, that the people themselves are sovereign.
In the end, we're the ones, as the voices of the people, that should make the decision on whether in fact we have voting districts that represent the voices of Americans, or whether we don't.
And I come from a State that has a unique approach to this, in Iowa. And we have had for a long time a redistricting law in Iowa that requires that three non-partisan people go behind into a room, close the doors, and draw districts in Iowa that are compact, contiguous, and balanced in population as possible. And if they draw that district and it can be challenged by the language, we can then vote that down. If we vote it down a second time, then it goes to the courts, and the judges then write the district.
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Well, I think what happened in Ohio last night was an opinion that—I have come to the conclusion in Iowa that nobody really wants the judges to write the districts in America.
And I'll say another thing is that it's really not possible to find three non-partisan people, anywhere in America. So I don't know how you end up with a qualification that lets us get maybe where we'd like to go with this, because we're all built in with inherent biases of one kind or another. And so, you know, I listen to this with great interest.
Another point that I would bring up is that, under the Beer decision, no voting procedure changes would be made that would lead to retrogression in positioning of racial minorities with respect to their effective exercise of the electoral franchise. That presumes that there are groups in America who have more than their fair share of representation. Should the progression of voting rights not end in some point some retrogression, one would logically think that there would be a point when minorities had more leverage, as well. And would that mean then that the Beers [sic] case would still stand? Or where do we get this point of balance?
When do we finally say: America is where we need to go; we are assimilated; we're all one people; we love each other; we work together; and we don't see each other in the eyes of being a member of a group, but instead individual Americans with individual sovereignty; and the people the sovereign?
Thank you, Mr. Chairman.
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Mr. CHABOT. Thank you. Would the gentleman yield for a moment, while he still has 30 seconds? The gentleman referred to the vote in Ohio last night. I would just note that the plan that failed by 70 to 30—70 percent of the people voted against it; 30 for it—would have been what the gentleman indicated: two retired judges would pick three other people, and they would pick the district lines.
There was a sense of this same thing that the Governor of California, Governor Schwarzenegger, failed at passing out in California last night, as well. So it was a trend last night, at least in two of the two States that it was up in.
We have a series of three votes, it's my understanding, on the floor. So we will go into recess at this time. And I'd ask Members to come back as quickly as we can, and we'll begin right after the three votes. And if you'll bear with us, we're probably looking at a half hour or so before we'll be back. We're in recess.
[Recess, 2:37 p.m.-3:17 p.m.]
Mr. CHABOT. The Committee will come back to order.
Members will be arriving as they get back from the votes on the floor. Without objection, all Members will have 5 legislative days to submit additional materials for the record.
And I'd now like to introduce our very distinguished panel of witnesses here this afternoon. Our first witness will be Mr. Theodore Shaw. Mr. Shaw currently serves as the Director-Counsel and President of the NAACP Legal Defense and Educational Fund. Mr. Shaw joined the NAACP in 1982, directing LDF's education docket and litigating school desegregation, capital punishment, and other civil rights cases throughout the country.
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In 1987, he established LDF's Western Regional Office in Los Angeles, and served as the Western Regional Counsel. In 1990, Mr. Shaw left LDF to join the University of Michigan Law School faculty, where he taught constitutional law, civil procedure, and civil rights. During that time, Mr. Shaw played a key role in establishing the law school's admission policy.
Mr. Shaw rejoined LDF as Associate Director-Counsel in 1993. In 2003, Mr. Shaw was the lead counsel in a coalition that represented African-American and Latino student intervenors in the University of Michigan undergraduate affirmative action case, Gratz, et al. v. Bollinger, et al., in which the Supreme Court held in favor of diversity as a compelling State interest. Mr. Shaw also serves as an adjunct professor of law at Columbia Law School. We welcome you here this afternoon, Mr. Shaw.
Our second witness will be Ms. Anne Lewis. Ms. Lewis currently serves as a partner at the Georgia law firm Strickland Brockington Lewis LLP, where her practice focuses on regulatory matters involving public utilities before the Georgia Public Utility Commission.
In addition, Ms. Lewis represents clients in various public policy and legislative matters, including redistricting. During the 2000 redistricting cycle, Ms. Lewis, together with her partner Frank Strickland, represented four intervenors in the State of Georgia's section 5 preclearance case, Georgia v. Ashcroft.
Ms. Lewis also represented the plaintiffs in the Fulton County School Board redistricting case, Markham v. Fulton County School Board; and served as counsel to former Speaker Newt Gingrich and Congressman John Lewis, amicus curiae in the 1990 Georgia redistricting case, Johnson v. Miller.
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Ms. Lewis is a certified mediator, and is a volunteer with Hands on Atlanta and a truancy intervention program. And we welcome you here this afternoon, Ms. Lewis.
Our third witness will be Georgia State Representative Tyrone Brooks. Congressman Brooks currently represents the 47th District in the State of Georgia, as well as serves as the President of the Georgia Association of Black Elected Officials.
Mr. Brooks has a long and distinguished career as a civil and human rights activist, beginning his career at the Southern Christian Leadership Conference, SCLC, where he worked as a volunteer and was eventually hired by Dr. Martin Luther King, Jr.
During his 19 years at the SCLC, Representative Brooks held several positions, including National Communications Director, National Field Director, and Special Assistant to the President; and served under three very distinguished Presidents, Dr. Martin Luther King, Jr., the late Rev. Ralph Abernathy, and Dr. Joseph E. Lowery.
Representative Brooks has continued his efforts in the State legislature, where he advocates for legislation ending discrimination, racism, illiteracy, and injustice. Representative Brooks was co-author of the ''max black plan,'' used to create more majority-Black districts, which resulted in the election of 3 African-Americans to Congress and 44 to seats in the general assembly.
Representative Brooks is a member of the Georgia Black Legislative Caucus, and is co-founder of the Coalition for the People's Agenda. He is also active in many other organizations dedicated to equality and justice. We welcome you this afternoon, Mr. Brooks.
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And our fourth and final witness will be Mr. Laughlin McDonald, current Director of the ACLU Voting Rights Project. As Director, Mr. McDonald has played a leading role in eradicating discriminatory election practices and protecting the progress made by racial minorities in voting since the passage of the original Voting Rights Act back in 1965.
In 1972, Mr. McDonald joined the Southern Regional office of the ACLU as Executive Director, and won some of the most precedent-setting cases, including those that secured the ''one person, one vote'' principle, established the right of women to serve on juries, and ended discriminatory at-large elections.
Prior to his work at the ACLU, Mr. McDonald served on the faculty of the University of North Carolina Law School and in private practice. We welcome you back again, Mr. McDonald.
For those of you who may not have testified before the Committee, I'll just familiarize you with the 5-minute rule. You have 5 minutes to testify. We have a lighting system. There are two boxes there in front of you. For 4 minutes, the green light will be on; 1 minute, it will be yellow, and let you know that it's time to wrap up; but when the red light comes on, your time is up. And we'd appreciate your trying to stay within that time frame as much as possible.
I would also encourage my colleagues, who are also limited by the 5-minute rule, to try to keep as close to the 5 minutes as we can, because we have another hearing on the Voting Rights Act that's been scheduled for 4. We'll probably have to push that back a little bit, but we have another distinguished panel to testify. We don't want to keep them waiting too long. So if we can stay within the 5 minutes, that would be much appreciated.
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It's also the practice of this Committee to swear in witnesses prior to their testimony, so we'd ask you all to please stand and raise your right hands.
[Witnesses sworn.]
Mr. CHABOT. Thank you. Each witness has indicated in the affirmative.
We're now ready to hear from the panel. And Mr. Shaw, if you're ready, we'll hear you for 5 minutes. And you'll have to turn on the mike there. Thank you very much.
