[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]




                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                            OCTOBER 20, 2005


                           Serial No. 109-68


         Printed for the use of the Committee on the Judiciary

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


24-034                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member

                            C O N T E N T S


                            OCTOBER 20, 2005

                           OPENING STATEMENT

The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Member, Subcommittee on the 
  Constitution...................................................     3
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Member, Subcommittee on the 
  Constitution...................................................     4
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on the 
  Constitution...................................................     5


The Honorable Michael S. Steele, Lieutenant Governor of the State 
  of Maryland
  Oral Testimony.................................................     8
  Prepared Statement.............................................    11
Mr. Jose Garza, Voting Rights Attorney, League of United Latin 
  American Citizens
  Oral Testimony.................................................    12
  Prepared Statement.............................................    15
Mr. Armand Derfner, Voting Rights Attorney, Derfner, Altman & 
  Oral Testimony.................................................    79
  Prepared Statement.............................................    81
Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division, 
  U.S. Department of Justice
  Oral Testimony.................................................    87
  Prepared Statement.............................................    89

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Linda T. Sanchez, a 
  Representative in Congress from the State of California, and 
  Member, Subcommittee on the Constitution.......................   111
Prepared Statement of the Honorable David Scott, a Representative 
  in Congress from the State of Georgia..........................   112
Appendix to the Prepared Statement of Armand Derfner: United 
  States v. Charleston County (316 F.Supp.2d 268)................   113
Appendix to the Prepared Statement of Armand Derfner: United 
  States v. Charleston County (365 F.3d 341).....................   147
Appendix to the Prepared Statement of Armand Derfner: United 
  States v. Charleston County (125 S.Ct. 606)....................   157
Appendix to the Statement of J. Gerald Hebert: Revised Prepared 
  Statement......................................................   158
Materials for the Hearing Record submitted by the Honorable Steve 
  Chabot on October 27, 2005
    Presentation on Behalf of Merced County, California, 
      Concerning Reauthorizations of Sections 4 and 5 of the 
      Voting Rights Act..........................................   171
    Supplement to November 4, 2005 Presentation on Behalf of 
      Merced County--Information re Yuba County, California and 
      Why the Bailout Criteria are Unduly Onerous for California 
      Counties...................................................   238
    Prepared Statement of Chellie Pingree, President and CEO, 
      Common Cause...............................................   249



