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27–334 PDF








H.R. 9

MAY 4, 2006

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Serial No. 109–101

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

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PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

Subcommittee on the Constitution

STEVE CHABOT, Ohio, Chairman

MARK GREEN, Wisconsin

JOHN CONYERS, Jr., Michigan
MELVIN L. WATT, North Carolina

PAUL B. TAYLOR, Chief Counsel
KIMBERLY BETZ, Full Committee Counsel
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DAVID LACHMANN, Minority Professional Staff Member


MAY 4, 2006

    The Honorable Steve Chabot, a Representative in Congress from the State of Ohio, and Chairman, 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 John Conyers, Jr., a Representative in Congress from the State of Michigan, 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 Chris Van Hollen, a Representative in Congress from the State of Maryland, and Member, Subcommittee on the Constitution

    The Honorable Linda T. Sánchez, a Representative in Congress from the State of California, and Member, Committee on the Judiciary

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Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division, Department of Justice
Oral Testimony
Prepared Statement

Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity
Oral Testimony
Prepared Statement

Mr. Debo P. Adegbile, Associate Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Member, Subcommittee on the Constitution

    Prepared Statement of the Honorable Melvin L. Watt, a Representative in Congress from the State of North Carolina, and Member, Subcommittee on the Constitution

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    Prepared Statement of the Honorable John Lewis, a Representative in Congress from the State of Georgia

    Prepared Statement of the Honorable William J. Jefferson, a Representative in Congress from the State of Louisiana

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in Alaska, Michigan, New Hampshire, and South Dakota

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in California

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in Arkansas

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in Oklahoma

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in Mississippi

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in New York

    Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights Progress in Tennessee
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    Prepared Statement of the Honorable J.C. Watts, Jr.

    Prepared Statement of Jan Tyler, former Denver Election Commissioner

    Ana Henderson and Christopher Edley, Jr., ''Voting Rights Act Reauthorization: Research-Based Recommendations to Improve Voting Access,'' Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity



House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 9:07 a.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot (Chairman of the Subcommittee) presiding.

    Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution.
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    Good morning. We want to thank everyone for being here today. This is the Subcommittee on the Constitution, as I mentioned. This morning marks an important step for this Committee as it continues its examination of the Voting Rights Act of 1965 and the temporary provisions that are set to expire on August 6, 2007.

    Last fall, over the course of nine hearings, this Subcommittee examined in great detail each of the temporary provisions of the Voting Rights Act currently set to expire. With regard to sections 5 and 203, we held multiple hearings to ensure that all of the issues raised were addressed. This past March, we held an additional hearing to incorporate into the Committee's record a series of individual State and national reports documenting the continuing problem of racial discrimination in voting in the last 25 years and the necessity of the temporary provisions to protect minority voters in this Nation.

    Today we have before us H.R. 9, the ''Voting Rights Act Reauthorization and Amendments Act of 2006,'' the product of this Committee's work over the last 7 months.

    I'd like to take a moment to thank my colleagues and those in the audience, who have been with us from the start, for their dedication and commitment to get us where we are today. In keeping with the bipartisan spirit of our hearings and previous reauthorizations, I'm proud to say that H.R. 9 is, again, the result of a bipartisan effort.

    H.R. 9 extends the temporary provisions of the Voting Rights Act for an additional 25 years. In addition, H.R. 9 makes changes to certain provisions, including restoring the original purpose of section 5. In reauthorizing the temporary provisions, the Committee heard from several witnesses who testified about voter discrimination that currently exists in covered jurisdictions.
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    It is on this evidence that the Committee considers it necessary to continue the temporary provisions for another 25 years. I believe it's important to note that in reauthorizing the temporary provisions the Supreme Court, in South Carolina v. Katzenbach and later in City of Rome v. United States, upheld Congress's broad authority under section 2 of the 15th amendment to use the temporary provisions to address the problem of racial discrimination in voting in certain jurisdictions. With H.R. 9, Congress again invokes its authority under section 2 in order to appropriately address the continued problem of discrimination in voting that is revealed in the record before it.

    In addition to reauthorizing, the Committee finds it necessary to make certain changes to ensure that the provisions of the Voting Rights Act remain effective. For example, testimony received by the Committee indicates that Federal examiners have not been used in the last 20 years, but Federal observers continue to provide vital oversight. H.R. 9 strikes the Federal examiner provisions while retaining the authority of the Attorney General to assign Federal observers to covered jurisdictions over the next 25 years.

    In addition, H.R. 9 provides for the recovery of expert costs as part of attorney fees. This change brings the Voting Rights Act in line with current civil rights laws, which already allow for the recovery of such costs.

    H.R. 9 also makes technical changes to section 203, which will be discussed later this afternoon in a separate hearing. That hearing is at 2 o'clock this afternoon.

    Most importantly, H.R. 9 seeks to restore the original purpose to section 5. Beginning in 2000, the Supreme Court, in Reno v. Bossier Parish, and later, in 2003, in the case of Georgia v. Ashcroft, issued decisions that significantly altered section 5. H.R. 9 clarifies Congress's original intent with regard to section 5.
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    This morning we will hear from our witnesses and discuss those provisions of the bill that address sections 4 through 8, the trigger, bailout, preclearance, and observer provisions, and section 14, which addresses the issue of attorney fees, of the Voting Rights Act. This afternoon we will devote our discussion to the provisions of the bill that reauthorizes and amends section 203.

    I'd like to welcome and thank our witnesses here this morning, as well as our distinguished guests who are sitting with us on the dais this morning. None of the guests are here yet, so we won't recognize them at this time.

    The gentleman from New York, Mr. Nadler, the Ranking Member, is not here. The very distinguished gentleman from Virginia, Mr. Scott, is here, and would he like to make an opening statement?

    Mr. SCOTT. Thank you, Mr. Chairman. Representative Nadler wanted to be here but was unavoidably detained and asked me to sit in on his behalf. He's a strong supporter of the Voting Rights Act and regretted that he couldn't be here today.

    But it's been 40 years since passage of the Voting Rights Act, and that act has guarantees millions of Americans equal opportunity to participate in the political process. The genius of the act was not simply that it outlawed discrimination at the ballot box; it also gave voters new tools to ensure fundamental fairness in the voting process.

    In past years, Congress has recognized the tenacious grip of discrimination in voting and we've continued to reauthorize the sections that will be discussed here today. These expiring provisions are essential to ensuring fairness in our political process and equal opportunity for minorities in America.
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    From the initial passage of the Voting Rights Act, Congress has relied on an extensive record of discrimination in voting to justify the continuing needs for the remedies imposed by the expiring provisions. In the original enactment of the Voting Rights Act and subsequent reauthorizations, Congress made sure that the Voting Rights Act remedies were proportionate to the problems Congress sought to cure.

    In October of last year, we began the task of building a record to ascertain whether or not there was an ongoing need for these provisions. Through hearings in the Committee and field hearings conducted by many of the groups represented here on the panel, we have been able to build a clear and convincing record that there is a continuing need for the expiring provisions in the bill.

    The temptation to manipulate the law in ways that will disadvantage minority voters is great, as great and irresistible today as it was in 1982. There are many specific issues that need to be addressed, including the clear need for section 5 in light of the inadequate remedies provided under section 2. Section 5 must be reauthorized to continue blocking the implementation of discriminatory voting changes, whether by deterring jurisdictions from enacting the discriminatory law in the first place or by routinely blocking those changes in the courts.

    In the absence of section 5, a new State law can only be challenged in the time-consuming, vote-dilution litigation under section 2, where minority plaintiffs bear the burden of proof and, from a practical point of view and more significantly, they also suffer the burden of expenses in bringing the case.
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    The Supreme Court has ruled that winning parties in civil rights cases cannot recover expert witness fees as part of recoverable costs that they are entitled to receive, and this creates a chilling effect on voting rights litigation because it prevents lawyers and nonprofit organizations from recovering tens of thousands of dollars, sometimes hundreds of thousands of dollars, in expert witness fees.

    During the reauthorization process, we were able to consider the impact of Georgia v. Ashcroft on section 5. According to the Court, the ability to elect is ''important'' and ''integral,'' but a court must now consider the ability to ''influence and elect sympathetic representatives.'' Although this consideration under the facts of Georgia v. Ashcroft may not have caused a problem because a majority found that the number of minority-majority districts was not reduced—dicta in the case clearly suggests that there may not be a violation of districts in which minority voters can elect candidates of choice—or dismantled, creating some ill-defined list of influenced districts.

    The reauthorization and legislative history of section 5 must make it clear that this portion of the Voting Rights Act has been enacted to ensure that minority voters, where possible, ought to be able to elect candidates of choice. Influence in coalition districts will of course be a consideration in evaluation of the total plan, but the primary evaluation will be districts in which minority voters are able to elect candidates of choice.

    Our record reflects a continuing need for these expiring provisions. At a time when America has staked so much of its international reputation on the need to spread democracy around the world, we must ensure its vitality here at home. H.R. 9 does just that.
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    Thank you, Mr. Chairman.

    Mr. CHABOT. Thank you very much.

    Mr. Franks, did you wish to make an opening statement?

    Mr. FRANKS. No.

    Mr. CHABOT. Do any other Members wish to make an opening statement? The gentleman from Michigan, the distinguished Ranking Member of the full Committee, Mr. Conyers, is recognized.

    Mr. CONYERS. Thank you, Mr. Chairman. I'll put my statement in the record, but I am impressed that this Committee has probably done the kind of a job that I think will stand the scrutiny of history and that will also be commended for the fair way that we examine the problems that are connected with the reauthorization of this Voting Rights Act.

    We've broken our examination down before the introduction of H.R. 9 into a couple fundamental questions: Is there an adequate record of discrimination to justify reauthorizing the expiring provisions; and, Are the expiring provisions, as interpreted by the courts, still adequate to protect the rights of minority voters? And these are the questions that have guided us.

    I think there is an ample record through at least nine hearings. And now as we go through the actual bill that has been introduced, on a bipartisan basis, I think that we should applaud you, Mr. Chairman, in the way that you have conducted a very thorough set of hearings that I think will stand the test of time.
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    Mr. CHABOT. Thank you very much.

    Mr. CONYERS. The fact of the matter is that the questions that we are examining now will further help us. I welcome the witnesses back again who have participated and have helped us. We need to make sure that it is understood that circumstantial evidence in dealing with intentional discrimination is a very important part of the way we interpret the law.

    We also need to realize that the changes that have been made to deal with court interpretation previously has been done before at other reauthorization hearings. And so this is nothing particularly new.

    But I think that we might be well-advised that we've gone neither too far or left anything undone. I don't think that this was a pro-Voting Rights extension exercise and that everybody was cut out, because that's not the case. We've had balanced discussion, we've welcomed criticism from all quarters, we've examined every theory, plausible objection, and we continue to do it in the hearings that remain on the bill itself.

    So to me, I think there's been an excellent job done. I feel confident that we will be in the best circumstances to face a Court which we are not sure of where they will be going. There are many on the Court whose exact position on some of these questions is not clear or is unknown to us as we put together, from everything that we've been able to see, hear, examine, interpret, and also take from circumstantial evidence, the very fact that there's a need for the Voting Rights Act to be improved and continued.
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    It's a huge job at a very difficult period of legislative time. I want to just let everyone know, each Member of the Committee. I single out Mel Watt, who has taken on an extraordinary role in this regard. The Chairman of the full Committee has worked with every recommendation, every improvement that we've sought in the process, Jim Sensenbrenner. And so I come here fully satisfied that these discussions, these witnesses, the evidence that has been produced for this very voluminous record will be able to withstand the exacting scrutiny of the courts that will be called upon to evaluate it in the future.

    I thank you very much.

    Mr. CHABOT. Thank you.

    The gentleman from Virginia, Mr. Scott, is recognized out of order.

    Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I just wanted to follow up on the comments just made by the gentleman from Michigan.

    As you indicated in your comments, this has been a work, a bipartisan work that you and Ranking Member Nadler worked very well together. The Chairman of the Black Caucus, Mr. Watt, did a yeoman's job in working with all of the different groups. Mr. Sensenbrenner, the Chairman of the full Committee, and Mr. Conyers. And working with the Senate. This has been a tremendous job. We've developed a record that I think is a model for bipartisan cooperation that I think, hopefully, we would see before.