TESTIMONY OF THEODORE M. SHAW, PRESIDENT AND DIRECTOR-COUNSEL, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Mr. SHAW. Thank you, Mr. Chairman. Members of the Committee and distinguished Representatives, counsel, as President and Director-Counsel of the NAACP Legal Defense and Educational Fund, I welcome the opportunity to testify before the Committee regarding the judicial interpretation of the retrogression standard as it relates to the renewal of section 5 of the Voting Rights Act.
The Voting Rights Act is widely regarded as one of the greatest achievements in the Civil Rights Movement. It reflects Congress' meaningful and lasting embrace of equal protection of the law and equal political opportunity.
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The context for the current renewal debate is one in which LDF's perspective reveals two truths that shape the current debate: First, we must recognize that we've made a great deal of progress, a lot of change for the better, since 1965, due in large part to the existence of strong, effective civil rights laws, such as the Voting Rights Act. Second—and LDF's experience bears this out—any accurate description of the situation within covered jurisdictions illustrates that in significant respects, a great deal remains to be done, if we are to achieve the political equality to which the Reconstruction constitutional amendments unequivocally commit us.
The ability for minority communities to elect candidates of their choice has been at the core of the Voting Rights Act. Typically, a section 5 assessment of the ability to elect occurs in the context characterized by, one, the national preference for single-member electoral districts and, two, the continued existence of racially-polarized voting patterns—and that's really key; I will underscore that, and come back to that, if need be, again and again in the few minutes I have—and three, the persistent efforts to dilute minority votes by depriving their communities of the benefits of fairly drawn redistricting plans.
Against this backdrop, and in the wake of the Supreme Court's reconceptualization of section 5 preclearance in Georgia v. Ashcroft, I wish to direct the remainder of my remarks to explaining several of the reasons why Congress should act to restore protection for the ability of minority voters to elect candidates of their choice as a touchstone of retrogression analysis.
Let me turn then to judicial development of the retrogression standard, Beer v. U.S., and then talk about Georgia v. Ashcroft. In Beer v. United States, the Supreme Court held that section 5 required the denial of preclearance to changes in voting practices and procedures if ''the ability of minority groups to elect their choices to office is diminished.'' The relatively clear standard established in Beer, accepted without modification by Congress when it amended section 2 and extended section 5 in 1982, was significantly weakened by Georgia v. Ashcroft in 2003.
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According to the Supreme Court's majority opinion, as compared to the benchmark 1997 plan, the post-2000 Census enactment ''unpacked'' the most heavily concentrated majority-minority districts in the benchmark plan and created a number of new ''influence'' districts.
The three-judge court found the plan to be retrogressive. The Supreme Court reversed, in an opinion by Justice O'Connor which reconceptualized the test to allow jurisdictions to choose to protect the ability to elect or, in the alternative, to pursue an increase in minority influence by dispersing voters, even if existing opportunities to elect are sacrificed.
We believe that there is a need for clarification of the retrogression standard. There are several reasons that Congress ought to engage in this clarification and restore the emphasis on protecting minority voters' ability to elect.
One is that Georgia v. Ashcroft permits tangible minority gains to be sacrificed. Contrary to the purpose of section 5, the new retrogression standard allows a jurisdiction to decide whether it will protect hard-won gains and opportunities to elect. It permits a jurisdiction to choose among different theories of representation and introduces a substantial uncertainty for minority communities into a statute that was specifically intended to block persistent and shifting efforts to limit the effectiveness of minority political participation.
The benefit of minority communities choosing the candidates who represent them is clear to those communities, as it was to any other community. And the Nation's commitment to representative democracy is at issue.
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Two, we believe that Georgia v. Ashcroft invites and shields vote dilution. ''Cracking'' and ''unpacking'' could be a problem; but clearly, this invites the ''cracking of minority districts.'' We believe the standard is difficult to administer. We don't know what ''influence districts'' really mean. And we also believe that it undermines the section 5 benchmark analysis.
My testimony is more full, and addresses this and it's submitted in writing. Five minutes doesn't allow me to talk about this issue in all the detail. I hope that we can do so in some questions and answers.
At bottom, Mr. Chairman and Members of the Committee, I think that we have to remember that section 5 is—it was a standard that we could administer, under Beer. And we need to restore—not only extend, but restore—the Voting Rights Act and section 5 to full strength. I invite questions.
[The prepared statement of Mr. Shaw follows:]
PREPARED STATEMENT OF THEODORE M. SHAW
[Note: Image(s) not available in this format. See PDF version of this file.]
Mr. CHABOT. Okay. Thank you very much. All the written statements will be made part of the record. And if you don't get into everything during the question period, we'll probably get into those items. You may not have had time. Thank you very much for your testimony.
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Ms. Lewis, you're recognized for 5 minutes.
TESTIMONY OF ANNE W. LEWIS, ATTORNEY, STRICKLAND BROCKINGTON LEWIS LLP
Ms. LEWIS. Thank you, Mr. Chairman and Members of the Committee. I appreciate this opportunity to provide testimony regarding the important issue of the renewal of section 5 of the Voting Rights Act. I believe that it's imperative that that section be renewed, and that it is also imperative that in renewing that section Congress give great consideration to a revision of the Ashcroft test, so that we go back to the former standard of judging whether or not there was retrogression.
My practice is primarily devoted to redistricting, and that's my experience with respect to section 5 generally. During the 1990's, I represented a group of citizens in a redistricting case called Jones v. Miller. And then I did have the distinct pleasure of, along with my co-counsel, representing Congressman Lewis and Former Speaker Newt Gingrich, in the case of Abrams v. Johnson.
In the 2000 redistricting cycle, I served as counsel for four minority citizens, two Democrats and two Republicans, in the case of Georgia v. Ashcroft. In that case, the voters we represented opposed the congressional plans and the State legislative redistricting plans, on the ground that the plans were all retrogressive.
The district court precleared the congressional and state house plans, but denied preclearance of the State senate plan. As you know, the Supreme Court reversed and remanded and sent back the case to the district court, and in the process redefined ''retrogression'' and added an additional method by which a jurisdiction might prove there was no retrogressive effect with respect to minority voting rights.
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While the district court was in the process of attempting to apply the Supreme Court's instructions—which, I will suggest to you, would be basically impossible to do—we were also litigating the case of Larios v. Cox in Georgia, in which we represented a group of 29 Georgia voters who contended that the State legislative and congressional plans violated the constitutional guarantee of one person, one vote.
Because we were ultimately successful in that case with respect to the State and legislative redistricting plans, and the senate plan at issue in Ashcroft was one of those plans, the Ashcroft district court decided that the case was moot. And so ultimately, that district court never applied the standard that had been issued by the Supreme Court.
In my testimony, I have described the evolution of the judicial interpretation of section 5 through the years since the last renewal of the Voting Rights Act. I want to focus in my remaining couple of minutes on the fact that in the Ashcroft case, the Court agreed with the State's new theory that a jurisdiction could show that, in addition to the traditional form of retrogression which asked the question, ''Is the minority community still able to elect the candidate of choice?'', retrogression, or a lack thereof, could also be proven by answering the question, ''Is the minority group's opportunity to participate in the political process diminished?''
I'll suggest to you that, both from the perspective of an attorney practicing in this area and, more importantly, from the perspective of a voting rights issue, this standard is impossible to apply.
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First, the Supreme Court asks, in determining whether or not a minority group had the opportunity to participate in the political process, one might examine factors including the likelihood that candidates selected without decisive minority support would be willing to take minority groups' interests into account; and the question of whether it's better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters. I suggest to you that would be almost impossible to apply and to prove with respect to section 5.