                       THURSDAY, OCTOBER 20, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:04 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee on the Constitution will come to 
    I am Steve Chabot, the Chairman of the Subcommittee on the 
Constitution. We appreciate everyone for being here this 
morning, and I especially appreciate some of our Members for 
being so prompt. This is the second in a series of hearings 
that the Subcommittee on the Constitution will be holding 
examining the Voting Rights Act.
    On Tuesday, we had a very productive hearing. And I want to 
thank both Ranking Member Nadler, the Ranking Member of this 
Committee, and also the Ranking Member of the full Committee, 
the distinguished gentleman from Michigan, Mr. Conyers, and all 
of the Republican and Democratic Members of this Committee, for 
their contributions to this process. I know we all appreciate 
the bipartisan effort being made to make these hearings 
    This morning, the Subcommittee will focus on one of the 
most important provisions of the Voting Rights Act, section 4, 
the provisions it triggers, and the impact that section 4 has 
had on protecting minority voting rights.
    We will also examine the usefulness of the so-called 
``bailout'' process available to States and counties that 
allows them to remove themselves from covered status.
    We have a distinguished panel with us today. And I would 
very much like to thank them all for being here and taking 
their time, because I know every one of these gentlemen has 
very busy schedules, and we appreciate their willingness to 
participate in this important hearing.
    After the Civil War and the passage of the 13th, 14th, and 
15th amendments, our Nation had high hopes that each and every 
citizen would be afforded an equal opportunity to participate 
in our democratic form of Government. Unfortunately, this was 
not to be--at least, for a very long, long time.
    Rather, certain States and counties made it a priority to 
undermine the ability of minorities to participate in the 
political process. These States and counties relied on various 
tests and devices--most often, literacy tests--to prevent many 
of our fellow citizens from exercising their fundamental right 
to vote.
    In 1965, Congress pushed back against these invidious 
practices, using section 4 and the additional provisions it 
triggers. Knowing the primary offenders, and the discriminatory 
patterns and practices that were being implemented in these 
jurisdictions, Congress took steps to target discrimination in 
these States and localities.
    Through section 4, a set of criteria was established to 
prohibit States and counties that had a history of 
discrimination from administering a literacy test as a 
prerequisite to voting. Specifically, those States and counties 
that maintained a test or device on November 1, 1964, 1968, or 
1972, and in which less than 50 percent of the voting age 
population was registered to vote on November 1 of 1964, 1968, 
or 1972, or participated in the Presidential elections held in 
November 1964, 1968, or 1972, were impacted by the prohibition.
    Congress--our predecessors--did not stop there. Recognizing 
that these States and counties had a history of circumventing 
Congress, section 4 automatically subjected these newly covered 
jurisdictions to additional Federal review, including the 
preclearance requirements of section 5, which we will discuss 
in greater detail next week, and the assistance of Federal 
examiners and observers set forth in sections 6 through 8.
    Section 4 has also been used to extend the protections of 
the Voting Rights Act to other minority citizens who have been 
denied the opportunity to participate in the political process. 
Presented with similar patterns of discrimination against 
language minority citizens, Congress brought language 
minorities under the protection of the VRA in 1975, expanding 
the number of jurisdictions subject to section 4 coverage. 
Presently, 16 States are either covered in their entirety or 
partially under section 4.
    In extending section 4 on three occasions, Congress has 
weighed the federalism issues raised by section 4 and the 
provisions it triggers against the continued need to address 
racial discrimination. In upholding the Voting Rights Act, the 
Supreme Court has consistently recognized Congress' broad 
authority under section 2 of the 15th amendment to remedy 
    Over the last 40 years, section 4 has played an important 
role in increasing the participation of minorities in the 
voting process; as witnessed by record voting registration 
levels. However, we must remain vigilant in our efforts to stop 
discrimination and ensure that every citizen is given a fair 
opportunity to exercise his or her right to vote.
    The Voting Rights Act will continue to help protect these 
important freedoms, until the day that we can proudly say that 
discriminating in voting no longer exists.
    We look forward to today's hearing and the testimony 
presented by our very distinguished panel at this time. And I 
would now yield 5 minutes to the gentleman from New York, the 
distinguished Ranking Member of the Committee, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman. I will be brief. I 
won't take anything near the 5 minutes.
    I want to warmly welcome our distinguished witnesses today. 
We are now getting to the core issues of the renewal of the 
Voting Rights Act. As we have all acknowledged, Congress needs 
to make a strong factual record supporting its remedies, given 
recent Supreme Court decisions.
    The witnesses today will provide much-needed information to 
guide our actions to make that record and to support--I 
presume, to support our actions in reauthorizing the Voting 