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    But I would want to signal particularly focus on the job that Chairman of the Black Caucus Mel Watt from North Carolina has done in working with this. It has not been an easy job. He's been criticized by everybody. But I think the final product is a testimony of his good work and resolve and willingness to take arrows from both sides and put together a bill that I think everybody can be proud of.

    Mr. CHABOT. Just let the record note that I haven't criticized him. [Laughter.]

    The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.

    Mr. WATT. Thank you, Mr. Chairman.

    I could certainly take more than my 5 minutes that I have here to just thank people. I think I will refrain from doing that on this occasion, except to re-extend the thanks that I made to you and Ranking Member Nadler for sitting through all of these hearings and developing the record, which I think will be so important as we move forward; and to extend thanks again to Ranking Member Conyers for having the confidence in me to allow me to proceed as his representative in the negotiations about the bill.

    I could certainly spend more than my 5 minutes summarizing the bill that we have arrived at. I think it is thorough and good, but Mr. Scott has done a magnificent job of doing that summary. Or I could spend more than my 5 minutes reading this eloquent statement that my staff has prepared for me. I think I will submit that for the record also.

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    What I thought might be helpful to us, though, to set the stage, is to let you know that I have been preparing to give a commencement speech at Fisk University, which is the school from which, after John Lewis, our colleague and moral leader in this fight, went to jail, and it took him a long time to get through to graduation. But he did graduate from Fisk University, and I'm doing the commencement address there. And it's given me the occasion to go back and reread some excerpts from the book that John Lewis has written called ''Walking With the Wind.''

    And I can't think of really a better backdrop to this discussion or to our pending markup as we go forward than to just read this atmosphere that people were operating in leading up to the passage of the Voting Rights Act. This is from page 326 of John Lewis's book, ''Walking With the Wind'':

    ''When we reached the crest of the bridge, I stopped dead still. So did Josea. There, facing us at the bottom of the other side, stood a sea of blue-helmeted, blue-uniformed Alabama State Troopers, line after line of them, dozens of battle-ready lawmen stretching from one side of U.S. Highway 80 to the other. Behind them were several dozen more armed men, Sheriff Clark's posse—some on horseback, all wearing khaki clothing, many carrying clubs the size of baseball bats.

    ''On one side of the road I could see a crowd of about a hundred Whites laughing and hollering, waving Confederate flags. Beyond them, at a safe distance, stood a small, silent group of Black people. I could see a crowd of newsmen and reporters gathered in the parking lot of a Pontiac dealership. And I could see a line of Park Police and State Trooper vehicles. I didn't know it at the time, but Clark and Lingo were in one of those cars.
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    ''It was a drop of 100 feet from the top of the bridge to the river below. Josea glanced down at the muddy water and said, 'Can you swim?' 'No,' I answered. 'Well,' he said with a tiny half-smile, 'neither can I.' 'But,' he added, lifting his head and looking straight ahead,' we might have to today.'

    ''Then we moved forward. The only sounds were our footsteps on the bridge and the snorting of a horse ahead of us.''

    Mr. Chairman, this is how we got here, this historical backdrop against which we were operating, in which President Johnson and those brave people, Members of Congress, enacted the original voting rights law. We've come a long way since then, but our record demonstrates amply, more than amply, that we still have a long way to go. And we have to keep on this mission at this basic democratic level—''democratic'' with a small ''d''—ensuring that every single citizen has the right to participate and have their voices heard in the political process. That's what this has been about.

    I want to thank everybody who has been involved in this. I hope we can move forward to finish this job with this bill.

    Thank you so much.

    Mr. CHABOT. Thank you very much for that particularly gripping opening statement. We appreciate you sharing Congressman Lewis's book with us.

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    The gentleman from Maryland, Mr. Van Hollen, is recognized, if he'd like to make an opening statement.

    Mr. VAN HOLLEN. Well, thank you, Mr. Chairman. I will be brief. I want to thank you and the Chairman of the full Committee, Mr. Sensenbrenner, and Mr. Watt, Mr. Conyers, Mr. Scott, and others who have worked for so long in making sure that this right that people lost their lives over and people fought so long to secure will be extended in the future if this Congress moves forward as I hope it will. I'm proud to be a cosponsor of this piece of legislation.

    I just want to thank everybody for working together, and hope we can see it through the process to the President's desk. Thank you.

    Mr. CHABOT. Thank you.

    And Ms. Sánchez, who's not a Member of this Committee but is a Member of the full Committee, would you like to make an opening statement? The gentlelady is recognized.

    Ms. SÁNCHEZ. Thank you, Chairman Chabot. And I also want to extend my thanks to Ranking Member Nadler for allowing me to join the Constitution Subcommittee for another important hearing on reauthorization of the Voting Rights Act.

    Today's hearing is particularly special for me and in fact for everybody who has worked on the reauthorization effort. We have a bipartisan bill that honors the sacrifices and intentions of our great champions of the civil rights movement. And more importantly, this bill protects the fundamental right of all citizens in our country to vote.
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    I was particularly proud to stand on the Capitol steps on Tuesday for the press conference announcing the introduction of the bill. There were a lot of Members of Congress there who were thanked for their efforts in the reauthorization. But I want to personally thank Congressmen Chabot and Nadler for being the first to start the process of building the congressional record and now conducting legislative hearings on this landmark bill.

    H.R. 9 is a shining example of the kind of quality bipartisan legislation that respects American ideals and puts partisanship aside. As a member of the Congressional Hispanic Caucus and a former civil rights attorney, this bill has every provision that I hoped it would contain when the reauthorization process began last fall.

    H.R. 9 extends the preclearance requirements in section 5 for another 25 years and strengthens section 5 by repairing the damage done by the Supreme Court in Reno v. Bossier Parish and Georgia v. Ashcroft, those two cases. These are, I feel, very productive improvements in the VRA that will protect citizens' voting rights nationwide.

    I'm also extremely pleased that the language assistance provisions in section 203 are reauthorized in this bill. My congressional district lies in Los Angeles County, which has been covered by section 203 since the year 2000. And I have seen first-hand how Hispanic, Chinese, Filipino, Japanese, Korean, and Vietnamese constituents have benefitted from those language assistance provisions when they go to the polls. That's why I believe that reauthorizing section 203 is an essential provision of H.R. 9. Voting is a fundamental right that should be protected for all citizens, and that includes language minorities.

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    Voting is the one way that every American citizen can participate, influence, and collectively shape our democratic Government. The ability to fully participate in an informed way should not be denied to those citizens—and I emphasize ''citizens''—who are more fluent in other languages other than English.

    Today I think the icons of the civil rights movement after whom this bill is named—Fannie Lou Hamer, Ms. Rosa Parks, and Coretta Scott King—would be proud to have a bill that protects all citizens' right to vote regardless of their race, ethnicity, education level, or language proficiency. And I can't think of a better bill to have worked on.

    We have Members backing this bill that come from all political stripes. They come from diverse ethnic and racial backgrounds and from Wisconsin to Florida, New York to California. This bill and those in support of it are a reflection of the best that America can do.

    I sincerely hope that as this bill makes its way through the legislative process in both the House and the Senate, partisan concerns are put aside. Every Member of this body should join in support for this bill as it is currently drafted and resist urges to weaken this landmark bill or strip any of its provisions for short-term political points.

    And again, I just want to thank the Ranking Member and the Chairman of both the Subcommittee and full Committee for their leadership on this issue. I yield back.

    Mr. CHABOT. Thank you very much.

    We'll now get into the introduction of the panel here.
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    Let me begin by saying that, without objection, all Members will have 5 legislative days to submit additional materials for the hearing record.

    Our first witness will be Mr. J. Gerald Hebert. Mr. Hebert is a sole practitioner in Alexandria, Virginia, focusing on election law and redistricting. Mr. Hebert has had an extensive career in voting litigation, representing a number of States in redistricting and election issues, including the States of Texas, California, New York, South Carolina, and Virginia. Prior to his practitioner work, Mr. Hebert worked at the Department of Justice from 1973 to 1994, where he served as acting chief, deputy chief, and special litigation counsel in the Voting Section of the Civil Rights Division. Mr. Hebert served as lead attorney in numerous voting rights and redistricting suits and as chief trial counsel in over 100 voting rights lawsuits, many of which were ultimately decided by the United States Supreme Court. Mr. Hebert testified before this Subcommittee during last year's oversight hearings on the Voting Rights Act. We welcome you back here this morning, Mr. Hebert.

    Our second witness will be Mr. Roger Clegg. Mr. Clegg also testified before us last fall. He is the President and CEO for the Center for Equal Opportunity, where he specializes in civil rights, immigration, and bilingual education issues. Mr. Clegg is also a contributing editor at National Review Online and writes frequently for USA Today, The Weekly Standard, the Legal Times, and other periodicals and law journals. Prior to his work at CEO, Mr. Clegg held a number of positions at the U.S. Department of Justice between years 1982 and 1993, including that of assistant to the Solicitor General. Welcome back here this morning, Mr. Clegg.

    And our third and final witness this morning will be Debo Adegbile. Mr. Adegbile is the Associate Director of Litigation at the NAACP Legal Defense and Educational Fund Incorporated, where he works with the director of litigation to oversee the organization's legal program while remaining actively engaged in voting rights litigation and advocacy. Previously, Mr. Adegbile was an assistant counsel at LDF, where he litigated voter rights cases on behalf of African-Americans and other underserved communities. Between 1994 and 2001, he was an associate at the law firm of Paul, Weiss, Rifkind, Wharton & Garrison, where he litigated several commercial and civil rights cases. More recently, Mr. Adegbile served as a coordinator of the National Nonpartisan Election Protection Program during the 2004 elections. We welcome you here this morning, Mr. Adegbile.
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    For those who haven't testified, and that's only, I think, one, before this Committee, so the other two are quite familiar with this, we have what's called a 5-minute rule. There's a clock right there in front of you, a light system, actually. The green light will be on for 4 minutes, the yellow light will come on letting you know you have 1 minute to kind of wrap up, and the red light will come on and that means your time is up. We won't gavel you down immediately, but we'd like you to try to end as close to the red light as possible.

    And it's the practice of this Committee to swear in all witnesses appearing before it. So if you wouldn't mind standing and raising your right hands.

    [Witnesses sworn.]

    Mr. CHABOT. All witnesses have indicated in the affirmative.

    We'll now begin with our first witness. Mr. Hebert, you're recognized for 5 minutes.


    Mr. HEBERT. Thank you, Mr. Chairman. And thank you, Members of the Committee, for the opportunity to speak to you today about what is considered to be the strongest and most effective piece of civil rights legislation ever enacted in the history of our country, the Voting Rights Act, which many consider to be the crown jewel of civil rights.
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    I previously appeared before the Subcommittee, as you said, last October, Mr. Chairman, and at that time focused my comments on the bailout provisions. I would simply add that I'm pleased to see that the bill, H.R. 9, makes no substantive changes in the bailout provisions. I think they're a good fit. I think they're easy to prove for jurisdictions that are not engaged in voting discrimination. I'm pleased to see that was left intact.

    Before getting to some comments about the bill itself, I want to take just a few minutes to make some preliminary comments about the coverage formula that's been a part of the Voting Rights Act since its inception. The coverage formula is important, of course, because it dictates which jurisdictions are going to be subject to the special provisions of the act.

    H.R. 9 makes no changes in the coverage formula. To be sure, the constitutionality of all the act's special remedial provisions hinges on the coverage formula, so it's clearly an important issue. Because the City of Boerne case from the Supreme Court is now 10 years old and the composition of the Court has changed since that time, no one can safely predict, of course, how the Court will consider an attack on the constitutionality of the act, which is surely to come based on the coverage formula that some have claimed is outdated. I think it will help those of us who intend to defend the act's constitutionality in the future against attacks from groups, including Mr. Clegg's, to be able to point to the reasons Congress decided that the continuing problems of voting discrimination warrants the extension of the acts special provisions.