In looking at the issue of influence districts, the Court also concluded that a section 5 reviewer might look at ''the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts,'' and also whether the representatives elected from the very districts created and protected by the Voting Rights Act supported the redistricting plan.
Well, as you all know, there is a measure of support for legislative acts that varies; and the motivation varies for that support. And so I think, again, that would be a very subjective inquiry, and impossible to apply, and detrimental to the very purpose of section 5.
I think that, in addition to the fact that it's difficult to apply those, what came from Ashcroft was that a very real diminishment of voting rights, minority voting rights, was seen in the very next elections. In the 44th Georgia House of Representatives District, Billy McKinney, a longtime incumbent, lost to a relatively unknown White challenger in the primary. Similarly, in a senate district which we had challenged in the Ashcroft case, there was the senate majority leader who was defeated by a White challenger in a highly polarized election.
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I firmly believe that section 5 remains an important component of election law, and should be renewed in some form. However, the alternative test announced in Ashcroft should be eliminated. From a practical perspective, it's impossible to apply; and from a voting rights perspective, it's a disaster. Thank you.
[The prepared statement of Ms. Lewis follows:]
PREPARED STATEMENT OF ANNE W. LEWIS
Mr. Chairman and members of the committee, thank you for this opportunity to provide testimony regarding the very important issue of renewal of certain sections of the Voting Rights Act. While I recognize that the question of renewal extends to Section 5, 6 and 8, my focus today is on Section 5 and to some extent its interplay with Section 2, as my experience with the Voting Rights Act has involved those two Sections primarily, in the context of redistricting. In my testimony, I would like to cover four areas. First, I will provide a short description of the important role the Voting Rights Act has served in bringing about increased fairness in the composition of election districts at every level of government in Georgia, and hopefully dispel a couple of pernicious myths that have developed regarding the Act's enforcement. Second, I will address the Supreme Court's decision in Ashcroft and why the holding in this case threatens to result in districts that are less fair for minority voters. Third, I will discuss why a failure to renew Section 5 will result in election districts at most levels of government that will not only be less fair for minorities, but for most other segments of our electorate is well. Fourth and finally, I will touch on the need to consider which jurisdictions and what conduct is covered by Section 5.
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By way of background, I am an attorney in Atlanta, Georgia with the law firm of Strickland Brockington Lewis LLP. During the 1990s redistricting cycle, I was one of the attorneys representing a group of citizens in the case called Jones v. Miller. In that case, the citizens sought court intervention in the redistricting process when the State of Georgia's 1991 redistricting plans were not precleared. Later in that decade, I served as one of the attorneys to former speaker Newt Gingrich and Congressman John Lewis in the case of Abrams v. Johnson, which later became known as Johnson v. Miller. In that case, my co-counsel and I had the distinct and rather rare privilege of representing both Congressman Gingrich and Congressman Lewis.
In the 2000 redistricting cycle, I served as one of the counsel for four minority citizens—two Republicans and two Democrats—in the case of Georgia v. Ashcroft, in which the State of Georgia sought Section 5 preclearance from the District Court for the District of Columbia. The voters we represented opposed Georgia's Congressional and state legislative redistricting plans on the ground that the plans were retrogressive. The District Court precleared the Congressional and state House plans but denied preclearance of the state Senateq plan. As you know, the case went to the Supreme Court and was reversed and remanded. In essence, the Supreme Court added an additional method by which a jurisdiction might prove there was no retrogression with respect to minority voting rights. Although retrogression had always been measured by whether the new redistricting plan so decreased minority voting strength in majority-minority districts that the plan resulted in a backsliding in minority voting rights, in Ashcroft, the Supreme Court determined that retrogression might also be measured by whether, despite the decrease in minority voting strength in majority-minority districts, there were additional ''influence'' or ''coalitional'' districts formed sufficient to compensate for the losses in minority voting strength in majority-minority districts. In reversing and remanding, the Supreme Court directed the District Court to consider whether the State, although not meeting the traditional test of retrogression, had, in fact, met the new test.
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While the District Court was in the process of attempting to apply the Supreme Court's instructions—including whether to hold a new trial, what new discovery was required, what new evidence would be allowed and the like—we were litigating the case of Larios v. Cox in Georgia, in which we represented a group of 29 voters who contended that the state legislative and Congressional plans violated the constitutional guarantee of one person, one vote. We were ultimately successful on the state legislative plans, and they were redrawn by the federal court; that decision was summarily affirmed by the Supreme Court. Subsequently, the District Court in Ashcroft dismissed that case, and so it never applied the new Section 5 test of Ashcroft. As I will discuss later, it is both a mystery to me as to how that test would have been applied and how it would not ultimately result in a retrogression in minority voting rights—the very evil that Section 5 is designed to remedy.
While Ashcroft muddies the Section 5 waters, I firmly believe that Section 5 remains an important component of election law and should be renewed in some form. In the two decades since the Voting Rights Act was last amended and renewed in 1982, a revolution has occurred in American election law that has resulted in representation that more accurately reflects the composition of the American electorate than any previous time in our history. The Voting Rights Act has been an important factor in that progress and remains necessary today.
A. THE ROLE OF THE VOTING RIGHTS ACT IN BRINGING ABOUT FAIR DISTRICTS AND THE ROLE OF THE DEPARTMENT OF JUSTICE IN ADMINISTERING SECTION 5
In 1982, when the Voting Rights Act was last amended and renewed, America's congressional and legislative districts, as well as those in many of its local jurisdictions, were gerrymandered in a fashion that denied fair representation to most African-Americans and other ethnic minorities; oddly enough, the same gerrymandering tactics denied fair representation to a majority of white (non-Hispanic) voters. These gerrymanders would have been permanent, absent a case-by-case judicial remedy or a broad-scale legislative remedy. In amending the Voting Rights Act in 1982, Congress provided that legislative remedy.
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By 1994, little more than a decade later, African-Americans and Hispanics in Congress had more than doubled, with almost all of these representatives coming from majority-minority districts. Those districts were drawn for one reason: because the Voting Rights Act required them to be.
However, the extension and application of the Voting Rights Act has not simply made election districts fairer for minority voters. The Act has also made the election districts fairer for all voters. For instance, the current national congressional map more accurately reflects the votes cast for Congress than any congressional map in the last four decades. Likewise, the Georgia legislative map more accurately reflects the votes cast for the Georgia General Assembly than any map in the last three decades. Drawing fair districts for minority voters has a complementary effect of making it more difficult to gerrymander other voters. When the drawing of majority-minority districts is coupled with other neutral districting criteria, such as a strict one-person one-vote requirement and geographic compactness, gerrymandering becomes much more difficult.
Despite the great strides that have been made under the Voting Rights Act, particularly those that have resulted from the application of Section 5, the need for the Section remains, as the political will to gerrymander minority communities is still prevalent in most of the jurisdictions covered by Section 5, and, perhaps, in some jurisdictions that are not currently covered by Section 5 but should be. Perhaps the reason for the gerrymandering has changed to some degree, in that gerrymandering minority communities may be less the result of racial animus than the result of a political effort to help incumbents retain their power. However, the effect is the same—a lessening of voting strength in minority communities as incumbents try to hold onto power.