Rights Act.
    I look forward to the testimony, and I yield back.
    Mr. Chabot. I thank the gentleman for yielding back. The 
Ranking Member of the full Committee, Mr. Conyers, would you 
like to make a statement?
    Mr. Conyers. Mr. Chairman, I would, just briefly, please. 
And I thank you for this opportunity.
    When we enacted the Voting Rights Act in 1965, we 
determined that racial discrimination in voting has been more 
prevalent in certain areas of the country, and so section 4(a), 
which we are examining today, established a formula to identify 
those areas and to provide more stringent remedies where 
    As you said, it has been amended three times, to broaden 
the scope of the act's coverage to language minorities, and to 
cope with the changing nature of voting discrimination. In 
1975, we expanded the coverage formula to include the practice 
of providing in any election information, including ballots, 
only in English, in States or political subdivisions where 
members of a single language minority constituted more than 5 
percent of voting age. This affected the coverage in Alaska, 
Arizona, Texas, in their entirety; parts of California; 
Florida; even in my State of Michigan, two townships; New York; 
Carolina [sic]; and South Dakota.
    Significantly, section 4, in adding to defining the scope 
coverage, contains a bailout provision that allows 
jurisdictions to terminate or bail out from coverage under the 
act's special provisions; originally enacted as a means to 
remedy any possible over-inclusiveness resulting from 
application of the trigger formula. So we amended the procedure 
in 1982 so jurisdictions that meet the statutory standards can 
obtain relief.
    Bailout, though stringent in its terms, has been 
realistically available as an option to covered jurisdictions. 
For example, when the act was reauthorized in 1970, 
enhancements in the coverage formula resulted in the partial 
coverage of 10 States.
    After 1982 modifications to the bailout provision, the City 
of Fairfax, Virginia, filed the first bailout action, and the 
United States consented to the declaratory judgment entered in 
October 1997. And since that time, several other jurisdictions 
have obtained similar judgments. It is a quick way to get out 
from under it.
    Thus, the act's bailout provision serves as a self-
adjusting mechanism that enables jurisdictions in which the 
right to vote is no longer threatened to remove themselves from 
preclearance requirements from section 5.
    I look forward in particular to Mr. Hebert's discussion on 
this issue; as I believe that bailout is an important area for 
this Committee to understand in detail as we move forward.
    And so in this reauthorization process, it is vital that we 
understand the evolution of the act, to ensure that we build a 
record adequate to insulate this important legislation from 
constitutional challenge.
    This hearing is an important one because it provides a 
benchmark to our inquiry. And I appreciate the Chair's and the 
Members' great detail in going through these hearings, because 
it is very critical that we leave a record showing that we 
understand that these discussions will be gone back into. And I 
thank you for the time, and yield back, Mr. Chairman.
    Mr. Chabot. Thank you very much, Mr. Conyers.
    I understand the gentleman from North Carolina, Mr. Watt, 
would also like to make an opening statement.
    [Discussion off the record.]
    Mr. Chabot. Mr. Scott, did you want to make a statement?
    Mr. Scott of Virginia. Thank you, Mr. Chairman. And Mr. 
Chairman, in the 40 years since its passage, the Voting Rights 
Act has guaranteed millions of minority voters a chance to have 
their voices heard and their votes counted. The number of Black 
elected officials has increased from just 300 nationwide in 
1964, to more than 9,100 today. Poll taxes, literacy tests, and 
other discriminatory barriers that once closed the ballot box 
to Blacks and other minorities have been dismantled.
    The process also opened the political process for nearly 
6,000 Latinos who now hold public office, including more than 
250 who serve at the State or Federal level.
    When Congress enacted the Voting Rights Act in 1965, it 
determined that racial discrimination in voting had been more 
prevalent in certain areas of the country. To address this 
problem, section 4 of the act established a formula to identify 
those areas and to provide more stringent remedies where 
    The first of these targeted remedies was a 5-year 
suspension of a test or device, such as a literacy test, as a 
prerequisite to registration.
    Second was a requirement for a review and preclearance 
under section 5 of any change affecting voting made by the 
covered area, either by the United States District Court in the 
District of Columbia or by the Attorney General.
    Third was the ability of the Attorney General to specify 
that specified jurisdictions also required the appointment of 
Federal examiners. These examiners would prepare and forward 
lists of persons qualified to vote.
    And the final remedy was special provisions giving the 
Attorney General authority to send Federal observers to those 
jurisdictions that had been certified for Federal examiners.
    In the past years, Congress has recognized the tenacious 
grip of discrimination in voting, and we have continued to 
reauthorize the sections we will discuss today. These 
provisions are essential to ensure fairness in our political 
process and equal opportunity for minorities in American 
    Now, if we are to continue these provisions, we need to 
establish the record showing the compelling State interest in 
these processes, and making sure that the remedy is narrowly 
tailored to address that interest. And so, Mr. Chairman, I 