    The record assembled by this Committee—and I'm pained to admit that I've read nearly all of it I believe is an impressive one. But what it really shows and what should be troubling to all of us is that the engine of voting discrimination runs on. And this Committee has done an excellent job at developing a record to show that the special provisions still remain a good fit to the discrimination in voting that is taking place.
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    And I think that's consistent with the Supreme Court's admonition in the City of Boerne case that there must be congruence and proportionality—and that's the quote from the Supreme Court—between the injury that you're trying to prevent or remedy and the means that you're adopting to that end. The fact that—the preclearance provisions in particular have blocked acts of intentional discrimination.

    Now, I had occasion to read Mr. Clegg's testimony before today and I note that one thing that he has said is that a lot of the discrimination is anecdotal and not necessarily proof of intentional discrimination. I would submit to you that he is either unaware of a lot of what is in the record or that he doesn't understand what constitutes intentional discrimination.

    I recall, for example, the numerous instances in the lengthy reports submitted by the Lawyers Committee for Civil Rights detailing intentional discrimination against minority voters. One of those examples, actually out of Alabama, involved the City of Foley. I represented a group of Black voters who wanted to become annexed into the city. Their children were drinking—the drinking water in their homes was contaminated because the septic tanks that they had outside their homes were leaking into the drinking water. They wanted to be annexed so they could be part of the city's services and get clean water and sewer services and streetlights and fire hydrants and all the rest. The city refused to annex them. And the Justice Department actually blocked some annexations on the grounds that they were allowing White people into the City of Foley to be annexed but were not extending the equal rights to Blacks.

    I represented that group of people after I left the Justice Department, and we sued the City of Foley. And make no mistake, the decision to try to keep those people out was intentionally based on racial discrimination. They didn't want that group of people voting in their elections. It had more to do with their opportunity to participate in the political process and bring about things that really affected their daily lives more than it did anything else.
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    And so I think that, you know, that example is in the record. But the Voting Rights Act ended up bringing about a solution to that problem. I'm happy to say that those people are a part of that town today and are getting the city's services that they deserve.

    I know that my time is running out, so lastly, let me just make a couple of observations about some of the other provisions.

    The one provision that I am opposed to in the bill is to adding a provision that precludes judicial review of the Attorney General's decision to certify Federal observers in a covered jurisdiction. I think that there ought to be occasions when we not only could review the decision about whether the Attorney General has placed observers in a certain area, but also to review the Attorney General's decisions to preclear certain things. That's a case, Morris v. Gressette, which presently precludes judicial review of the Attorney General's decision to preclear, and I think that's a provision that many of us in the voting rights bar would also like to see included in the bill. I understand that one horse can only carry so much baggage, but it is something that has been a growing concern to us, especially as we review the decisions by this Administration under the Voting Rights Act.

    Thank you very much, Mr. Chairman.

    [The prepared statement of Mr. Hebert follows:]


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    Mr. Chairman, Mr. Vice Chairman, and distinguished Members of this Committee. Thank you for inviting me to testify before you today on a piece of legislation that has proven to be the strongest and most effective piece of civil rights legislation in our Nation's history: the Voting Rights Act.

    I previously appeared before the Subcommittee last October and at that time focused my comments on the bailout provisions of the Act. Today, I will focus my comments this morning on a few key provisions of the proposed bill that has been circulated for discussion and has been shared with me by the Subcommittee staff. I also will briefly touch on a few other issues as they relate to reauthorization of the Act.

    Before getting to the bill itself, however, I want to take a few moments to talk about the coverage formula that has been a part of the Voting Rights Act since its inception. The coverage formula is important because it dictates which jurisdictions are subject to the Act's special provisions.

    As I read the proposed bill, the coverage formula determinations remain as they were. Even though the Supreme Court has upheld the Act against constitutional challenge on two occasions (1966 and 1980), much time has passed not only since the original Act was passed but also since the constitutionality of the Act has been revisited. On several occasions since 1980, the Court has decided voting rights cases assuming its constitutionality.

    In 1997, the Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act, finding that Congress had exceeded its enforcement power under the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507 (1997). The Court's opinion in Boerne cited and quoted with approval passages from its earlier 1966 decision upholding the constitutionality of the Voting Rights Act in South Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). The Court in Boerne actually seemed to reiterate its earlier reasons for upholding the Voting Rights Act in the Katzenbach case and distinguishing the Voting Rights Act from the unconstitutional Religious Freedom Restoration Act. Thus, many have assumed since that time that the Court's Boerne decision points toward why the Court continues to view the Voting Rights Act as constitutional today. I think the record that this Committee has assembled shows quite convincingly that the engine of racial discrimination runs on and the need for the special provisions continues.
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    The coverage formula issue is straightforward. According to the Supreme Court, Congress's enforcement power under the Civil War Amendments extends only to enacting legislation that enforces those Amendments. City of Boerne v. Flores, supra. The Court has described this power as ''remedial''. South Carolina v. Katzenbach, supra, at 326. The Court has cautioned that Congress lacks the power to decree the substance of those Amendments. In other words, Congress has the power to enforce, not the power to determine what constitutes a constitutional violation. City of Boerne, supra, at 519.

    The proposed legislation that I have reviewed makes no changes in the coverage formula. To be sure, the constitutionality of all of the Act's special remedial provisions hinges on the coverage formula, so it is clearly an important issue. And because City of Boerne is now nearly ten years old and the composition of the Court has changed, no one can safely predict how the Court will view the constitutionality of an Act based on a coverage formula that many consider outdated.

    Congress has developed a detailed factual record that supports the reauthorization of the special provisions. This Committee has been doing a terrific job of gathering this information over the past year and I commend this Committee for doing so. I think it will help those of us who intend to defend the Act's constitutionality in the future against attacks from Mr. Clegg and his group to be able to point to the reasons Congress decided that the continuing problems of discriminatory voting practices warrants an extension of the Act. Congress's approach to studying the current conditions in the covered jurisdictions to insure that the Act still continues to be a good fit to voter discrimination is consistent with the admonition in City of Boerne that ''[t]here must be congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'' Boerne, supra, at 520.
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    Mr. Clegg (p.7) complains that the record developed by congress is anecdotal and doesn't involve much intentional discrimination. He is apparently unaware of a lot of the information that has been developed or he doesn't understand what constitutes intentional discrimination.

    I recall for example that there were numerous instances cited in the lengthy report of the Lawyers' Committee for Civil Rights Under Law (which is already a part of the official record before this committee) detailing discrimination against minority voters. For example, former Justice Department official Robert Kengle reported that in Georgia, the Justice Department interposed several method-of-election objections where local governments ''attempted to add at-large seats to single-member district plans under circumstances that strongly suggested a discriminatory purpose.'' Mr. Kengle's analysis noted by way of example the July 1992 objection to the Effingham County Commission's attempt to change the county's then-existing five-member single-member district plan (which had been adopted in response to a vote dilution lawsuit) to a mixed plan with five single-member districts and an at-large chair to be elected with a majority vote requirement. The Justice Department objected to the change stating:

Under the proposed election system, the chairperson would be elected as a designated position by countywide election with a majority vote requirement. In the context of the racial bloc voting which pertains in Effingham County, the opportunity that currently exists for black voters to elect the commissioner who will serve as chairperson would be negated. Moreover, it appears that these results were anticipated by those responsible for enactment of the proposed legislation. The proposed change to an at-large chairperson followed the elimination of the position of vice-chairperson, which had been held by a black commissioner since 1987. Although we have been advised that the proposed system was adopted in order to avoid the possibility of tie votes in the selection of the chairperson and for other proposals before the board, this rationale appears tenuous since the change to an even number of commissioners would invite tie votes to a greater extent than the existing system.(see footnote 1)
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    Mr. Chairman and members of the Committee, this was not ancient history. It was a little more than a decade ago, and well after the Supreme Court and Congress had observed the potential for diluting minority voting strength in racially polarized elections that such changes could produce. The various devices proposed in combination in Effingham County (numbered posts, majority vote requirement and at-large elections) have each been cited by the Supreme Court and the Congress as devices that enhance the opportunity for racial discrimination to occur in the electoral process. So when Mr. Clegg says there is little evidence of intentional discrimination and that the discrimination detailed in the congressional record is largely anecdotal, I respectfully disagree.

    It is also important Mr. Chairman, that a number of objections interposed under Section 5 have been interposed to changes that had been illegally implemented (i.e., without Section 5 preclearance) for years, or even decades. Some changes finally were submitted only as the result of litigation; in other cases, it appears that the unprecleared changes were detected by DOJ during the Section 5 review of other changes (such as annexations) that were later submitted by the jurisdiction. The utter failure to make a Section 5 submission of an objectionable change, when such changes have been known for years to increase the potential for racial discrimination in the political process, strongly suggests that deliberate racially discriminatory conduct is at work.

    It is critical to recognize that in this day and age, evidence of intentional discrimination must often be gleaned from circumstantial evidence. That is because state and local officials largely avoid making overt public statements of racial animus. The point here is that Congress is entitled to look at the record it has developed and draw reasonable inferences that intentional discrimination continues to occur, and I think the record developed to date proves that it does. Drawing inferences of intentional discrimination from objective facts is hardly new. Indeed, the Supreme Court itself draws such inferences of intentional discrimination, largely utilizing the factors laid out in the Arlington Heights case to decide whether intentional discrimination may be inferred from certain actions of government officials.
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    Lastly, a couple of observations about some other provisions of the bill. I believe Congress was correct in not changing the bailout provisions. I am opposed to the adding of a provision that precludes any judicial review of the Attorney General's decision to certify federal observers in a covered jurisdiction. I believe that in some instances in 2004, decisions were made at the Department of Justice to send federal officials and observers to jurisdictions based more on political considerations than racial considerations. For this same reason, I would also like to go on record as supporting legislation that overrules the Supreme Court's decision in Morris v. Gressette and would permit judicial review in extreme cases of decisions made by the Attorney General to grant preclearance to a voting change. I offer these observations because I have seen the Department of Justice's enforcement of the Voting Rights Act subject to increased manipulation by political appointees for partisan purposes. The recent revelations about the Texas re-redistricting and how the preclearance process got corrupted within the Department of Justice—and there are other examples—illustrate the need for this judicial review. I would, however, reserve it for extreme cases.

    Mr. CHABOT. Thank you very much.

    Mr. Clegg, you are recognized for 5 minutes.


    Mr. CLEGG. Thank you, Mr. Chairman, for the opportunity to testify this morning before the Subcommittee. My name is Roger Clegg and I am president and general counsel of the Center for Equal Opportunity. I should also note, as you did, that I was a deputy in the Department of Justice's Civil Rights Division for 4 years, from 1987 to 1991.
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    The draft bill about which I've been asked to testify this morning is bad policy, basically from beginning to end, and unconstitutional in many different ways, to boot.

    Let me begin, though, by quoting something to you:

    ''And today, in the American South, in—in 1965, there was less than a hundred elected Black officials. Today, there are several thousand. The Voting Rights Act of 1965 has literally transformed not just southern politics, but American politics.

    ''Well, I think during the past 25 years, you have seen a maturity on the part of the electorate and on the part of many candidates. . . . So there has been a transformation. It's a different state, it's a different political climate, it's a different political environment. It's a different world that we live in, really. . . .

    ''The state is not the same state it was. It's not the same state that it was in 1965 or in 1975, or even in 1980 or 1990. We have changed. We've come a great distance. . . . [I]t's not just in Georgia, but in the American South, I think people are preparing to lay down the burden of race.''

    That's not me speaking, that's John Lewis, in a sworn deposition in the Georgia v. Ashcroft litigation.

    Justice O'Connor found that testimony credible. Let me read how she concluded her opinion for the Supreme Court in that case:
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    ''The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our transformation to a society that is no longer fixated on race. . . . As Congressman Lewis stated: 'I think that's what the [civil rights] struggle was all about, to create what I like to call a truly interracial democracy in the South. In the movement, we would call it creating the beloved community, an all-inclusive community, where we would be able to forget about race and color and see people as people, as human beings, just as citizens.' '' Justice O'Connor concluded: ''While courts and the Department of Justice should be vigilant in ensuring that States neither reduce the effective exercise of the electoral franchise nor discriminate against minority voters, the Voting Rights Act, as properly interpreted, should encourage the transition to a society where race no longer matters: a society where integration and color-blindness are not just qualities to be proud of, but are simple facts of life.''