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As Judge Kozinski noted in Garza vs. County of Los Angeles, ''the record before us strongly suggests that political gerrymandering tends to strengthen the grip of incumbents at the expense of emerging minority communities. Where, as here, the record shows that ethnic or racial communities were split to assure a safe seat for an incumbent, there is a strong inference—indeed a presumption—that this was a result of intentional discrimination.'' Judge Kozinski drew an analogy to housing discrimination to illustrate his point that whether the action was motivated by racial animus or not, the intent was still to discriminate against minorities. His example: ''Assume you are an Anglo homeowner who lives in an all-white neighborhood. Suppose, also, that you harbor no ill feelings toward minorities. Suppose further, however, that some of your neighbors persuade you that having an integrated neighborhood would lower property values and that you stand to lose a lot of money on your home. On the basis of that belief, you join a pact not to sell your house to minorities. Have you engaged in intentional racial and ethnic discrimination? Of course you have. Your personal feelings towards minorities don't matter; what matters is that you intentionally took actions calculated to keep them out of your neighborhood.''
While the positive results that have come from Section 5 cannot be doubted, critics have alleged that the increase in majority-minority districts that occurred in the 1990 round of redistricting occurred were not the natural result of the application of Section 5 but resulted from an improper application of the Section by the Department of Justice. Those critics contend that the increase in majority-minority districts occurred because the Department of Justice (1) incorporated Section 2 into the Section 5 analysis and (2) adopted a commensurate policy of proportional representation or minority maximization. Neither of these allegations is true. During the 1990 redistricting cycle the Department of Justice issued only one objection letter based on the incorporation of Section 2 into the Section 5 analysis. That objection letter was issued to the Bossier Parish school board, and the error was corrected by the Supreme Court in Bossier I.
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Instead, the overwhelming majority of objection letters issued during the 1990 redistricting cycle was directed at violations of the purpose prong of Section 5 and cited the Garza case. Garza required that during the redistricting process, the jurisdiction had been made aware that the redistricting map ultimately adopted would discriminate against a minority community. Opponents had to take the criteria enunciated by the jurisdiction and construct an alternative redistricting map which (1) had a lower population deviation than the plan's, (2) better met the jurisdiction's stated criteria and (3) created an additional majority-minority district(s). Discriminatory intent could be shown by eliminating any excuse for not drawing the majority-minority district (other than the protection of non-Hispanic white incumbents).
Jurisdictions therefore were faced with a choice: they could subordinate the personal political demands of their white incumbents, adhere strictly to stated criteria and construct a geographically compact majority-minority district or they could abandon their stated criteria and draw a geographically tortured configuration of the majority-minority district in an effort to ameliorate the negative political effects on non-Hispanic white incumbents. Most jurisdictions, including Georgia, unfortunately chose the latter.
As a result, advocates for minority voters, as well as other participants in the redistricting process, could then use the stated criteria, or, often, the absence of any criteria, to determine if the construction of even more majority-minority districts was possible. Typically, such was possible, and the plans would not be precleared. In trying to remedy the situation, a jurisdiction would draw even more majority-minority districts but would still typically draw unnecessarily tortured configurations of the majority-minority districts in order to minimize the negative political effects on non-Hispanic white incumbents.
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Once the gerrymandering tool of refusing to draw naturally occurring geographically compact majority-minority districts was eliminated by the enforcement of the Voting Rights Act, more cartographically obvious methods had to be employed to draw more majority-minority districts. In his dissent in the first Shaw decision, Justice Stevens correctly noted that the bizarre shapes of the districts were caused by political gerrymandering and not by racial gerrymandering.
The state House and Senate plans produced by the special master in the Georgia one person, one vote case—Larios—illustrate that the convoluted and bizarre shapes previously employed in Georgia's congressional and legislative redistricting maps were completely unnecessary in order to draw majority-minority districts. The special master's map did not retrogress, either in the number of majority-minority districts or the minority voting strength in those districts. However, these districts were far more compact than the districts that had been used in Georgia since 1992, while still complying with traditional redistricting criteria. As a result, the special master's map offers the protection of the Voting Rights Act while, at the same time, more accurately reflects the political preferences of all of the voters than any map of the Georgia General Assembly in the past 30 years.
B. THE ASHCROFT DECISION: WHAT DOES IT MEAN FOR THE CONTINUED VITALITY OF SECTION 5?
Although the Supreme Court in Bossier II ultimately disagreed with the application of the Garza standard because the Court decided that Section 5 purpose prong is different from the ''purpose'' of the 14th Amendment, as it is limited to ''retrogressive'' intent, i.e., discriminatory intent vs. retrogressive intent. Although after Bossier II, it did not appear that our clients prove the required ''retrogressive purpose'' without proving the requisite effect, clearly they could have shown the discriminatory intent described by Judge Kozinski in Garza in the 2002 redistricting map for the Georgia General Asssembly. Through a combination of a reduction of minority voting strength in existing majority-minority districts, multimember districts, and bizarrely drawn districts, non-Hispanic white Democrats attempted to maintain their control over the Georgia General Assembly at the expense of minority voters and Georgia's Republican voters. This was the basic motivation that caused the General Assembly to produce the redistricting plans that were litigated in Georgia v. Ashcroft.
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Although proving intent alone would not be sufficient, we did not suspect that we would have difficulty proving the requisite effect under existing case law—until the Supreme Court changed the definition of retrogression and the effects test in Ashcroft. As noted previously, we represented a bipartisan group of four minority citizens who intervened in that case. Our principal argument was that the Voting Rights Act was not intended to protect the incumbents of any political party or, for that matter, the incumbents of any particular race. Instead, the purpose of the Voting Rights Act is to protect the rights of voters in minority racial and language communities, who have historically been denied the opportunity to elect candidates of their choice. By reducing the minority voting strength in existing majority-minority districts to a level at which the minority community no longer constituted majority in those districts or to a level at which the minority community was barely a majority, there was clearly an effect of backsliding or retrogression in the rights of minority voters to elect candidates of their choice. This occurred in two basic ways. First, the most immediate and identifiable way: the minority voting strength in the districts was so significantly reduced that the minority candidate of choice would lose.
The other is a type of retrogression that is more subtle and more dangerous. By judging retrogression primarily from the perspective of whether the incumbent in the majority-minority district thinks the district is satisfactory, the focus is on the incumbent's desires, rather than the rights of the voters. Minority incumbents share many of the same institutional and financial benefits of incumbency that non-minority incumbents do. That fact allows minority incumbents to win reelection in districts with lower minority voting strength than would be insufficient to elect any other minority candidate of choice once the incumbent leaves office. While such districts might be sufficient for minority incumbents, they fail to protect minority voters who will be left in the same situation that existed prior to 1982 once the incumbent leaves.
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Oddly enough, when the four minority voters we represented attempted to intervene, the State vigorously objected to their participation in the case. The State argued that the Department of Justice would adequately protect our clients' interests, and therefore, they had no place in the case. We responded that it certainly seemed that minority voters would have an interest in the Section 5 preclearance of redistricting plans and that had the State not taken the rare route of litigation to obtain preclearance, we would have had the right to file objection letters with the Department of Justice. If the State's position were to be adopted, then a Section 5 jurisdiction could simply squelch any minority opposition to Section 5 preclearance by filing a declaratory judgment action in the District Court for the District of Columbia and leave minority voters out in the cold. While the District Court struggled somewhat with the issue of intervention, the Supreme Court did not. In its appeal, the State again raised the question of whether minority voters should be allowed to intervene. The Supreme Court devoted one paragraph of its opinion to state unequivocally that such intervention was appropriate.
The rest of the Supreme Court's opinion is much more dramatic, as it changed both the definition of retrogression and the effects test. After the District Court precleared the House and Congressional plans but refused to preclear the Senate plan, the State appealed to the Supreme Court. By a five to four margin, the Court agreed with the State's new theory that a jurisdiction could show that there had been no retrogression in one of two ways. The first is the traditional method of maintaining both the number of majority-minority districts as well as effective minority voting strength in those districts, with the relevant question being, ''Is the minority community still able to elect a candidate of choice?''