thank you for holding these hearings, so that that record can 
be established.
    Mr. Chabot. Thank you very much, Mr. Scott.
    The gentleman from North Carolina is recognized.
    Mr. Watt. Thank you, Mr. Chairman. And let me start by 
thanking Chairman Chabot for convening this second in a series 
of hearings on the expiring provisions of the Voting Rights 
Act; and once again, thank Chairman Sensenbrenner publicly for 
committing to developing a full record for evaluating the 
impact of the Voting Rights Act and its provisions that we 
think need to be reauthorized.
    I normally would refrain from making a detailed opening 
statement, to try to get to the witnesses. But we kind of 
wandered away from the framework in the last hearing, and I 
wanted to make sure that we were focused. Because I think it is 
so important to focus these hearings on the various provisions 
that we are considering reauthorizing, so that we make sure 
that we kind of build the record in different parts.
    And today's hearing focuses on sections 4(a) and 4(b) of 
the Voting Rights Act, commonly referred to as the ``trigger'' 
and ``bailout'' provisions. Under section 4(a), jurisdictions 
that maintained a discriminatory voting test or device or a 
literacy requirement as a precondition to registering or 
casting a vote as of November 1, 1964, 1968, or 1972, and, two, 
wherein less than 50 percent of the voting-age residents were 
registered to vote or actually voted in the Presidential 
elections of 1964, 1968, or 1972, are bound by the requirements 
of other provisions of the act, including section 5, 
preclearance, and the election examiner and observer provisions 
in sections 6 through 9.
    While the substance and operation of sections 5 and 6 
through 9 will be addressed at later hearings, today's 
testimony should center upon the coverage formula contained in 
section 4(a).
    There are obviously those who contend that the coverage 
formula of the Voting Rights Act is outdated and unfair, 
insofar as it covers certain jurisdictions but not others. 
There is no doubt that there are any number of inventive 
triggers that Congress could have enacted. I believe, however 
that the central question before us during this process is not 
what Congress could have done, but whether what we have 
established as the coverage mechanism in the Voting Rights Act 
is justified by the facts.
    Covered jurisdictions, simply put, are covered because they 
have not only a history of discriminatory practices, but have a 
history of ongoing discrimination as well.
    And let me address two arguments quickly here. One is that, 
well, there are a lot of other people who violate the law, 
also. And I want to just draw a couple of distinctions here. It 
is no defense to a speeding infraction that the guy in front of 
you is speeding, too, or even going faster. There may be other 
people who were speeding, but if you were speeding, and you 
have a history of speeding, you are going to get coverage.
    Similarly, the presence of discriminatory activity in an 
uncovered jurisdiction does not, and should not, relieve those 
covered under section 4(a) from the act's requirements.
    Second, there is this thing about history. And I don't want 
to demean this, but I want my colleagues on the Committee and 
in the public to understand that there are some parallels here. 
And I hope I am not offending anybody by doing it in this way. 
I am doing it only for illustration purposes.
    I call this preclearance provision a kind of form of 
``Megan's Law'' registration requirement. If you committed a 
crime before, especially crimes of a certain kind where you are 
likely to have a higher predilection to commit the same or 
similar kinds of crimes again, you are required to do certain 
things. That is ``Megan's Law.'' And the Supreme Court has 
upheld ``Megan's Law.''
    Now, personally, when ``Megan's Law'' was debated on this 
Committee, I voted against it. I thought it was a precondition. 
But the Supreme Court upheld it. And there is no bailout 
provision in ``Megan's Law.''
    So let me talk about the bailout provisions here, because I 
think that is what, really, we ought to focus on here. If a 
jurisdiction under section 4(b) wants to get out from under the 
preclearance requirements of the Voting Rights Act, there is a 
process for doing that.
    Mr. Chabot. The gentleman's time has expired. Would the 
gentleman like additional time?
    Mr. Watt. If I could, just let me run this out. And I will 
be very quick. It will be about a minute and a half, I think.
    Mr. Chabot. All right. The gentleman is recognized for an 
additional 2 minutes.
    Mr. Watt. Under section 4--the bailout mechanism permits a 
covered jurisdiction to demonstrate that it now facilitates 
equal opportunity at the ballot box. By doing so, the 
jurisdiction may relieve itself of the obligations imposed 
under the act. And in fact, nine jurisdictions in the Sate of 
Virginia alone have availed themselves of this provision and 
have successfully bailed out of the preclearance coverage of 
the Voting Rights Act.
    Finally, in anticipation of some of the positions that may 
be advanced in opposition to the current coverage mechanism, I 
should say that, while section 2 is extremely important within 
the total scheme of the Voting Rights Act, it is no substitute 
for the protections afforded by sections 4 and 5.
    Section 2 places both the burden of proof and pocketbook on 
potential victims of voting rights violations. These, too, are 
issues we will explore in greater depth in subsequent hearings.
    Mr. Chairman, I am pleased that you are conducting this 
hearing. And I hope we will focus on these particular 
provisions today, because the preclearance provisions and the 