    But the bill that you are considering today will ignore what John Lewis said about the changes in the South and will continue indefinitely the preclearance provisions of section 5.

    And it would explicitly overturn Justice O'Connor's decision in Georgia v. Ashcroft.

    And it would also ignore the warning that Justice Scalia gave in Bossier Parish II about the limits of Congress's authority, and overturn that decision.

    And, at a time when we are struggling with the issue of immigration, and when the one thing that everybody ought to be able to agree on is that we need to focus more attention on how to make sure that those coming to our country can become integrated into our society, that we strengthen the social glue holding that society together, and that all of us be able at least to communicate with one another, this bill would tell immigrants, hey, if you can't speak English, no problem, Congress will even force local governments to print ballots in foreign languages.
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    This bill is bad for those immigrants because it says that you can be a full participant in American democracy without knowing English—which is a lie. This bill is bad for all Americans because it perpetuates the racial gerrymandering and racial segregation that is now an inextricable byproduct of the section 5 preclearance process. In fact, the bill makes that process worse by overturning Bossier Parish and Georgia v. Ashcroft.

    All of this is bad policy and it is also unconstitutional. Sometimes the bill exceeds Congress's authority because it has no plausible record basis in enforcing the Constitution's ban on intentional racial discrimination in voting.

    And sometimes it violates principles of federalism.

    And sometimes it actually turns the Constitution on its head and tries to guarantee racial gerrymandering and racial segregation.

    I'm not happy to say this, Mr. Chairman, but I believe I must. What I'm afraid has happened is that Democratic Representatives—that's capital ''D'' Democratic Representatives—are afraid in this area to do anything that might offend some minority incumbents and some of their minority constituents. Their Republican counterparts are afraid to be called racist by various demagogues and interest groups. And both parties, especially Republicans, are politically happy with segregated districts and uncompetitive contests.

    I hope that there will be enough Representatives and Senators, or a President, out there who take seriously their oaths to the Constitution, who are willing to stand up to those who will call anyone a racist who stands in the way of their liberal agenda, and who will not let short-sighted political calculations tempt them from constitutional principle and the principle of nondiscrimination and nonsegregation.
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    Thank you.

    [The prepared statement of Mr. Clegg follows:]


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    Mr. CHABOT. Thank you.

    Mr. Adegbile, you're recognized for 5 minutes.


    Mr. ADEGBILE. Good morning, Chairman Chabot, Ranking Member Conyers, Congressmen—or I should say Congresspeople Watt, Scott, Sánchez, Van Hollen, Franks. It's a great pleasure to be with you this morning to speak on the topic of H.R. 9.

    Today I will speak very briefly to three topics: The proposed modification to section 5 to address the second of the Supreme Court's Bossier decisions; the proposed modification to section 5 to address aspects of the Supreme Court's ruling in Georgia v. Ashcroft; and the congressional power to renew the expiring provisions of the VRA under its enforcement powers under the 14th and 15th amendments.
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    With respect to the Bossier II modification, I think it's very important to note that in a very complex area of law the problem with Bossier Parish II is very understandable to everybody whether they be a lawyer or not, a representative or not. The problem is that the Voting Rights Act was clearly intended to stop discrimination in voting. It was most certainly intended to stop intentional discrimination in voting, and it was a long history of intentional discrimination that gave rise to the Voting Rights Act. Section 5 in particular was a special provision designed to stop entrenched discrimination and persistent efforts to circumvent court orders.

    To the extent that Bossier II requires section 5 to allow evidence of intentional discrimination to go forward and not turn back voting changes, it is nonsensical, it is inconsistent with congressional intent, and it is appropriate for the Congress to move swiftly to address that case.

    There's another point I would like to make about the Bossier II case, and that point is important as well. There is a tendency for those who oppose the very effective provisions of the Voting Rights Act to try and suggest that every single issue rises to constitutional importance. Congress has the power to enact the Voting Rights Act. We know that because the Supreme Court has told us on many occasions over the course of decades. The fix to Bossier II is statutory in nature. It does not rise to constitutional moment, and this body has the power to fix that statute, to stop intentional discrimination in the section 5 preclearance process so that the burden will not be foisted upon individuals in communities, often without resources and access to voting experts, to institute costly litigation to stop discrimination.
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    Turning to Georgia v. Ashcroft. That case was a break with longstanding precedent that had elevated the ability of minority voters to elect candidates of their choice. And when I say candidates of their choosing, I do not mean only African-American candidates or Latino candidates—candidates who the minority communities choose to serve them in this body and in State and local bodies. That ability-to-elect standard was very important in the context of section 5. It was important because there were many intentional efforts to limit the ability of minority communities to participate equally in the political process.

    In a winner-take-all game, which is the way our election system is structured, it's very important to be able to have your voices represented. The ability-to-elect standard has done that effectively. And if one reads Georgia v. Ashcroft carefully, the Supreme Court recognizes that the ability-to-elect standard is important, because they don't discard it altogether. However, they give legislatures too much leeway. They give legislatures the opportunity to choose a course of action, to pursue influence, which is an ill-defined concept. Everybody understands in common parlance that it's important to have influence in a political situation. But what we have found in light of racially polarized voting patterns, which persist in many of the covered jurisdictions, is that often influence alone is not enough, and influence is easy to hide behind. And this is one of the real harms that Georgia v. Ashcroft could bring to section 5.

    It's easy to advance influence as a theory by which to cloak intentional vote dilution and discrimination. That is the danger. We haven't seen the full expression of that danger yet, because Georgia v. Ashcroft, as this distinguished panel knows, was decided late in the redistricting cycle. If Georgia v. Ashcroft is not corrected, as this bill intends to, it could lead to a very substantial undermining of the power of minority communities to have their voices heard in legislatures.
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    I want to touch just briefly in my remaining time on the congressional power to enact these renewal provisions. It's very important to note that both the 14th and 15th amendments are sources of power for Congress to act. The Supreme Court has repeatedly—and I said this already—but repeatedly, over many decades, upheld Congress's power to establish section 5, and the Voting Rights Act's provisions, and has done so after the case of Boerne v. Flores, which many throw up as a limit on congressional power in the context of voting.

    To be sure, Boerne and its progeny tell us to look at the record carefully. It directs this body to be careful in its fact-finding. But this body continues to be the body that is best suited to make that fact-finding. I think that the record is very well-established. I don't have time to go into all of the examples.

    But I look forward to addressing any questions that the panel may have. I appreciate this opportunity.

    [The prepared statement of Mr. Adegbile follows:]


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    Mr. CHABOT. Thank you very much.

    The Members of the panel up here now each have 5 minutes to ask questions of the witnesses, and I'll begin with myself and I recognize myself for 5 minutes for that purpose.
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    Mr. Hebert, I'll begin with you, if I can. How administrable is the standard established by the Supreme Court in Georgia v. Ashcroft and how does it deviate from the standard set by the Supreme Court in 1976 in Beer v. United States, which was the standard followed by the Court for nearly 30 years?

    Mr. HEBERT. Well, Beer was a case that said that the effects prong of section 5 was to be measured by whether or not the proposed change retrogresses minority voting strength. Georgia v. Ashcroft did take a different approach to looking at retrogression in the context of a proposed redistricting plan. In Georgia v. Ashcroft the Supreme Court, and I agree with Mr. Adegbile that they have attempted to give States more leeway, in a sense, by saying that no longer will you be bound to simply look at the number of minority controlled districts you had before and compare it to the number of minority controlled districts you have afterwards and if there are less in the afterwards, then that retrogresses minority voting strength. That seemed to be a fairly bright-line test before—you looked at the number of effective minority districts that minority were electing candidates of their choice, and then you compared the proposed plan and measured them up.

    In Georgia v. Ashcroft, the Supreme Court said there are really three types of districts that should be in the calculus. There are majority-minority districts; there are so-called coalition districts, where minorities aren't a controlling majority by themselves but maybe operate in coalition with some other group, some other minority group or perhaps Anglos, to elect a candidate of their choice; and influence districts. And that you can really look at the totality of the plan before and see how many of those categories of districts you have and how many you see in the new plan in those categories. And if overall, in the totality of circumstances, there's been no retrogression, then the plan should be precleared.
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    There was an important fact in Georgia v. Ashcroft, which is that nearly all of the minority legislators in the Georgia legislature agreed with the plan to actually reduce down the percentages of some of the more heavily Black districts downward, where they still felt they could have effective control, and so the Supreme Court credited that testimony as well.

    I think, you know, that's a long answer to a short question, but it's really—the fact is that it did change the playing field, as the dissent pointed out in Georgia v. Ashcroft, by really taking what was previously a bright-line test and really replacing it with something that would be more difficult to administer by the Justice Department or the D.C. court, which is looking at the totality of circumstances test.

    Mr. CHABOT. Thank you. Let me follow up my next question with you as well, and then I'd invite any of the other panel members to answer as well.

    H.R. 9 restores the discriminatory purpose standard to section 5 such that any voting change made with a discriminatory purpose cannot be precleared under section 5. What impact will this change have on minority voters, and how difficult will it be for the Department of Justice or the United States District Court for the District of Columbia to administer? And does the change impose any additional burdens on covered jurisdictions? Is this intent more or less consistent with the way the standard was interpreted and applied prior to 2000?

    Mr. HEBERT. Well, the answer to, certainly, the last part of the question is it definitely restores the law as it existed prior to Bossier II. Bossier II represents, I think, really, the low-water mark for Supreme Court activity in the civil rights area, in a sense, because what it said was that they would reinterpret the statute to allow a jurisdiction that engages in unconstitutional discrimination in voting and develop a plan around that unconstitutional discrimination, and they could still get preclearance under the Voting Rights Act, a statute that was enacted to further the purposes of the 14th and 15th amendments. Many of us were really stunned that the Court could really rewrite the statute, which is what it did, and limit it in that way.
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    The Supreme Court has since at least the mid-1970's laid out a road map, and the Justice Department followed this for years and years, and still does in many cases, about how to take the circumstantial evidence of intent and draw inferences of purposeful discrimination out of it. It's called the factors that come out of the Village of Arlington Heights case back in 1977, and there are factors that you can actually take into account and say, look, based on what happened here—the context, the events that led up to the decision, the effect of the decision, whether they followed normal procedures, and so on—you can look at all of that and then draw an inference about whether or not intentional discrimination played a role.

    The Justice Department has, and the Supreme Court, too, those two branches of Government have for years been using that approach to prove discrimination. It would really not add much burden on the States to have to show that, in my view. They'd been able to work under that standard from 1965 to 2000. And, you know, for the most part, the Justice Department followed Supreme Court precedent in its interpretation.

    Mr. CHABOT. Thank you. If other witnesses would like to answer, they can—or not.

    Mr. CLEGG. Well, just briefly, Mr. Chairman. On the question you asked about whether the approach taken by Justice O'Connor in her opinion in Georgia v. Ashcroft would be more difficult to administer than what Mr. Hebert has called the bright-line approach that he favors, I suppose it's true that an approach that mechanically invokes quotas and racial gerrymandering is very easy to administer. It's very automatic. You don't have to consider all the other nuances and factors that Justice O'Connor thought ought to be included.
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    But ease of administration is not the only thing that we ought to be concerned about. And I think that that's what concerned Justice O'Connor, that the automatic approach of saying that, well, if you can draw a majority-minority district, you've got to do that, is easy to administer, but it's not consistent with the ideals of the Voting Rights Act.

    With respect to the Bossier Parish II issue, I agree with Mr. Hebert that there are a lot of things that go into the inquiry about whether purposeful racial discrimination has occurred. I don't think that we disagree about that. The question is whether section 5 should be interpreted to allow the Justice Department to refuse to preclear a change that is not retrogressive. And I think that Justice Scalia was right when he said that that was not the purpose, has never been the purpose of section 5, and that—if you were to interpret this that way, and this is what he said, that it would create real constitutional problems.

    Mr. CHABOT. Thank you very much.

    Mr. Adegbile?