The second is a new method whereby the number of majority-minority districts is reduced and the minority voting strength in other majority-minority districts is also reduced, with the relevant question being, ''Is the ''minority group's opportunity to participate in the political process'' diminished?'' The Court concluded that there were several measuring sticks for answering that question, all of them, in my opinion, extremely vague and, in practice, impossible to apply.
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The first measuring stick focuses on whether additional ''influence'' or ''coalitional'' districts are created in which the minority community may or may not be capable of electing a candidate of choice but can play a ''role'' in the electoral process. The Court concluded: ''Thus, a court must examine whether a new plan adds or subtracts ''influence districts''—where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process.'' Georgia v. Ashcroft, 539 U.S. 461, 482 (2003). To determine whether there was such a role, the Court offered that one might examine various vague factors, including:
''the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account;'' and
whether it ''is better to risk having fewer minority representatives in order to achieve greater overall representation of a minority group by increasing the number of representatives sympathetic to the interests of minority voters.''
Ashcroft, 539 U.S. at 482–83.
In addition to examining influence districts, the Court also concluded that Section 5 reviewer might look at ''the comparative position of legislative leadership, influence, and power for representatives of the benchmark majority-minority districts'' and ''whether the representatives elected from the very districts created and protected by the Voting Rights Act support the new districting plan.'' Ashcroft, 539 U.S. at 483–84.
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In addition to the fact that any of those inquiries are extremely subjective and appear to focus on incumbents rather than voters, the more distressing fact is that the
decision of the Ashcroft court had real and immediate retrogressive effects. In the 44th Georgia House of Representatives district, Billy McKinney, a long-time incumbent African-American legislator and the father of one of your colleagues, Congresswoman Cynthia McKinney, saw his African-American voting strength in the precleared plan reduced by approximately 17 percentage points. In the next Democratic primary, he faced a white challenger, a relative unknown, and was defeated.
Similarly, in a Senate district in Augusta, the minority voting strength was reduced to a level at which it was doubtful that minority voters still constituted a majority of the actual electorate in the district and could re-elect the African-American Senator; we objected to the district in the Ashcroft case on those very grounds. The Department of Justice did not. Subsequently, the Senator, who was the Majority Leader in the Georgia Senate, lost his seat to a white challenger in a highly racially polarized election.
Because the 2002 legislative map was only used for one election and all of the African-American incumbents in the weaker minority districts ran for reelection, there was no opportunity to see actual retrogressive effects due to retirement of minority incumbents as I described earlier. However, the immediate loss of minority incumbents to white challengers as a direct result of the decision in Ashcroft indicates that if the Supreme Court's interpretation of Congressional intent with respect to Section 5 is allowed to continue without modification, then I believe we will see a steady reduction of African-American officeholders at all levels of American government as current African-American incumbents retire from office.
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With respect to the Congressional Districts, the voters we represented objected to the plan; the Department of Justice did not. Two highly racially polarized elections conducted in the congressional districts—which were constructed in a manner similar to many of the districts in the state legislative plans—illustrate the factual fallacy of the Ashcroft decision. The 12th Congressional District was touted by the State as a district which could be won by an African-American, despite the fact that it was not a majority-minority district. In 2002, the African-American candidate was defeated by a white candidate in the general election in a racially polarized contest. In 2004, in that same district, an African-American candidate was defeated by white candidate in the primary.
In 2002, Congresswoman Cynthia McKinney saw the minority voting strength in her district diminished. She was defeated in one of the most highly racially polarized elections in Georgia history, even though her opponent in the Democratic primary was also an African-American.
C. WHY FAIR REDISTRICTING REQUIRES RENEWAL OF SECTION 5
The goal of fair redistricting, and indeed of fair elections in general, should be that the political distribution of the representatives is within acceptable margins, approximately similar to the political preferences expressed by the voters in the election. These representatives can and should be elected from geographically compact communities of interest, including minority racial and language communities of interest. Minority racial and language communities have historically been ignored or worse actively fractured in order to prevent these communities from electing candidates of choice. For far too long it has been falsely asserted that majority-minority districts and geographically compact districts that accurately reflect the jurisdiction's various communities of interest are antithetical. The redistricting plan of the special master in the Larios case illustrates that this is not true. In fact, providing fair representation to minority racial and language communities is complementary and a critical part of producing a fair redistricting plan.
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The 2002 redistricting maps in Georgia prove what will happen if Section 5 of the Voting Rights Act is not renewed and the Ashcroft decision not modified. Minority racial and language communities will be fractured in order to protect white incumbents. The slices may be small at first but it will be a death by a thousand cuts. A few minority officeholders will be defeated, even more will retire and not be replaced. This loss of officeholders will make it even more difficult to prevent further fracturing of minority racial and language communities, which will result in an ultimate downward spiral that minimizes the number of minority officeholders at all levels of American government. To allow this result is particularly unacceptable when one realizes that preventing it—as illustrated in the plans of the special master in the Larios case—does not have to and should not conflict with the other basic precepts of fair redistricting.
D. WHAT SHOULD THE SCOPE OF SECTION 5 RENEWAL BE?
While I do not pretend to have an answer to the question what the scope of renewal should be, I think, as I am sure that you have discussed at length, that the two important issues are which jurisdictions should be covered and what conduct should be covered. I believe that it is clearly the case that since the measuring time of November 1, 1964, the jurisdictions that should be covered may have changed. One concept is to renew only those that are covered, another is to cover all jurisdictions and a third is to reevaluate what constitutes a jurisdiction that should be covered. Only covering those that are covered now ignores the fact that times have changed. Some still probably need to be covered, others probably do not. Covering all jurisdictions raises constitutional questions concerning Congress' power to intrude so drastically upon states' rights without a demonstrated need for the same. Re-evaluating the jurisdictions that should be covered is the best and, naturally, the most onerous solution.
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An easier question is what should be covered. While no one would debate that redistricting decisions should be covered, it seems less plausible that a decision to move a polling place in a voting precinct from one public building to another or to hold a special election when one is required should be the subject of preclearance.
I would like to thank the committee for its consideration of my comments. I will attempt to answer your questions, and I would request, given the constraints on time, that I be allowed to revise and extend my remarks where appropriate.
Mr. CHABOT. Thank you very much.
Representative Brooks, you're recognized for 5 minutes.
TESTIMONY OF THE HONORABLE TYRONE L. BROOKS, SR., MEMBER, GEORGIA GENERAL ASSEMBLY, AND PRESIDENT, GEORGIA ASSOCIATION OF BLACK ELECTED OFFICIALS
Mr. BROOKS. Thank you, Mr. Chairman. And certainly, we want to thank Chairman Sensenbrenner for the invitation to appear today to offer some advice as to how you should proceed in addressing the issue of section 5 and renewal of the Voting Rights Act.
You do have my written testimony, so I will not belabor you with going through that. I will point out that in my testimony I do mention one of my colleagues, Representative Bob Holmes, who preceded me in the House, along with David Scott and Sanford Bishop, my colleagues from Georgia.
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I will say to you that my life has been one of working in civil rights and voting rights, and the introduction that you gave me indicated that. But I want to say to you today that as we come back to this great, august body to talk about saving the Voting Rights Act in some respect, we have to remember that in this country where African-Americans may comprise between 12 and 15 percent of the U.S. population, we're still less than 2 percent of the body politic. And in my home State of Georgia, where we are 30 percent of the population, we comprise less than 6 percent of the body politic, in terms of elected officials.
So that tells you that we need these protections afforded to us under section 5. As long as we live in a society where we have racially-polarized voting, it is imperative that we have the protections of section 5.