bailout provisions are not only important, but they are not 
unprecedented in our law. There are some other areas where we 
do similar kinds of things.
    I appreciate the extra time, and I yield back.
    Mr. Chabot. I thank the gentleman. And I would also like to 
recognize several other Members that are here on the Committee 
today. Mr. Franks, from Arizona, it is my understanding that 
you do not need to make an opening statement at this time. Is 
that correct?
    Mr. Feeney from Florida, the same? Is that correct?
    We also have been joined by two other Members who are not 
actually Members of this Committee. But Ms. Sanchez is a Member 
of the overall Committee from California. And although we 
generally don't do opening statements of those not on the 
Committee, if you would like to make a brief statement, I would 
ask unanimous consent that that be allowed.
    Ms. Sanchez. Thank you, Mr. Chairman. Actually, in the 
interest of time and getting to the witness' testimony, I would 
just ask that I be allowed to submit an opening statement for 
the record.
    Mr. Chabot. Without objection, so ordered.
    And also, I would like to recognize the attendance of Mr. 
Scott, who is not only not on this Committee, but not on the 
full Committee, either. But I would like to commend him for his 
attendance from, I think, beginning to end at the hearing we 
had the other day. Mr. Scott, of course, is from the State of 
    And I would assume there is no opening statement that you 
would like to submit this morning?
    Mr. Scott of Georgia. No, sir. Thank you for your 
graciousness and kindness. And I will just offer my statement 
for the record, in the interests of time. Thank you very much.
    Mr. Chabot. Thank you very much. So noted.
    At this time, I would, without objection, ask that all 
Members have 5 legislative days to submit additional materials 
for the hearing record. And without objection, so ordered.
    And I would like to introduce our very distinguished panel 
here this morning. Our first witness will be the Honorable 
Michael Steele, current Lieutenant Governor of the State of 
Maryland. Since taking office in 2003, Lieutenant Governor 
Steele has served as the chair of the Governor's Commission on 
Minority Business Enterprise Reform, redefining the State of 
Maryland's goals and commitments toward minority businesses in 
    Lieutenant Governor Steele also has worked closely with the 
Maryland State Police, attempting--and being quite successful, 
I understand--in reducing crime and creating safer 
    In taking office in 2003, Lieutenant Governor Steele became 
the first African-American elected to statewide office, and 
currently is the highest ranking African-American Republican 
elected official in the country. Lieutenant Governor Steele is 
married, and has two sons. And we thank you very much for your 
attendance here this morning. And I will introduce the rest of 
the panel before you begin your testimony.
    Our second witness will be Mr. Jose Garza. Mr. Garza 
currently represents the League of United Latin American 
Citizens, as a voting rights attorney. In addition to 
representing the league, Mr. Garza is a solo practitioner in 
San Antonio, Texas, and has served as the litigation director 
of Texas Rural Aid, Inc., since 1998.
    Mr. Garza has argued on behalf of victims of voting 
discrimination in a number of high-profile cases, including 
before the United States courts of appeals, and also before the 
United States Supreme Court. We welcome you very much here this 
morning, Mr. Garza.
    Our third witness will be Mr. Armand Derfner. Mr. Derfner 
has had a long and distinguished career in voting rights 
litigation, including appearing before the United States 
Supreme Court in a number of pivotal voting rights cases.
    Mr. Derfner began his career in 1965, in Greenwood, 
Mississippi, and has appeared before the Constitution 
Subcommittee, this Committee, during consideration of all three 
extensions of the Voting Rights Act. He is the author of many 
voting publications, including ``Racial Discrimination and the 
Right To Vote.'' Mr. Derfner is a former law clerk to the 
Honorable David Bazelon, Chief Judge of the U.S. Court of 
Appeals for the District of Columbia; and currently is in 
private practice in Charleston, South Carolina. We welcome you 
here, also, Mr. Derfner, this morning.
    And our fourth and final witness will be Mr. J. Gerald 
Hebert. Mr. Hebert currently works as a solo practitioner in 
Alexandria, Virginia, focusing on election law and 
redistricting. Mr. Hebert also 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 has 
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. We welcome you here, as 
well, Mr. Hebert.
    As I said, we have a very distinguished panel before us 
this morning.
    For those of you who may have not testified before the 
Committee, or just to refresh those of you that may have, we 
have a lighting system there. There are two boxes; the 5-minute 
rule. Each of the witnesses has 5 minutes, and each of the 
Members up here would have 5 minutes to question. And we try to 
keep within that as much as possible. The yellow light will 
come on when you have 1 minute, and the red light comes on when 
your 5 minutes is up. We'd ask you to try to stay within that. 
We won't gavel you down immediately, but if you can stay within 
that, please try to.
    It's also the practice of this Committee to swear in all 
witnesses. So, if you would, please, each of you please stand 
raise your right hand.
    [Witnesses sworn.]
    Mr. Chabot. All the witnesses have affirmed.
    And again, thank you very much for your testimony. And 
we'll begin with you, Lieutenant Governor Steele, at this time. 
You're recognized for 5 minutes.