    Mr. ADEGBILE. First, with respect to the question about Georgia v. Ashcroft, it's very clear that the Supreme Court's decision will make the administration of section 5 much more difficult. Justice Souter did an able job in the dissent in that case in pointing out that the Court had given no guidance as to how to compare the tradeoffs which it contemplates. Under section 5, DOJ or a reviewing court begins with the status quo. They don't take the standard from the air. They look to see what are the circumstances under which minority voters find themselves at present? And then they examine the voting change to see whether the voting change is worsening the position of minority voters.
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    When you have influence in the mix, it becomes very hard to understand what the benchmark is. How many opportunity-to-elect districts are equal to a so-called influence district? How many influence districts do you have to put in place if you take away a coalition district? The analysis gets very complicated and the statute will start to collapse of its own weight—which I hope was not the Court's intention, but I think that it's very important for this body to move to restore the clearer standard of the ability-to-elect that is reflected in H.R. 9.

    With respect to Bossier Parish II, the language in the bill clearly goes back to the pre-Bossier II standard. And it just simply does not make sense for DOJ or a court to have to turn a blind eye in a section 5 context to evidence of intentional discrimination. I mean, it's particularly disturbing, because we hear under the Boerne case and its progeny that it's very important to look to incidents of intentional discrimination. Well, I'm here to tell you that without section 5's protections and without this restoration, there will be more of those incidents that go completely undetected because there are not the resources or wherewithal to turn them aside. Section 5 is very effective in doing that and it's entirely consistent with the purposes of the Voting Rights Act, and I believe Congress's intent, to fix that case.

    Mr. CHABOT. Thank you very much. My time has expired.

    The gentleman for Michigan, Mr. Conyers, is recognized for 5 minutes.

    Mr. CONYERS. Thank you, Mr. Chairman.
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    I wanted to ensure our friend Mr. Clegg that John Lewis is—we're trying to get him to the hearings so that he can help you be more comfortable in your bed at night to find out that John Lewis is a full supporter of this bill—as a matter of fact, he's a cosponsor—and has been working with us on it. He would be probably as surprised as myself to find out that he is now being quoted as a reason not to be supportive of the bill. So I'm hoping he can get here from his other Committee assignment to join us here, because I've talked to him many times and I'm sure he'll be able to speak better to his quotation that you made than I can.

    Mr. CLEGG. Well, actually, he would not be surprised because I've done the same thing in the past when we've appeared on a panel together. So——

    Mr. CONYERS. He's used to you saying that?

    Mr. HEBERT. He's used to—— [Laughter.]

    Mr. CONYERS. Oh, okay. Well, then, I——

    Mr. CLEGG. He's used to hearing those words quoted. And of course, in his own testimony before the Subcommittee, he was at great pains to——

    Mr. CONYERS. Yeah. Did he help straighten you out? That didn't make any impression upon you, I presume.

    Mr. CLEGG. Well, look——
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    Mr. CONYERS. Well, if he's already been——

    Mr. CLEGG [continuing]. Mr. Conyers, he——

    Mr. CONYERS. Look, if he's already——

    Mr. CLEGG. That's what he said.

    Mr. CONYERS [continuing]. Denied it and you still insist on quoting him, then there's no point in my going any further on it. I've only got 4 minutes left.

    Mr. CLEGG. He doesn't deny the accuracy of the quotation.

    Mr. CONYERS. Well, I'm sure.

    Let me go somewhere else here now. Section 203. Now, the notion that we're encouraging people who are newly sworn-in citizens not to continue to improve in English is an important consideration. And for me, it's a sensitive one because we've already heard from a number of Members of Congress on this who have some reservations. And we know that immigration is a huge issue.

    So I wanted to ask Mr. Adegbile whether or not we can get through this particular time situation and continue to have language assistance where needed, in view of the record that's been compiled that shows that it is not particularly expensive and doesn't seem to put out election workers at all.
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    Mr. ADEGBILE. Thank you for that question, Congressman Conyers. Section 203 is a critical aspect of the Voting Rights Act. It was part of the evolution of Congress's understanding about our democracy and the barriers to that democracy. It's a provision that applies only to citizens—only to citizens—and many people try to distort the record on that issue.

    People who receive 203 assistance at the polls are people who pay taxes, they are people who serve in wars, they are people in our communities, and they deserve a say in the political process. It is simply nonsensical to suggest that somebody is going to make a decision about whether or not they are able to learn and speak English because of a rule that allows them to have translated materials in voting. I don't think that anybody seriously posits that argument. And if folks say it, I think it's a cynical argument.

    The NAACP Legal Defense Fund supports 203 language assistance because we recognize that barriers to voting affect many different types of citizens and that we don't enrich the democracy by saying some citizens can have access and others cannot. I am aware of some of the testimony that will be presented this afternoon. It will go in detail to these issues. And I think that the record on 203 that's before Congress now and continuing to be established will be at least as strong as the record that has been presented at previous renewals of the Voting Rights Act.

    Mr. CONYERS. Thank you.

    Mr. Hebert, have you any thoughts about that? Because to me, this is the one sensitive issue that I see standing in front of us. I think we're moving in a quite uniform way. We've kept in touch with our legislative counterparts in the other body. But in this era of immigration emotionalism, their marches and so forth, I want to get from both of you the best suggestions as to how we move to resolve this issue as expeditiously and effectively as we can.
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    Mr. CHABOT. The gentleman's time has expired, but the witness can answer the question. And I would just, again, note that we do have a hearing on this at 2 o'clock this afternoon, on section 203. But the question has been asked, so it can be answered.

    Mr. HEBERT. Thank you, Mr. Conyers, and Mr. Chairman for allowing me to answer.

    You know, I follow the Justice Department's enforcement of voting rights laws pretty closely. Since 1999, nearly all of the cases the Justice Department has brought in Federal court under the Voting Rights Act have been brought to enforce the minority language provisions under 203. Over 90 percent of their cases, and quite a number of them. And many of them get settled quickly because the jurisdictions find that the fix, that they are really not things that they are falling down on, are fairly easy to do and they recognize that they should be done.

    We talk a lot of times about citizenship and people being naturalized and the process and, you know, learning to speak English to become a citizen. Well, you know, if a child is born in this country and their parents aren't citizens, but they're born here, even if they're undocumented people, the parents, the child is a citizen at birth. They may grow up in a household that doesn't speak English. When that boy or girl turns 18 years of age and is ready to vote, why shouldn't they be able to go to the vote and get meaningful information to make their vote as effective as mine? Why would we deny people that right? In the United States we open our hearts and open our minds to people in this country, and that's why we, many argue that we have an immigration problem today, because we've been too soft.

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    But the fact remains that in the area where we're protecting the most fundamental right and trying to ensure that we do exactly what Mr. Clegg read, that John Lewis's vision for America is and Justice O'Connor's vision for America is, to get people included in the process, why would we not extend those bilingual provisions as we've done?

    Mr. CONYERS. Thank you very much.

    Thank you, Mr. Chairman.

    Mr. CHABOT. The gentleman's time has expired. Thank you.

    The gentleman from Arizona, Mr. Franks, is recognized for 5 minutes.

    Mr. FRANKS. Well, thank you, Mr. Chairman. And thank you, members of the panel.

    I know that when we discuss subjects like this, I think it's perhaps important for us just to back up for a moment and remind ourselves, you know, of the simple idea that America is first and foremost an ideal, an ideal that all human beings are created equal and endowed by their Creator with certain unalienable rights. And I think that that is indeed what America's best gift to the world is, to somehow not only maintain that but to see it exported throughout the planet.

    Having said that, you know, I'm going to make an admission that legislation like this catches some of us without full understanding of its overall impact. You know, it's a fairly esoteric endeavor that we face here. But having that desire to see all human beings recognized for the miracles that they are and somehow that we would become that color-blind society that cares about people because they're human beings, if we can start there and pursue that with our hearts, you know, I think that there is somehow hope for all of it.
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    Now, what I'd like to do, Mr. Clegg, I'll start with you, if you don't mind, is the Voting Rights Act has been in place for some time and there are going to be some things that are addressing Supreme Court decisions here. And if you can, in practical terms for someone who is not an expert, can you help me understand how, in practical terms—you know, an election—not so much in an outcome-based circumstance but in the effect of some of the corrections or the ways that this bill addresses both the Georgia v. Ashcroft and the Bossier decisions? How does this affect those decisions and, in practical terms, how is it played out?

    Mr. CLEGG. Putting aside questions of constitutionality, the fundamental policy problem that I have with this bill is the fact that section 5, unfortunately, has become a powerful engine for the segregation by race of voting districts. And I don't think that that was the original intent of the Voting Rights Act. I don't think that that's why people marched at Selma. I think that that turns the purpose of the Voting Rights Act on its head. And unfortunately, that is the single greatest effect now of section 5. And the overruling of Bossier Parish II and particularly the overruling of Georgia v. Ashcroft will exacerbate that problem.

    That's in a nutshell the most fundamental problem that I have with this legislation.

    Mr. FRANKS. Mr. Adegbile, your name has been said a number of different ways today and I'm not sure I said it right. So I hope you repeat it yourself for all of us. But would you take a crack at the same question?
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    Mr. ADEGBILE. Sure. And you did indeed pronounce it correctly. I apologize to the panel. I don't know of any translation for that particular name, and it always gives me difficulty as well. So I thank you for your efforts.

    With respect to the two decisions, I think Bossier II is very simple and I think it's easy to sort of break it down. Bossier II, as the Congress intends to correct the statute, the fix will have the effect of making it easier to detect and block some forms of intentional discrimination in voting. It's that simple. It's consistent with the intent of the statute, and that's what it does.

    I can't really imagine the theory of a constitution or a nation that would want to make it harder for those forms of intentional discrimination to get detected and stopped. That's what Bossier II does.

    With respect to Georgia v. Ashcroft, we've heard Mr. Clegg say a number of times that the Georgia v. Ashcroft modification will lead to the racial segregation of voters and other things to that effect. There are two important points. One is in my testimony, and that is there are many factors that map-makers consider when they draw districts. I need not tell these Members that because all of you are familiar with the process. But in the first instance, districts are drawn where voters are, where they live. There is residential segregation in the United States of America. It is not because we have the vote and because we have districts. It has its roots in the history of discrimination, and it persists to this day.

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    So in a system where we draw districts to give voices, local voices, an opportunity to participate in the political process, drawing some of those districts around segregated communities that are living under those circumstances because of our history of discrimination is not only appropriate, it's necessary. And the Voting Rights Act permits that because, even though minority people very often live together, there were people that would try to fragment these populations or over-concentrate them to minimize their voices in the political process.

    Significantly, there's also a line of Supreme Court decisions that exercises a check on racial gerrymandering, which Mr. Clegg is very familiar with. Shaw v. Reno and its progeny limit the ways in which race can be used in the redistricting process. Nothing in H.R. 9 changes those cases—some may think that the Voting Rights Act couldn't change those cases, since they are constitutionality based. Those limits continue to exist, and that is why the modifications suggested don't lead to racial gerrymandering as Mr. Clegg has suggested.

    Mr. FRANKS. I thank the gentleman. My time has expired, Mr. Chairman. Thank you.

    Mr. CHABOT. Thank you.

    The gentleman from North Carolina, Mr. Watt, is recognized for 5 minutes.

    Mr. WATT. Thank you, Mr. Chairman.

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    Let me start by asking unanimous consent to submit for the record the statement of Congressman John Lewis. He anticipated that he might not be able to get here today, probably anticipated what Mr. Clegg was going to say.

    Mr. CHABOT. Without objection, so ordered.

    Mr. WATT. All right. And having submitted it for the record, let me just read specifically what he concludes so that—which is actually not entirely inconsistent. I mean, it reinforces in some respects what you said.

    ''The Voting Rights Act was necessary in 1965, and unfortunately it is still necessary today, as the extensive Committee record makes clear. We have come a great distance, but we still have a great distance to go before all Americans have free and equal access to the ballot box. This legislation is among the most important that this Congress will consider, and I trust that we will take our responsibility to protect the voting rights of all Americans very seriously as we pass this legislation. We must renew the expiring sections of the Voting Rights Act in this session of Congress. Thank you.''