In my State of Georgia, where we've made an awful lot of progress, we continue to make progress, without those protections, we know that we will have retrogression and dilution.
I'm just happy to know, as we come today as a panel, that there is great sentiment among you to consider our testimony. But I want to say to you that, as last week, Congressman Conyers, as we funeralized and memorialized Rosa Parks for her great contributions and touching off the modern-day Civil Rights revolution, the greatest tribute we could pay to Rosa Parks is to extend the Voting Rights Act. Because she was not sitting down just to be on the front of the bus; she was sitting down to vote. She had tried to register to vote on numerous occasions in Montgomery, and been denied. So when she sat down on the front of the bus, it was a message to America, ''I want to cast a ballot. I want to be a registered voter.''
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So as we come today before you as a panel, hopefully, at the end of the day, you will understand the importance of extending the Voting Rights Act and section 5. The most important law that this Congress has ever adopted, since our Nation was founded, since the Emancipation Proclamation, is the 1965 Voting Rights Act.
Section 5 is the meat of the act. We need those protections. We must have those protections, unless we want America to live in a society where we would have a legal apartheid in our political system. We can't go back. We must go forward.
So my testimony today will speak to the issue of Ashcroft and Georgia. But also, it will speak to the need for us to be sensitive to the idea of inclusion in the body politic, by allowing for the creation of majority-Black districts. We have to have that protection. Influence districts can never be the substitute for majority-Black districts, can never be.
So at the end of the day, we hope and pray that this Committee will understand the importance of extension, but also the protections afforded to us under section 5. Thank you, Mr. Chairman.
[The prepared statement of Mr. Brooks follows:]
PREPARED STATEMENT OF THE HONORABLE TYRONE L. BROOKS, SR.
I want to thank the committee for giving me an opportunity to express my views on the important issues facing the Congress as it considers extending the special provisions of the Voting Rights Act scheduled to expire in 2007. As a 25 year member of the Georgia legislature (House District 63) that passed the redistricting plans that were the subject of the Georgia v. Ashcroft litigation, I am especially pleased to address and try to clear up some misconceptions about the role of the black legislative caucus in the enactment of those plans.
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Much progress has indeed been made in recent time in minority voting rights and office holding in my state, and in the South, but it has been made in large measure because of the existence of Section 5 and the other provisions of the Voting Rights Act. Had there been no federal intervention in the voting and redistricting process, it is unlikely that most southern states would have ceased their practices of denying and diluting the black vote. The fact that Section 5 has been so successful is one of the arguments in favor of its extension, not its demise.
As important, the temptation for manipulation of the law in ways that will disadvantage minority voters is as great and irresistible today as it was in 1982, when Congress last extended Section 5. Removal of the federal oversight that Section 5 provides would doubtlessly result in a significant erosion in minority voting rights. That is evident, I think, from the fact that Georgia has received a total of 80 objections under Section 5 since the last extension of the preclearance requirement. A list of the state's Section 5 objections is attached.
And just this year, the state enacted a photo ID requirement for voting in person that will without doubt deter or prevent a disproportionate number of minorities from voting, as well as the elderly and the disabled. It is not only difficult for many people to get a photo ID, but it costs $20 and is in essence a fee for voting. Fortunately, the federal court recently issued an injunction prohibiting use of the photo ID requirement, which it said was in the nature of a poll tax.
Many people have asked me, ''what new strategies and schemes do you think the states will come up with to suppress the minority vote?'' My state didn't bother to come up with anything new, but reenacted one of the most blatant measures adopted after Reconstruction to suppress the black vote—the poll tax. I want to add that there was no evidence whatever presented to the legislature of the need for a photo ID requirement for in-person voting.
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The arguments that the state recently made in the Supreme Court in Georgia v. Ashcroft are also very disturbing. They demonstrate a continuing disdain for the Voting Rights Act and a willingness to disregard the interests of minority voters. The state argued that Section 5 as applied by the federal court was unconstitutional. It said the retrogression standard of Section 5 should be abolished, that majority black districts were no longer needed, and that minorities should never be allowed to participate in the preclearance process.
As a long time member of the Georgia legislature and current chair of the Georgia Association of Black Elected Officials, I can confidently say that if we abolished the majority black districts for the state legislature, we would do away with most of the black legislators. The same would be true of black elected officials at the county and local levels. The argument that the state made in its Ashcroft brief failed to take into account how extensive racial bloc voting is, and that when a district is changed from majority black to majority white it depresses the level of black political activity. The enthusiasm, the spirit, the sense that blacks have a chance are all diminished. A formerly majority black district, particularly one without a black incumbent, would have a different voting pattern after it became majority white. Abolishing majority black districts would cause a significant reduction in the number of black office holders. The state's advocacy of such a position is, alone, a compelling reason for extending Section 5.
The most notable exception to the pattern of blacks losing in majority white districts, and which the state relied upon in its Ashcroft brief, have been judicial elections. Judicial elections, however, are unique in that they are subject to considerable control by the bar and the political leadership of the state. Candidates are essentially preselected through appointment by the governor to vacant positions upon the recommendation of a judicial nominating committee dominated by the bar. The chosen candidate then runs in the ensuing election with all the advantages of incumbency. Judicial elections are low key, low interest contests in which voters tend to defer to the choices that have previously been made. Robert Benham, elected to the court of appeals in 1984 and the state supreme court in 1990, and Clarence Cooper, elected to the court of appeals in 1990, were preselected in this manner.
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Benham received special treatment in other ways. The governor felt they could sell Benham in the white community, with the support of the bar and the Democratic leadership, because nobody knew he was black. The plan was to get out the vote in the black community in the traditional way, but to ignore race in the white community. Benham's picture could appear only on brochures distributed in the black community and there could be no endorsements of Benham by Maynard Jackson, Julian Bond, Jesse Jackson, or anybody in the civil rights community. The ability of preselected blacks to win low key judicial elections does not, however, translate into the ability of blacks to elect candidates of their choices in majority white state house and senate districts.
Georgia argued strenuously that its 2002 senate plan could not be deemed to dilute minority voting strength because black legislators supported the plan. But the support of the plan by black legislators should not be confused with their support of the state's arguments in the Supreme Court that majority black districts could be abolished, or that the retrogression standard should be abandoned, or that minority ''influence'' could be a substitute for the ability to elect.
Most of the members of the Legislative Black Caucus voted for the senate plan as a way of maintaining Democratic control of the legislature and holding onto committee chairs, and because any reductions made in their own districts did not compromise their reelection or the ability of minority voters to elect candidates of their choice. The overriding goals of the Democrats were to protect incumbents and increase the number of Democratic seats by not wasting the black votes in existing majority black districts. And while black caucus members agreed to the population reductions, they would never have agreed to the abolition of majority black districts. Black caucus member Bob Holmes, who has served in the Georgia house almost as long as I have, has said that ''No one would have gone for that. There would not have been a black vote for that.''
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Notably, the black civil rights leadership of the state, including NAACP, Southern Christian Leadership Conference, RAINBOW/PUSH, Concerned Black Clergy, Georgia Association of Black Elected Officials, Georgia Coalition of Black Women, and Georgia Coalition for the Peoples' Agenda, filed an amicus brief in the Supreme Court urging it to affirm the decision of the lower court rejecting the state's senate redistricting plan. They asked the Court to reject the state's arguments for repeal of the retrogression standard, the abolition of majority-minority districts, and excluding minorities from the preclearance process.