    Mr. Steele. Thank you, Mr. Chairman and Members of the 
Committee. A real pleasure to be here with you this morning.
    ``The rights of citizens of the United States to vote shall 
not be denied or abridged by the United States by any State on 
account of race, color, or previous condition of servitude, and 
that the Congress shall have the power to enforce this article 
by appropriate legislation.''
    At the dawning of the 21st century, the words of the 15th 
amendment to our Nation's Constitution remind us of one of the 
most precious gifts of liberty: to freely exercise your right 
to vote.
    And yet, even the 15th amendment, on its face, did not 
guarantee that the right of citizens of the United States to 
vote would not be denied as America emerged from the fog of 
civil war and into the new reality that those individuals once 
enslaved under the Constitution were now entitled to exercise 
their rights as citizens under that same Constitution.
    It would not be long, however, before certain of the 
States, particularly in the South, responded to the enactment 
of the 15th amendment by devising a variety of tools to 
disenfranchise African-American voters for reasons of 
eligibility. From literacy tests to poll taxes, from property 
ownership to oral and written examinations, States began to 
enact laws that ultimately denied and abridged African-
Americans their right to vote.
    Moreover, when intimidation at the ballot box failed to 
curb the African-American thirst for full access to the rights 
guaranteed by the Declaration of Independence, more insidious 
and violent means, such as lynchings, fire bombs, and murder, 
were used to ``remind the Negro of his place'' in American 
society. In our society, all rights are ultimately protected by 
the ballot box, not the sword.
    By virtue of the efforts to legally circumvent the dictates 
of the 15th amendment, as well as the escalation of violence 
against African-Americans in Philadelphia, Mississippi, Selma 
and Montgomery, Alabama, the promise of the Constitution for 
African-Americans and many other minorities--full and equal 
political rights--seemed for a time like a munificent bequest 
from a pauper's estate, until the passage of the single most 
important piece of civil rights legislation in American 
history, the Voting Rights Act of 1965.
    Both Democrats and Republicans were moved to respond to 
President Johnson's voting initiative when he declared in his 
State of the Union Address, ``We shall overcome.'' With the 
leadership of individuals like Martin Luther King, Andrew 
Young, Maryland's own Clarence Mitchell, Jr., Reverend Ralph 
Abernathy, and Congressman John Lewis, laying the foundation 
for what would become an increasingly important political 
movement, Congress took up an historic challenge to end the 
blight of racial discrimination in voting which had infected 
the electoral process in parts of our country for nearly a 
    Central to the act's remedial scheme is section 5, which 
places Federal preclearance barrier against the adoption of any 
new voting practice or procedure by covered States and 
localities whose purpose or effect is to discriminate against 
minority voters. For 40 years thereafter, the Federal courts 
and the Department of Justice worked hand in hand to make this 
promise of section 5, and all the provisions of the act, a 
potent reality.
    But in an ironic twist, it has been the very success of the 
Voting Rights Act in not only protecting the right of African-
Americans to vote, but indirectly contributing to the election 
of African-Americans to both State and Federal offices, which 
now fuels in part the argument of some against its extension. 
But we should not be misled to believe that the work of 
protecting equal voting rights for all is done, just because 
those States subject to the provisions of the act now have in 
place the political infrastructure to guard against race-based 
denial of voting rights.
    Indeed, our most recent electoral history dramatizes the 
difficulties still existing in the American electoral process. 
Every 2 years, we learn of new allegations of electoral fraud 
and abuse of the electoral process, from elections in small 
municipalities to the highest-profile Federal offices.
    Consequently, it has become even more important in this 
post-civil rights age to maintain the integrity of the 
elections process. Moreover, it is just as important to 
recognize the value of section 4 of the act not just to those 
States subject to its requirements, but to those who could 
otherwise be aided by its provisions.
    For example, Maryland is not a preclearance jurisdiction, 
but is not totally unaffected by section 5 of the act. The 
preclearance process at the Department of Justice has assisted 
in illustrating discriminatory election processes and 
districting plans, and works to set a bar for the redistricting 
process and electoral process in non-covered States.
    Voting rights questions usually generate a higher degree of 
bipartisan consensus than other civil rights issues, such as 
the debates over either affirmative action or quotas. The act 
has had bipartisan support since its original enactment. 
Without true bipartisan support in the House and Senate in 
1965, it would not have passed. The last extension of the act 
in 1982 would not have occurred without bipartisan 
congressional efforts leading to the bill being signed by 
President Reagan.
    It is my hope that, as this Congress considers the renewal 
of the 1965 Voting Rights Act, that this Committee's hearing 
process, and the Senate process as well, will permit the voices 
of minority communities from across our great Nation to not 
only be heard, but listened to.
    African-Americans, Latinos, and other ethnic or racial 
minorities will not participate in an electoral system or 
process that they do not trust or in which they feel their 
votes do not count. Nor are they served by an electoral system 
or process which takes their vote for granted because it has 
become stagnant, self-serving, and monolithic.
    Our Nation has made great strides since 1965, but there's 
still work to be done. Our system is not perfect. And a failure 
to reauthorize the Voting Rights Act would be to walk away and 
leave important work unfinished. We must continue our efforts 
to ensure a fair and just voting system for all of our 
citizens. I've seen firsthand how easily a redistricting plan 
or flawed ballot process can take away the voice of a vital 
segment of our population.
    Finally, quoting one of our Nation's most famous voting 
rights advocates, Susan B. Anthony, ``In the first paragraph of 
the Declaration of Independence is the assertion of the natural 
right of all to the ballot; for how can the consent of the 
governed be given, if the right to vote be denied?''
    Thank you, Mr. Chairman, for the opportunity to testify 
before you today.
    [The prepared statement of Mr. Steele follows:]