    All right, now that we've got that square. I guess, if you've heard, been on panels with John Lewis before and you've heard him take issue with your interpretation and Justice O'Connor's interpretation of what he said before, leads me some to question your interpretation and your intent on the rest of this. So let me go straight at it.

    I can understand how you can question the constitutionality of the statute. The Supreme Court's already ruled on that, so at least you don't mind taking on either John Lewis or the Supreme Court.
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    Mr. CLEGG [continuing]. The constitutionality of this bill.

    Mr. WATT. All right. My question to you is have you read the record. Now, Mr. Hebert said he had read the record in, I mean, almost 9,000 pages that we've developed here. Have you read the record?

    Mr. CLEGG. I have——

    Mr. WATT. Come on, just tell me whether you have or have not.

    Mr. CLEGG. Yes. I have. I can't say that I've read every word, but I've looked at every page.

    Mr. WATT. Okay. All right. I got you. So then you might not be surprised to find that there are numerous instances in the record where we have found that jurisdictions and States have been continuing to engage in discriminatory voting actions.

    Or maybe I should just make this simpler. Are you contending for the record that States and jurisdictions are not still engaging in efforts to diminish the impact of minority voters?

    Mr. CLEGG. Congressman Watt, of course there are still instances——

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    Mr. WATT. A yes or no answer might suffice. If you're contending that, I mean, I'd like to know that, or if you're not contending it. Don't finesse it, though.

    Mr. CLEGG. Congressman Watt, of course I'm not saying that there are no instances of discrimination. But what I said in my testimony, in my written testimony, was that I don't believe that the record that you have compiled——

    Mr. WATT. Which you haven't read.

    Mr. CLEGG [continuing]. Justifies—looked at every page.

    Mr. WATT. Okay.

    Mr. CLEGG. And, you know, let's be fair. You haven't read every word of the testimony either.

    Mr. WATT. I've been here for all of it, though.

    Mr. CLEGG. Yeah, but they don't—the record includes a lot that was not spoken, correct?

    Mr. WATT. That's true.

    Mr. CLEGG. All right. And, you know, you go through page after page after page of this testimony——
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    Mr. WATT. I think we've made the point, Mr. Clegg.

    Mr. CLEGG [continuing]. And the same people and——

    Mr. WATT. Let me move on to another question.

    Mr. CLEGG [continuing]. You know what's going to be there. And, I mean, you know, look, if you don't want a full answer, that's fine. But that's not going to help your case in showing that the Subcommittee——

    Mr. WATT. No, I think I got a full answer, and in this case you seem to be as willing to disregard the intent and what else is going on around you as you have been willing to disregard the intent of what John Lewis has said over and over and over again, and what I said in my opening statement. We are making progress. I don't think anybody would argue with you on that.

    Mr. CLEGG. And my point, Congressman. I'm not trying to mislead anybody. Of course, I know that John Lewis supports this bill. He told me that. He has said that for this record. My point in quoting him is that his statement about the transformation of the American South is completely inconsistent with the reauthorization of section 5. And it was relied upon by Justice O'Connor in Georgia v. Ashcroft, which this bill would overturn.

    Mr. WATT. That's exactly right.

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    Mr. CLEGG. Okay? So——

    Mr. WATT. Because we think that conclusion is inappropriate at this point, and I think that's Congress's right to think that at this point.

    Now, let me——

    Mr. CHABOT. The gentleman's time has expired. Would he like an additional minute?

    Mr. WATT. Can I get just 1 additional minute, because I want to——

    Mr. CHABOT. The gentleman is recognized for 1 minute.

    Mr. WATT [continuing]. Deal with my other two colleagues here, Mr. Adegbile and Mr. Hebert. I didn't want this to become just an issue with Mr. Clegg here.

    I mean, Mr. Scott and I have had this conversation before. I'm not sure I necessarily agree with you all's interpretation or the implication of what ability to elect candidates of choice means. Because the ability to elect candidates of choice, as I understand it, is not an invitation to protect only majority-minority districts. Electing candidates of choice can be candidates from coalition districts, influence districts also. Is that not the case?

    Mr. HEBERT. Yes, it is. It——
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    Mr. WATT. Okay. That's all. I just wanted to be clear, because I didn't want to leave the wrong impression, because the Supreme Court sometimes picks up, as Mr. Clegg does, the wrong impression from these things. I want this to be specific. There is nothing to suggest that candidates of choice have to be elected from majority-minority districts. Is that correct?

    Mr. ADEGBILE. I think Georgia v. Ashcroft can be read to suggest that nine justices agreed with that statement.

    Mr. WATT. Right. Okay. All right. I just wanted to be clear on that. I wanted to clarify the record.

    Mr. CHABOT. The gentleman's time has expired.

    The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.

    Mr. SCOTT. Thank you, Mr. Chairman. I thank the witnesses for testifying.

    The evaluation of a district, is there anything in this legislation that sets a national standard for ascertaining whether a district is one from which a candidate of choice can get elected? It's been my experience that it varies by district. So my question is does the language in Court precedents require a district-specific evaluation to ascertain whether or not minority voters have an opportunity to elect their choice. Mr. Hebert?
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    Mr. HEBERT. No, this bill does not create a national standard to that effect. And you're correct that, even under existing Supreme Court precedent, which this bill is consistent with, in my view, the opportunity to elect a candidate of your choice, preferred candidate of your choice in the district can range from, you know, heavily minority in some instances is necessary to less than 50 percent in others.

    Mr. SCOTT. Following up on that, in some coalition districts African-Americans have in fact been elected and candidates of choice elected, as the gentleman from North Carolina has indicated. Does the language in the bill protect those districts from being dismantled?

    Mr. HEBERT. Yes, it does.

    Mr. SCOTT. Under the language in the bill, so long as an opportunity district is not dismantled, does the language allow dismantling a coalition district adjoining the district, or does a plan which keeps the number of opportunity districts equal, but dismantles all of the coalition districts, would that plan violate section 5?

    Mr. HEBERT. In my view, it would.

    Mr. SCOTT. You have litigated many of these cases, is that right?

    Mr. HEBERT. Yes, I have.
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    Mr. SCOTT. Who pays your legal fees?

    Mr. HEBERT. Sometimes no one. [Laughter.]

    It varies, actually. If I represent a State or local government, the State or local government pays. In many instances I have served as pro bono counsel for public interest groups. In others, the Democratic Party has paid me.

    Mr. SCOTT. If an area has been victimized by an illegal scheme, are there circumstances where they cannot come up with the money to get themselves out of that situation?

    Mr. HEBERT. Bringing vote dilution cases, Congressman Scott, is a very, very costly enterprise. You need expert witnesses, you need skilled lawyers, because the other side is going to lawyer up big time, usually. I would estimate that the cost of a vote dilution case, to bring a vote dilution case through trial and appeal, runs close to a half a million dollars in costs.

    Mr. SCOTT. And much of that, under present law, is not reimbursable?

    Mr. HEBERT. That's correct.

    Mr. SCOTT. Under the bill, would most of the costs be recoverable?
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    Mr. HEBERT. Yes, they would.

    Mr. SCOTT. If you win?

    Mr. HEBERT. If you prevail.

    Mr. SCOTT. Under section 5 preclearance, if there is no preclearance, even if a client plan is clearly illegal, if we don't extend the preclearance provision, if a plan is clearly illegal, what would happen until a case could be brought?

    Mr. HEBERT. The discriminatory system would go into effect. Minority voters, presumably, would be harmed. And it might be too little too late to even bring a suit if you could muster the resources to file it.

    Mr. SCOTT. And if you finally win, is it your experience that the person running for reelection would have the advantages of incumbency?

    Mr. HEBERT. Absolutely.

    Mr. SCOTT. So they would benefit during the time when the illegal plan was in effect and continue to benefit because we did not extend the preclearance provision. With the preclearance provision, the plan never would have gone into effect in the first place, is that right?

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    Mr. HEBERT. That's correct. Once it goes into effect, you have a sitting incumbent. To get that sitting incumbent out, that would be a fruit of the poisonous tree, an advantage that incumbent would have against a challenger.

    Mr. SCOTT. Mr. Hebert, you've represented people in bailout cases. For those who have not discriminated in the last 10 years, is there any problem with bailing out?

    Mr. HEBERT. No. No, it's just really the only problem with bailing out is more people should know about it.

    Mr. SCOTT. Well, is it not a fact that some areas, for race relations purposes, would prefer just not to bail out so that, as they change election laws, the entire community would know that nobody's being discriminated against?

    Mr. HEBERT. That's true. A lot of jurisdictions like section 5 preclearance and like to get a stamp of approval from the Justice Department that their voting system is non-retrogressive. And I've heard a number of officials say that.

    Mr. SCOTT. My time's up.

    Mr. CHABOT. The gentleman yields back his time.

    The gentleman from Iowa I know just arrived, but is he interested in asking some questions?
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    Mr. KING. Mr. Chairman, I'd be very grateful to have that opportunity.

    Mr. CHABOT. Excellent. We appreciate that. The gentleman is recognized for 5 minutes.

    Mr. KING. Thank you, Mr. Chairman. And I thank the witnesses for their testimony and regret I wasn't able to listen to it all in its entirety, although I do come to this panel with a significant degree of curiosity with regard to this whole subject matter of reauthorization of the Voting Rights Act.

    You know, I've watched this society evolve from the time I was a young man and I saw the civil rights demonstrations in the streets, and I do believe and will always contend that it was necessary to establish the Voting Rights Act when we did. But I also don't see a path for us to ever get to the point where we could just simply recognize that this society has evolved to the point where we could get along without it. And I don't see a path that's being proposed on how we might be able to change the preclearance qualifications, for example, let alone the multilingual language that's in there.

    But I just direct my inquiry to Mr. Clegg. Your constitutional view? Could you state that with a little more depth, and your viewpoint on how you see this from a constitutional perspective in the Voting Rights Act?

    Mr. CLEGG. Sure. Section 5 is constitutionally problematic for two reasons. First of all, there are federalism concerns because of the extraordinary nature of the preclearance procedure. Voting activities are usually a State matter. Sometimes they are constitutionality committed to the States. And therefore there's a presumption that these matters are going to be handled by the States without the State having to go get permission from the Federal Government beforehand. The Voting Rights Act section 5 obviously changes that.
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    The other thing that section 5 does is allow the Justice Department to refuse to preclear a change not only when it is retrogressive and there is a discriminatory purpose, but also when it's retrogressive and there is simply a disproportionate effect on one racial group or another. The reason that that's constitutionally problematic is that the Supreme Court has made clear that Congress's authority in this area, that the Constitution prohibits only disparate treatment on the basis of race, not simply State actions that have a disparate impact.

    Mr. KING. Mr. Clegg, with regard to that—and I didn't hear you reference the 14th amendment Equal Protection Clause in this—but as I look at the results of this, and the Supreme Court has ruled that it's all right to discriminate on the basis of race as long as you're discriminating on the basis of advantaging a minority, has there been a case brought forward before the Court where there has been a non-minority that has been disadvantaged because of the redistricting and the gerrymandering to benefit minorities?

    Mr. CLEGG. Well, yes. That would be the Shaw v. Reno decision, which the NAACP referenced here. So the prohibition against—and this is actually a third way that section 5 raises constitutional problems. Again, unfortunately, it has been interpreted to require racial gerrymandering and to require the racial segregation of districts. And that is inconsistent with the Equal Protection Clause and with the 15th amendment, as the Supreme Court explained in Shaw v. Reno. I would say that it is unfair and wrong when that kind of segregation occurs not only to White voters, but also with respect to Black voters.

    Mr. KING. In Iowa we have a redistricting plan that separates all that and doesn't allow any gerrymandering and it's totally blind and unbiased in many, many regards. And I understand the politics of this on the one side—actually politics on both sides—but would you speculate as to what this country would look like if we just simply didn't reauthorize the Voting Rights Act and we let the conscience of the States and the people in this country regulate?
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    Mr. CLEGG. Well, it's important to keep in mind, Representative King, that many provisions of the Voting Rights Act are permanent. And——

    Mr. KING. Two or three, for example?