Most tellingly, black members of the legislature who had voted for the state's plan gave their full support to the filing of the amicus brief and said that it was the correct position for the civil rights community to take. I made a statement at the time that:
We fully supported the filing of the amicus brief by the civil rights groups. We voted for the state's plan for political reasons, but we were appalled by the arguments the state made in its brief in Georgia v. Ashcroft. There is no question that abolishing the majority black districts would turn the clock back. The preservation of the majority black districts is critical to minority office holding and minority political participation. As its president, I can speak for the Georgia Association of Black Officials and say that we strongly disagreed with the state's arguments in the Supreme Court.
I would urge this committee to support legislation restoring the protection lost under Section 5 as a result of the Georgia v. Ashcroft decision, by making clear that the retrogression standard of Section 5 protects the ability of minority voters to elect representatives of their choice. The ability to influence the election of candidates is not an acceptable substitute for the ability to elect. I also want to echo the sentiments of my colleagues that Georgia v. Ashcroft provides an extremely vague and difficult standard to administer.
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ATTACHMENT
[Note: Image(s) not available in this format. See PDF version of this file.]
Mr. CHABOT. Thank you very much, Representative Brooks. And before we get to our last witness, you mentioned Rosa Parks and the reauthorization of the Voting Rights Act. At the funeral in Detroit—where I think just about every Member of this Committee was present, at least that's present here now—that came up again and again by many of the very distinguished speakers at the funeral, how important it was that the Voting Rights Act be reauthorized.
Now, there is some, I would say, misinformation that the right to vote is going away after 2 years if this isn't reauthorized. There are only sections of this that need to be reauthorized. It's not the entire—some of those things are permanent, of course; although these things here are very important, as well.
But I just did want to acknowledge that what you're saying, we heard time and again at Rosa Parks' funeral last week.
Mr. McDonald, you're recognized for 5 minutes.
TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING RIGHTS PROJECT, AMERICAN CIVIL LIBERTIES UNION, FND.
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Mr. MCDONALD. Chairman Chabot and Members of the Committee, it's indeed a pleasure to appear before you, before so many colleagues and friends.
I agree with what some of the prior—all of the prior panel members have said, that the opinion of the majority in Georgia v. Ashcroft introduces new and vague and difficult to apply and contradictory standards. According to the Court, the ability to elect is important, it's integral; but a court must now also consider the ability to influence and elect so-called ''sympathetic representatives.''
The Court took a standard that was intelligible, easy to apply; and it's turned it into something that's subjective, abstract, and impressionistic.
The danger in the Court's opinion is that it will allow States to turn Black and other minority voters into second-class voters who can influence the election of White candidates, but who cannot elect their preferred candidates, including candidates of their own race. And that's a result, I think, that the Voting Rights Act should not allow to exist.
The inability of Blacks to exercise the franchise effectively in so-called ''influence districts'' is apparent, I think, from the lack of electoral success of Black candidates in majority-White legislative districts in Georgia. As of 2002, of the ten Blacks elected to the State senate in Georgia, every single one was elected from a majority-Black district. And the districts, by the way, had populations of 54 to 66 percent Black.
And of the 37 Blacks elected to the State House, 34 were elected from majority-Black districts. And of the three who were elected from majority-White districts, two were long-term incumbents whose Black percentages were in excess of 45 percent, and the third was elected from a three-seat district; every voter could elect three members to the House.
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I'd also want to comment that the brief which the State of Georgia filed in the Supreme Court in Georgia v. Ashcroft I think is a present-day example of the willingness of one of the States that's covered by section 5 to manipulate the law to diminish the protection afforded to racial minorities.
You should read the brief, because it resurrects the language that some White elected officials in the State had historically used to denounce the Voting Rights Act. In the brief filed in 2003, the State says that section 5 is an extraordinary transgression of the normal prerogatives of the States; that State legislatures were ''stripped of their authority to change electoral laws in any regard until they first attained Federal sanction''; the statute was ''extraordinarily harsh, and intrudes upon the basic principles of federalism.'' And the Court even made the argument that section 5, as construed by the three-judge court, was ''unconstitutional.''
Now, the rhetoric is one thing, but the arguments that the State advanced on the merits I think were far more hostile to minority voting rights even than its rhetoric was. Because one of the State's principal arguments was that the retrogression standard of section 5 should be abolished altogether, in favor of what it said was a coin toss—50–50 chance of winning or losing—standard. Well, by definition, if that were the standard that was adopted, you'd do away with half—or more than half—of the Black elected officials.
And the State also made the extraordinary argument, directly contrary to case law and to the intent of Congress when it extended the Voting Rights Act, that racial minorities—the very group for whose protection section 5 was enacted—should never be allowed to participate in the preclearance process.
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The minority influence theory, moreover, is frequently nothing more than a guise for diluting minority voting strength. The White members of the Georgia legislature, for example, opposed the creation of a majority-Black congressional district in 1981, on the grounds that it would diminish minority influence. It would cause, it said, White flight and the disruption of harmonious working relationships between the races.
Well, the three-judge court said that the so-called diminution of minority influence was actually a pretext, and that the refusal of the State legislature to create a majority-Black district in the Atlanta metropolitan area was ''the product of purposeful racial discrimination.''
Well, I would close by saying that because the decision in Georgia v. Ashcroft runs counter to the intent of Congress, it is crucial that Congress utilize the reauthorization process as an opportunity to restore the protection of section 5 and to clarify the retrogression standard as articulated in Georgia v. Ashcroft. Thank you very much.
[The prepared statement of Mr. McDonald follows:]
PREPARED STATEMENT OF LAUGHLIN MCDONALD
Chairman Chabot, Ranking member Nadler and Members of the Constitution Subcommittee:
I am pleased to appear before you today and appreciate the opportunity to share my views on the need for Congress to restore the protection of Section 5 of the Voting Rights Act, 42 U.S.C. §1973c, eroded by the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003).
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As you know, Section 5 of the Voting Rights Act requires certain jurisdictions with a history of racial discrimination in voting to obtain preclearance from the U.S. Department of Justice or the U.S. District Court in D.C. before they can implement any changes to their voting practices or procedures. To obtain preclearance, jurisdictions must prove that the proposed voting change is not retrogressive, i.e. does not have a discriminatory purpose and will not have the effect of denying or abridging a person's right to vote because of their race or color or membership in a language minority group.(see footnote 1)
Prior to the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), the Supreme Court in Beer v. United States, 425 U.S. 130 (1976) held that the failure to preserve the ability of minority voters to elect candidates of their choice is retrogressive and that such voting changes are objectionable under 5 of the Voting Rights Act. This standard was also ratified when Congress extended Section 5 in 1982.
The Georgia v. Ashcroft decision, however, represents a significant departure from the retrogression standards applied in Beer and other voting rights cases. The Court created a new standard for retrogression and allows states to relegate minority voters into second-class voters, who can ''influence'' the election of white candidates, but who cannot amass the political power necessary to elect a candidate of their choice who they believe will represent their interests.
The Decision of the District Court
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Georgia v. Ashcroft was an action instituted by the State of Georgia in the District Court for the District of Columbia seeking preclearance under Section 5 of its congressional, senate, and house redistricting plans based on the 2000 census. The district court precleared the congressional and house plans, but objected to three of the districts in the senate plan because ''the State has failed to demonstrate by a preponderance of the evidence that the reapportionment plan . . . will not have a retrogressive effect.'' Georgia v. Ashcroft, 195 F. Supp. 2d 25, 94 (D.D.C. 2002). Although blacks were a majority of the voting age population (VAP) in all three senate districts, the district court concluded that the state failed to carry its burden of proof that the reductions in BVAP from the benchmark plan would not ''decrease minority voters' opportunities to elect candidates of choice.'' Id. at 89. The standard for retrogression applied by the district court was the one articulated by the Court in Beer v. United States, 425 U.S. 130, 141 (1976). In Beer, quoting the legislative history of the 1975 extension of the Voting Rights Act, the Court held that the standard under Section 5 is ''whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting.'' 425 U.S. at 141 (emphasis in original). The state enacted a remedial senate plan, which was precleared by the district court, and appealed the decision on the merits to the Supreme Court.