         Prepared Statement of the Honorable Michael S. Steele

    ``The Right of Citizens of the United States to vote shall not be 
denied or abridged by the United States by any State on account of 
race, color or previous condition of servitude and that the Congress 
shall have the power to enforce this article by appropriate 
    At the dawning of the 21st Century, the words of the 15th Amendment 
to our Nation's Constitution remind us of one of the most precious 
gifts of liberty: to freely exercise your right to vote.
    And yet, even the 15th Amendment--on its face--did not guarantee 
that the ``right of citizens of the United States'' to vote would not 
be denied as America emerged from the fog of civil war and into the new 
reality that those individuals once enslaved under the constitution 
were now entitled to exercise their rights as citizens under that same 
    It would not be long, however, before certain of the states, 
particularly in the south, responded to the enactment of the 15th 
Amendment by devising a variety of tools to disenfranchise African 
American voters for reasons of ``eligibility''. From literacy tests to 
pole taxes, from property ownership to oral and written examinations, 
States began to enact laws that ultimately ``denied and abridged'' 
African Americans their right to vote.
    Moreover, when intimidation at the ballot box failed to curb the 
African American thirst for full access to the rights guaranteed by the 
Framers of the Constitution, more insidious and violent means such as 
lynchings, fire bombs and murder were used to ``remind the Negro of his 
place'' in American society. In our society, all rights are ultimately 
protected by the ballot box, not the sword.
    By virtue of the efforts to ``legally'' circumvent the dictates of 
the 15th Amendment as well as the escalation in violence against 
African Americans in Philadelphia, Mississippi, Selma and Montgomery 
Alabama the promise of the Constitution for African Americans and many 
other minorities--full and equal political rights--was like a 
munificent bequest from a pauper's estate until the passage of the 
single most important piece of civil rights legislation in American 
history: the Voting Rights Act of 1965.
    Both Democrats and Republicans were moved to respond to President 
Johnson's voting initiative when he declared in his State of the Union 
Address ``we shall overcome''. With the leadership of individuals like 
Martin Luther King, Andrew Young, Maryland's own Clarence Mitchell, 
Jr., Reverend Ralph Abernathy and Congressman John Lewis laying the 
foundation for what would become an increasingly important political 
movement, Congress took up an historic challenge to end the ``blight of 
racial discrimination in voting . . . [which had] infected the 
electoral process in parts of our county for nearly a century.''
    Central to the Act's remedial scheme is Section 5 which places a 
federal ``pre-clearance'' barrier against the adoption of any new 
voting practice or procedure by covered states and localities whose 
purpose or effect is to discriminate against minority voters. For 40 
years thereafter, the federal courts, and the Department of Justice 
worked hand-in-hand to make this promise of Section 5 a very potent 
    But, in an ironic twist it has been the very success of the Voting 
Rights Act in not only protecting the right of African Americans to 
vote, but indirectly contributing to the election of African Americans 
to both State and Federal offices which now fuels, in part, the 
argument of some against its extension. But we should not be misled to 
believe that because that those States subject to the provisions of the 
Act now have in place the political infrastructure to protect and guard 
against race based denial of voting rights, whether intentional or 
    Indeed, our most recent electoral history, dramatizes the 
difficulties still existing in the American electoral process. The 2000 
and 2004 presidential elections, along with countless local and state 
elections remain subject to allegations of abuse, fraud and civil 
rights violations.