    Mr. CLEGG. And many of them are uncontroversial. And of course the 15th amendment and the 14th amendment are permanent as well. So just because section 5 is not reauthorized does not mean that a State that decided that it wanted to discriminate on the basis of race would be able to. It would still be blocked from doing that by the 14th amendment, the 15th amendment, and the permanent provisions of the Voting Rights Act. And I think that the point that Representative Lewis made and that I've made today is that the record is just not there to show that the covered jurisdictions, if section 5 were not reauthorized, are going to start acting as if it were 1965.

    I mean, one way to look at this, Congressman King, is suppose that we never had a section 5 and somebody came forward today, in 2006, with this bill. Somebody came forward in 2006 with this bill that was going to single out the jurisdictions that are singled out now by this bill and said, ''Let's require these jurisdictions to jump through these hoops and to be singled out for the penalty provisions of section 5.'' Would that bill—would anybody be seriously considering the enactment of that bill? And would anybody seriously think that that bill would withstand constitutional scrutiny? And the answer, of course, is no.

    Mr. KING. Thank you, Mr. Clegg. I yield back.

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    Mr. CHABOT. The gentleman's time has expired.

    Did the gentleman from Virginia have a request?

    Mr. SCOTT. Mr. Chairman, part of the reason the jurisdictions are the way they are now is because of the Voting Rights Act. And I would like, if any of the witnesses have closing comments on the continuing need for the Voting Rights Act, I would appreciate it if you'd give them an opportunity to respond.

    Mr. CHABOT. Okay.

    Mr. HEBERT. I would like to make a statement. Very briefly, Mr. Chairman—and thank you, Mr. Scott, for the opportunity to address this issue—first of all the Voting Rights Act does not require quotas, it does not produce segregated districts. Many of the minority opportunity districts that exist today are the most integrated districts in the country. They're 50, 55 percent minority. I mean, you know, there are a lot of Members up on this Committee who have come from districts that are 95 percent White, or better.

    I think the best way to look at this is the way I described recently when I was speaking during Black History Month to a class. And they said, well, what's the story with the Voting Rights Act extension? And I thought, what an interesting thing for sixth graders to ask that question. And I said, you know, here's the way to look at this. Back in 1982, Congress decided that strong medicine was still needed and the prescribed three pills a day of penicillin for 25 years. And hopefully, that was going to cure the disease of discrimination in voting.

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    Now, along the way, what we have found out is that the Supreme Court has said, in Georgia v. Ashcroft, well, you don't need to take three a day. Only take two a day. And then they came along with Bossier Parish and they said, well, we're going to take one of those others away, so now you're down to one a day.

    Well, the problem with that is that the penicillin you were originally prescribed is going to take a lot longer to take effect. What I see this bill doing is it gets us back to three pills a day, and hopefully a day when we have a healthy America in our political process, and racial discrimination ends. The disease of discrimination will be over.

    That, Mr. King, I think is really the simple answer to why we still need the Voting Rights Act, because the engine of racial discrimination runs on.

    Mr. SCOTT. Mr. Adegbile?

    Mr. ADEGBILE. Two quick points. Mr. Clegg said that section 5 is a penalty clause. Section 5, of course, is not a penalty clause. Section 5 is a remedy for demonstrated discrimination in the area of race in voting. In fact, it may be more appropriate to say that without section 5 the penalties that were imposed on minority voters for nearly 100 years after the passage of the 15th amendment—that is a substantial period of time—for nearly 100 years the Constitution was ignored, and it was tolerated in this country.

    Section 5 has begun to move us closer to ensuring the provisions of the Civil War Amendments. But we're not there yet. There's nothing inconsistent with recognizing the progress that we have made and also recognizing some of the mechanisms, legal and otherwise, that have helped to carry us there.
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    In light of the extensive record before this body, and I would say it's not just the number of pages, but what's contained in it. I will admit I've not looked at or read every page, though I have actively been engaged in helping to build the record, and it's very substantial. It's substantial at the local level. It's substantial at the Statewide level. It's substantial as to redistrictings, as to intentional discrimination, as to discriminatory effects.

    And finally, I will just say that history did not begin yesterday. Mr. Clegg says that we should start to analyze the passage or renewal of section 5 by saying, well, let's look at today and see how we find the way forward. The history of discrimination taught us about how it happens. And what the Congress has learned is that discrimination in voting is both adaptive and persistent. And it is that adaptive persistence that made section 5 necessary in 1965 and, based on the record, also today.

    Mr. SCOTT. Thank you very much.

    Mr. Clegg, did you have something?

    Mr. CLEGG. I was just going to say that, with respect to the record, when you all started out, it would seem to me that you would want the record to do a number of things. First of all—and somebody reviewing the record, the Supreme Court reviewing the record, is going to look for a number of things.

    First of all, it's going to want to make sure that the Committee came into this with an open mind and was getting evidence from both sides of this debate. It is going to want evidence of intentional, purposeful racial discrimination in the covered jurisdictions. And it iss going to need evidence that the discrimination that it found in the covered jurisdictions was worse than what's going on in the noncovered jurisdictions, because, after all, section 5 covers one and not the other. And then finally, it was going to need evidence that the extraordinary preclearance provisions and the use of an effects test rather than an intent test are necessary to ensure that purposeful discrimination does not occur.
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    And honestly, Mr. Chairman, I think that the record that you all have built, while it does have some instances of intentional discrimination in covered jurisdictions, is going to be inadequate for all of the four reasons that I've just listed.

    The record reads as if you all made up your minds ahead of time and you were trying to compile a record that was going to justify what you had already decided that politically you wanted to do. You found some evidence of intentional discrimination in the covered jurisdictions, but a lot of what's in there is not about purposeful discrimination. There is, I think, no real showing that the covered jurisdictions are more problematic than the noncovered jurisdictions. And finally, there's very little attention to why the preclearance provisions and the effects test are the best way to get at the intentional discrimination that does remain in the covered jurisdictions.

    I think this bill is very vulnerable if it's passed in this form and is challenged in court.

    Mr. CHABOT. The chair would just note that the record has been open and available for all groups of all opinions to supplement, to add to this record. And any group that would like to add additional information is certainly welcome to do so.

    Mr. WATT. Would the gentleman yield?

    Mr. CHABOT. I yield to the gentleman, yes.

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    Mr. WATT. I hope he will make it clear that the record is still open.

    Mr. CHABOT. That's correct. So, Mr. Clegg, if you or groups that you are aware of would like to add additional material, we would be happy to receive that.

    Mr. Hebert, as at least one person in this room—I know there are others—that has actually read the whole record, would you like to comment on Mr. Clegg's comment about the lack of substance or support for reauthorization of the Voting Rights Act?

    Mr. HEBERT. Yes, I would. Thank you for that opportunity.

    First of all, I think what the Committee had before it at the time it started its process was a bill that was already in place from 1982, that had been amended and extended in 1982. So you obviously had a starting point, and the appropriate thing to do was to consider whether those special provisions should be continued. You don't start with a clean slate, as Mr. Clegg would have us believe. You know, that kind of ignores the whole history of discrimination that's taking place in the country. You don't come into 2006 and say, okay, could we enact this bill as H.R. 9 today if there had been no Voting Rights Act. I mean, you know, yeah, if the earth was flat, we would have all fell off, too.

    The problem with Mr. Clegg's analysis is that Congress had an open mind. The open mind was let's see what evidence is out there about whether we continue to need these special provisions. And if you have evidence, Mr. Clegg, or anybody else, as the Committee said, bring it on. And if those of us who support the extension have evidence showing continued discrimination, bring it on. I think that's what the Committee's process has done.
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    As to the racial purpose that's out there, the evidence is replete with examples, in this record, of intentional discrimination. And the fact is that though there may be discrimination taking place in some of the noncovered areas, does that mean that section 5 is not working not only because there's continued evidence of discrimination in the covered areas, but perhaps section 5 has worked to stop it, as it was properly supposed to do?

    I mean, for all those reasons, I think that the record that the Committee has put together has been an impartially assembled record with no preconceived notions and has attempted to develop as complete a record as possible to support the extension. And I think that, in fact, it has done so.

    Mr. CLEGG. Mr. Chairman, I just want the record to reflect that I appreciate the opportunity the Committee has afforded me to testify and that there have been a number of studies, particularly those published by the American Enterprise Institute, that have been put into the record that I think make my point, that there is not an appreciable difference anymore in the degree of discrimination between covered and noncovered jurisdictions, and that the record of the covered jurisdictions is quite consistent with the sworn testimony that Congressman Lewis gave in Georgia v. Ashcroft.

    Mr. CHABOT. We appreciate the witnesses' testimony here this afternoon.

    Mr. WATT. Mr. Chairman?

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    Mr. CHABOT. Mr. Watt?

    Mr. WATT. I ask unanimous consent just to make a 30-second comment——

    Mr. CHABOT. Without objection.

    Mr. WATT [continuing]. On something that Mr. Clegg said. Because since Chairman Sensenbrenner and I had throughout this process been monitoring the record and trying to craft a bill, I don't want it to go unchallenged that somehow we started someplace and ended up the same place. That is just absolutely not the case. Had this bill been dropped before we started these hearings, I think it would have been a substantially different bill in a number of respects.

    So anybody who has this notion that this process was programmed—and Chairman Sensenbrenner was adamant about it. That's why no bill was dropped until after the hearing record was developed. That's why we made a particular emphasis with the Senate to have them have the benefit of the entire House record by having Chairman Sensenbrenner and Ranking Member Conyers take it over there and put it into their record. We are patently aware of the value of having a record here. And for anybody who's thinking that somehow we started with a notion of what this bill was going to include and ended with exactly that notion is just wrong.

    So I just—I think I just needed to clarify that.

    Mr. CHABOT. I thank the gentleman, because I know the gentleman has been very involved with many of the negotiations that have gone on with us and we appreciate his work and cooperation on that.
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    If there are no further witnesses or evidence to come before this Committee, we are adjourned. But I would mention again that we do have a hearing this afternoon at 2 o'clock on section 203.

    And no further business, we are adjourned.

    [Whereupon, at 10:54 a.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    Chairman Chabot, as we come to the end of our hearing schedule, I would like to commend you on your commitment to running a fair and open hearing process. Your flexibility and cooperation was essential to ensuring that all voices were heard as we approached the reauthorization of this historic legislation. Your leadership has been critical to the success of the process, thus far, and a testament to the fact that civil rights need not be a partisan issue.

    On Tuesday, we are introducing H.R. 9, Voting Rights Act Reauthorization and Amendments Act, which will renew and strengthen the Voting Rights Act for another 25 years. Chief among the expiring provisions of the VRA is Section 5, which requires that any change to voting rules in covered jurisdictions be submitted to either the U.S. Department of Justice or a federal court for ''preclearnace'' before it can take effect. Through Section 5, the VRA has prevented thousands of discriminatory voting changes from undermining minority voters' meaningful access to the ballot.
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    Our inquiry in the Act has broken down into two fundamental questions: 1) Is there an adequate record of discrimination to justify reauthorization of the expiring provisions ? and 2) Are the expiring provisions, as interpreted by the courts, still adequate to protect the rights of minority voters ? These questions should continue to guide us as we examine H.R. 9 itself.

    There is no right more fundamental than the right to vote, but for nearly a century, many Americans were denied this fundamental right of citizenship. While we applaud the substantial progress which has been made in the area of voting rights over the last 40 years, we must continue our efforts to protect the rights of every American voter with the reauthorization and restoration of the expiring provision of the Act. I look forward to the testimony of our witnesses.