The State's Brief in the Supreme Court
The brief filed by the state of Georgia in Georgia v. Ashcroft provides a dramatic, present day example of the continued willingness of one of the states covered by Section 5 to manipulate the laws to diminish the protections afforded racial minorities. The state's brief resorted to the kind of rhetoric that it had used countless times in the past to denounce the Voting Rights Act.
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In April 1965, Carl Sanders, the governor of Georgia, wrote to president Lyndon Johnson urging defeat of the pending voting rights bill. He argued that states had exclusive power to prescribe voter qualifications, and that the abolition of literacy tests in the southern states and the federal registrar system was ''an extreme measure . . . not even attempted during the vengeful days of the Reconstruction Period.'' LBJ Library, LE/HU 2–7, Box 70, p. 2.
In 1970, in testimony before the U.S. Senateq, Georgia's governor Lester Maddox railed against the Voting Rights Act as an ''outrageous piece of legislation,'' that was ''illegal, unconstitutional and ungodly and un-American and wrong against the good people in this country.'' Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, Ninety-first Congress, First and Second Sessions, on S. 818, S. 24556, S. 2507, and Title IV of S. 2029, Bills to Amend the Voting Rights Act of 1965, July 9, 10, 11, and 30, 1969, February 18, 19, 24, 25, and 26, 1970, p. 342.
The state essentially boycotted the 1975 congressional hearings on extension of the Voting Rights Act, but Georgia Attorney General Arthur Bolton advised Senator John Tunney in a terse letter that ''in a number of litigated cases my position with respect to the law in this matter is well established, and I do not at this time have anything further to add in this matter.'' Extension of the Voting Rights Act, Hearings before the Subcommittee on Constitutional Rights of the Committee on the Judiciary, United States Senate, Ninety-fourth Congress, First Session, on S. 407, S. 903, S. 1297, S. 1409, and S. 1443, April 8, 9, 10, 22, 29, 30, and May 1, 1975, Arthur Bolton to Sen. John Tunney. In one of the cases referred to by Bolton, the state argued that the Voting Rights Act was unconstitutional. See Georgia v. United States, 411 U.S. 526, 530 (1973).
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When Congress considered extension of the Voting Rights Act in 1981–1982, one of those who testified in opposition was Freeman Leverett, a former state assistant attorney general. He proudly recalled that he had argued on behalf of Georgia in South Carolina v. Katzenbach, 383 U.S. 301 (1966), that the Voting Rights Act was unconstitutional and renewed his attack on the act. Disparaging the civil rights movement, he said the Voting Rights Act had been passed in 1965 ''to appease the surging mob in the street,'' and that Section 5 should be repealed because ''there is no longer any justification for it at all.'' Voting Rights Act, Hearings before the Subcommittee on the Constitution of the Committee on the Judiciary, United States Senate, Ninety-seventh Congress, Second Session, on S. 53, S. 1761, S. 1975, S. 1992, and H.R. 3112, Bills to Amend the Voting Rights Act of 1965, January 27, 28, February 1, 2, 4, 11, 12, 25, and March 1, 1982, pp. 942, 950.
In its brief in Georgia v. Ashcroft, the state continued its tradition of bashing the Voting Rights Act. It argued that Section 5 ''is an extraordinary transgression of the normal prerogatives of the states.'' State legislatures were ''stripped of their authority to change electoral laws in any regard until they first obtain federal sanction.'' The statute was ''extraordinarily harsh,'' and ''intrudes upon basic principles of federalism.'' As construed by the three-judge court, the state said, the statute was ''unconstitutional.'' Brief of Appellant State of Georgia, pp. 28, 31, 40–1. But the arguments the state advanced on the merits were far more hostile to minority voting rights even than its anti-Voting Rights Act rhetoric.
One of the state's principle arguments was that the retrogression standard of Section 5 should be abolished in favor of a coin toss, or an ''equal opportunity'' to elect, standard based on Section 2 of the Voting Rights, 42 U.S.C. §1973, which it defined as ''a 50–50 chance of electing a candidate of choice.'' Georgia v. Ashcroft, 195 F.Supp.2d at 66.(see footnote 2) The state also made the extraordinary argument, and in contrast to well established law, that minorities, the very group for whose protection Section 5 was enacted, should never be allowed to participate in the preclearance process.
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Had the state's proposed coin toss standard been adopted, it would have had a severe negative impact upon minority voting strength. A 50–50 chance to win is also a 50–50 chance to lose. If the state were allowed under Section 5 to adopt a plan providing minority voters with only a 50–50 chance of electing candidates of their choice in the existing majority black districts, the number of blacks elected to the Georgia legislature would by definition be cut essentially in half, or reduced even further.
The Decision of the Supreme Court
The majority opinion of the Supreme Court in Georgia v. Ashcroft is the proverbial mixed bag. As an initial matter, the Court rejected two of the anti-Voting Rights Act arguments made by the state, i.e., that private parties should never be allowed to intervene in preclearance actions, and that the retrogression standard of Section 5 should be replaced with the ''equal opportunity'' standard of Section 2. According to the majority: ''Private parties may intervene in Section5 actions assuming they meet the requirements of Rule 24, and the District Court did not abuse its discretion in granting the motion to intervene in this case.'' 539 U.S. at 477. The Court further held that: ''Instead of showing that the Senate plan is nondilutive under Section 2, Georgia must prove that its plan is nonretrogressive under Section 5.'' Id. at 479.
The Court, however, vacated the decision of the three-judge court denying preclearance to the three senate districts because, in its view, the district court ''did not engage in the correct retrogression analysis because it focused too heavily on the ability of the minority group to elect a candidate of its choice in the majority-minority districts.'' 539 U.S. at 490. The Court held that while this factor ''is an important one in the Section 5 retrogression inquiry,'' and ''remains an integral feature in any Section 5 analysis,'' it ''cannot be dispositive or exclusive.'' Id. at 480, 484, 486. The Court held that other factors which in its view the three-judge court should have considered included: ''whether a new plan adds or subtracts 'influence districts'—where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process;'' and whether a plan achieves ''greater overall representation of a minority group by increasing the number of representatives sympathetic to the interest of minority voters.'' Id. at 482–83.
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The Court held ''that Georgia likely met its burden of showing nonretrogression,'' but concluded that: ''We leave it for the District Court to determine whether Georgia has indeed met its burden of proof.'' 539 U.S. at 487, 489. But before the district court could reconsider and decide the case on remand, a local three-judge court invalidated the senate plan on one person, one vote grounds, Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga. 2004), aff'd 124 S. Ct. 2806 (2004), and implemented a court ordered plan. Larios v. Cox, 314 F.Supp.2d 1357 (N.D.Ga. 2004). As a consequence, the preclearance of the three senate districts at issue in Georgia v. Ashcroft was rendered moot.
The Dissent
The dissent in Georgia v. Ashcroft, relying upon Beer, argued that Section 5 means ''that changes must not leave minority voters with less chance to be effective in electing preferred candidates than they were before the change.'' 539 U.S. at 494. The dissenters also argued that the majority's ''new understanding'' of Section 5 failed ''to identify or measure the degree of influence necessary to avoid the retrogression the Court nominally retains as the Section 5 touchstone.'' Id. at 495.
Problems with the Majority Decision
The opinion of the majority introduced new, vague and difficult to apply, and contradictory standard