    Thank you, Mr. Chairman. I want to begin by thanking Chairman Sensenbrenner for scheduling these hearings on H.R. 9 so that we can move forward towards passage of a Voting Rights Act reauthorization this Congress. Let me also thank you and Ranking Member Nadler for overseeing our compilation of an exhaustive record that fully and completely supports the policy choices that we have made with the introduction of this bill. Our record consists of an abundance of evidence that supports the continuing need for the expiring provisions of the Voting Rights Act, and was developed with an acute understanding of and attention to the Supreme Court's ''congruence and proportionality'' standard that imposes limitations on Congressional enforcement powers under the 14th (and likely the 15th ) Amendment(s).
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    This morning we focus primarily on the coverage, preclearance, and federal observer provisions in the bill. Section 4 of H.R. 9 effectuates a 25 year extension of these provisions. In addition, Section 3 makes changes to the examiner/observer provisions of the original bill by, in effect, updating the bill to reflect current circumstances. Federal examiners are eliminated, while Federal observers are retained and made subject to independent criteria for deployment and no longer tied to whether an examiner has been certified. Section 5 of H.R. 9 makes additional, necessary changes to Section 5 of the original Voting Rights Act, by addressing restrictive Supreme Court decisions that misconstrued the original intent of Congress. Reno v. Bossier Parish II (2000) and Georgia v. Ashcroft (2003) unhinged over 30 years of judicial interpretation and administrative implementation of the Voting Rights Act from their moorings. Together, these two cases returned back to jurisdictions with a history of discrimination the very discretion in implementing voting changes that Congress intended to curtail. Without the fix contained in H.R. 9, covered jurisdictions—those with a history and ongoing record of discrimination precluding the ability to bail-out from coverage—could enact and enforce, with impunity, voting changes that purposefully discriminate or undermine minority voters ability to elect candidates who share their values and represent their interests.

    We've always known that not everyone would appreciate the conclusions reflected in H.R. 9. Some critics of the bill—one of whom appears on this panel (Mr. Clegg)—maintain in one breath that our record is one-sided and, yet in another, cite extensive evidence that is contained in our record in support of a different approach to reauthorization. Academics, litigators, election officials, and voters, all no doubt have a variety of views inspired by various motivations on the voting rights issues with which we deal in this bill. But it is our responsibility, our duty to sift through the record and make a determination how best to serve the interests of society based upon congressional fact finding.
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    The cynical notion—articulated in submitted testimony today—that bipartisan, bicameral consensus on a civil rights bill is tantamount to racial pandering is not only wrong, it is offensive. A Congress with far fewer African Americans, Latinos and Asian Americans passed the Voting Rights Act of 1965 because the Constitution had been violated for too long. As we sit here today and evaluate the renewal bill, we do so because the record demonstrates that the work is incomplete. We have deliberated long and hard over months and months of internal debate; we have assembled an extraordinary record with competing facts and policy perspectives; we have listened to every side of this issue from the left, from the right; and we have reached the considered judgment that H.R. 9, supported by factual evidence of ongoing discrimination, vindicates the Constitutional rights of racial and language minorities to participate fully in the electoral process. This bill is not a panacea for all of the concerns raised by the record before us. But as the Supreme Court noted in the first challenge to the Voting Rights Act, in South Carolina v. Katzenbach, ''legislation need not deal with all phases of a problem at the same time.'' We must remain vigilant in crafting legislative remedies to secure the electoral franchise for all Americans. H.R. 9 goes a long way towards satisfying that goal.


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    I would first like to thank Chairman Chabot and Ranking Member Nadler for their leadership on this most important issue. It is critical that Congress reauthorize the Voting Rights Act and I am appreciative of your support of this bill.

    Mr. Chairman, the passage of the Voting Rights Act 41 years ago has had a powerful impact on this nation. Prior to its passage scores of African-Americans, Latinos, Asians, and Native Americans were excluded from the process. Yet now it has resulted in so many minorities of all cultures gaining substantive access to the democratic process. In my own district, passage of the Voting Rights Act has allowed my constituents to elect the first black Mayor of New Orleans in Dutch Morial as well as the first black member of Congress from Louisiana since Reconstruction.

    However, the gains that have been made due to the Voting Rights Act must not overshadow the need to reauthorize the expiring provisions. Since Section 5 coverage of the state began, the Civil Rights Division has object to discriminatory voting changes in Louisiana 146 times, 96 of which have occurred since the last extension in 1982. That is to say 65% of the objections placed against the state have occurred since Congress last extended protections to minority voters.

    Of the 96 objections since 1982 no fewer than half a dozen have directly concerned attempts to dilute minority influence in Orleans Parish. These include attempts by the state legislature to eliminate minority opportunity districts in 1982, 1991, and as recently as 2000. In 2000, the state's redistricting plan was opposed by the United States Department of Justice under Attorney General John Ashcroft as the state once again attempted to eliminate minority opportunity districts in Orleans Parish despite the fact that the African-American population of New Orleans had increased in real numbers and as a percentage of the Orleans Parish population.
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    According to reports from the National Association for the Advancement of Colored People (NAACP), People for the American Way (PAFW), and various press reports, students at Prairie View A&M University, a largely African-American institution, were erroneously told that they were ineligible to vote. This is particularly disturbing as I have three Historically Black Colleges in my district.

    Yet this issue goes beyond intimidation and disenfranchisement of black voters. The Latino population in the United States continues to grow at fast rate we must continue to provide the growing community with the resources to participate in the process. To that end, we must work to reauthorize provisions in the Voting Rights Act that provide these voters with bi-lingual ballots. It is in large part because of the important provisions of the Voting Rights Act that over 5,000 Latinos now hold public office in this country. The demographics of the nation are changing and we must continue to change with it. Only then will minorities earn true political incorporation. This is why we must reauthorize section 203 of the Voting Rights Act providing bi-lingual ballots.

    . The displacement caused by Hurricane Katrina makes it even more critical that this bill come to the floor quickly to be voted on, passed, and presented for signature. New Orleans has historically taken an active role in the struggle for minority voting rights. During the Civil War, free blacks there demanded suffrage; their efforts resulted in Lincoln's first public call for voting rights for some blacks in the final speech of his life. Once these rights were won, New Orleans blacks took an active part in politics, leading to the establishment of the South's only integrated public school system. In the aftermath of Hurricane Katrina, New Orleans finds itself at a turning point again in the struggle for voting rights.
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    The Supreme Court declared more than a century ago that the equal right to vote is fundamental because it is ''preservative of all rights.'' Every citizen of New Orleans, spread across 44 states, must be able to vote and it is only through the protections afforded to them by the Voting Rights Act that this will happen. Without the protection of the Voting Rights Act, these proposed changes would have been allowed, effectively disenfranchising a large segment of the population of the state.

    Reauthorization of Section 5 of the Act, requiring Department of Justice preclearance of changes to voting policies and procedures in certain jurisdictions, is vital. Section 5 must not be removed or weakened. This is of especial importance in areas with a documented history of exclusion and discrimination such as Louisiana.

    Reauthorization of the Voting Rights Act of 1965 is essential to our Nation because of the continuing efforts of some to deny voting rights to segments of our population. While progress has undeniably been made the task is far from over. Reauthorizing this act will bring us one more critical step forward to fulfilling the dream of over 500 non-violent protestors who bore the brunt of the backlash on Bloody Sunday. It will send a clear message to those who would seek to suppress voting rights that their machinations will not be tolerated. Reauthorizing this act will send a clear message to multitude of minority voters that their voices have been and will continue to be heard. Most importantly, it will bring this country one more crucial step toward fulfilling the ideals articulated by the Founding Fathers and true inclusion for all.

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    This statement is to convey my opposition to the renewal of Section 203 and Section 4(f)(4), the language provisions of the Voting Rights Act of 1965, as amended.


    My name is Jan Tyler. I was elected twice as a City and County of Denver Election Commissioner in l995 and l999. The Commission was established in 1904 with the Denver City Charter and is comprised of two elected Commissioners and the Clerk and Recorder, who is appointed by the Mayor.

    I was certified as a Certified Elections Registration Administrator in 2001 through a professional organization, The Election Center, which is affiliated with Auburn University. I renewed my certification in 2004. My career as an election administrator has always been an avocation, which I have continued as a volunteer election observer in Montenegro, Serbia, Ukraine and most recently last fall a two month stay in Kazakhstan.

    For the purposes of understanding opposition to the renewal of the VRA, I believe it is essential to respect the professional objectivity of the election administrator.


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    Justice Department officials first contacted the Denver Election Commission in 2002 to inform us that Denver County had been added to the list of jurisdictions covered under Sec. 203.

    We were told the Commission had to implement an extensive program to print ballots in Spanish, distribute voting materials in Spanish, and design outreach programs in Spanish.

    This seemed fundamentally un-American to me. At the time I was a member of the National Society of Daughters of the American Revolution, and I was familiar with the NSDAR's involvement in the naturalization ceremonies for new citizens.

    I thought new citizens were supposed to speak English as a requirement of citizenship.

    My own grandfather, a Polish immigrant, naturalized on August 29, l918. I completely empathize with the immigrant—before my parents changed my name, I was born Jan Zawistowski. This was my identity, and I was proud to be born his first grandchild on August 29, 1950, the same day my grandfather's naturalization took place many years before.

    But my grandfather would have been appalled if the government decided to print his American ballots in Polish, even if l0,000 of his closest Polish friends did live in Atlanta.

    Although I am certain the intentions behind the bilingual voting assistance requirements of the VRA were good, its effect has been to discourage new immigrants from assimilating and learning English. These provisions have also imposed significant costs on covered jurisdictions, including Denver County. I estimated at the time that Spanish assistance could add up to $80,000 to the more than $500,000 it costs to conduct an election in Denver County.
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    The cost estimates were accurate and about $80,000 has been spent every year since 2002 to comply.


    The VRA commands that there be no judicial review of coverage determinations under Sec. 203, which are made by the U.S. Census.

    This is not good government. Coverage determinations should be subject to scrutiny by the courts.

    One of the most significant problems with the way the Census makes coverage determinations today has to due with way the Bureau defines limited English proficiency (LEP).

    Specifically, Sec. 203 states: ''the term ''limited-English proficient'' means unable to speak or understand English adequately enough to participate in the electoral process.''

    The Census Bureau is interpreting this definition of LEP to include persons who self-identify themselves as speaking English ''not at all'', ''not well'', or ''well.'' Those who identify themselves as speaking English ''well'' should not be counted as ''limited English proficient'' for the purpose of making coverage determinations under Sec. 203.

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    The Census Bureau's overly broad definition of LEP has resulted in many counties being covered under Sec. 203 that should not be.

    I doubt that the truly limited English proficient population of Denver County meets the 10,000 or 5% threshold required to trigger coverage under the law. But since the Bureau's coverage determinations, including the definition of LEP used to make such determinations, ''shall not be subject to review in any court'' there is no remedy for Denver County or other covered jurisdictions.

    I also encountered problems with the DOJ on the enforcement side of the Sec. 203 requirements.

    Given my duty as an Election Commissioner to uphold the law, I decided to encourage full compliance. But when I asked DOJ officials for written and customized instructions for complying, I was told ''We do not tell you specifically what to do.'' Although there are some general, written guidelines, we were told that ''voter complaints'' would be used by DOJ officials to judge whether we were complying with the law. As anyone with any election administration experience knows, this is a poor way to judge compliance. There are many complaints even after the most well run election.

    One DOJ official went so far as to tell me ''we'll know you've complied when we see it.''


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    The DOJ uses a form of ethnic profiling called ''surname analysis'' to identify locations for bilingual polling districts in covered jurisdictions. The Justice Department also compels covered jurisdictions to conduct voter outreach efforts (e.g. mass mailings) targeting limited English proficient voters based on analysis of the surnames of voters living in covered jurisdictions.

    This is a highly inaccurate way to target LEP voters. Many people with Hispanic or Asian surnames speak English ''very well.'' Women whose native language is English, but who marry and take on Hispanic, Asian, or surnames of other covered language minority groups, do not need bilingual ballots.

    Surname analysis is also insulting to immigrants who have naturalized and learned English in order to vote. This is why some jurisdictions get furious responses from both Spanish and, of course, English speakers who are outraged that they have been singled out just because of a Spanish sounding surname.

    The DOJ should be barred from using surname analysis. It should also be prohibited from requiring covered jurisdictions to use surname analysis for the purpose of implementing Sec. 203. Instead, Census data should be used to target only those voters who identify themselves as speaking English ''not at all'' or ''not well.''


    Members of the Committee, I care about how we administer our elections. There is a difference, and will always be a difference, between the perspective of an Election Administration professional, whether elected or serving as a career appointee, and those who are political activists.
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    As an Election Administrator, I urge you to decline to renew Section 203 and Section 4(f)(4) of the Voting Rights Act.


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(Footnote 1 return)
John R. Dunne, Objection Letter, July 20, 1992.