    Consequently, it has become even more important in this post-Civil 
Rights age to maintain the integrity of the election process. Moreover, 
it is just as important to recognize the value of the Act not just to 
those States subject to its requirements, but to those who could 
otherwise be aided by the pre-clearance process. For example, Maryland 
is not a pre-clearance jurisdiction but is not totally unaffected by 
Section 5 of the Act. The pre-clearance process at the Department of 
Justice has assisted in illustrating discriminatory election processes 
and districting plans and works to set a bar for the redistricting 
process and electoral process in non-covered states.
    Voting Rights questions usually generate a higher degree of 
bipartisan consensus than other civil rights issues, such as the 
affirmative action or quota debate. The Act has had bipartisan support 
since its original enactment. President Lyndon Johnson deserves great 
individual credit for proposing and signing the Act; yet, without true 
bipartisan support in the House and Senate in 1965, it would not have 
passed. The last extension of the Act in 1982 would not have occurred 
without a bipartisan congressional effort leading to the bill signed by 
President Reagan.
    It is my hope that as this Congress considers the renewal of the 
1965 Voting Rights Act that this committee's hearing process and the 
Senate process as well, will permit the voices of minority communities 
from across our great nation to not only be heard but listened to. 
African Americans, Latinos and other ethic or racial minorities will 
not participate in an electoral system or process that they do not 
trust or in which they feel their vote does not count. Nor are they 
served by an electoral system or process which takes their vote for 
granted because it has become stagnant, self-serving and monolithic.
    Quoting one of our nation's most famous Voting Rights advocates, 
Susan B. Anthony: ``in the first paragraph of the Declaration [of 
Independence], is the assertion of the natural right of all to the 
ballot; for how can `the consent of the governed' be given if the right 
to vote be denied?''

    Mr. Chabot. Thank you very much, Lieutenant Governor 
    Mr. Garza, you are recognized for 5 minutes.


    Mr. Garza. Mr. Chairman, Members of the Committee, first, 
let me thank you for inviting me to participate in this very 
important process for justifying the reenactment of the Voting 
Rights Act and its special provisions.
    The emphasis of my presentation today will be on the record 
that we have discovered throughout our litigation process, as 
it relates to the Latino community. The history of 
discrimination is well documented with regard to the overall 
history of the Nation. I think that one of the important things 
that we need to focus on is that a lot of the same sorts of 
activities that occurred throughout the South occurred in 
Texas, but was targeted to the Mexican-American community.
    For instance, it's documented through our process, through 
our litigation that we've done, that the ``White man'' primary 
that was enacted in Texas was aimed at the Mexican-American 
community. And in the Winter Garden areas and in other areas of 
Texas, the Mexican-American people were not allowed to vote in 
the primary, but then were allowed to vote in the general 
election, after the election had been determined.
    Through our litigation--this is not a comprehensive 
presentation that I'm going to be making; but rather, 
anecdotal, from the litigation experience that we've done. In 
the City of Corpus Christi, when we did a section 2 lawsuit in 
1982, we discovered through a review of the minutes and of the 
history of Corpus Christi that there had been severe 
segregation for Mexican-Americans and African-Americans. 
Theaters were segregated so that Mexican-Americans and African-
Americans were relegated to the balcony. Schools were 
segregated in Corpus Christi, and throughout Texas.
    In the Sherryland Independent School District, the lawsuit 
that we did in 1982, we had testimony of the maintenance of a 
Mexican school, as well as an Anglo school. And the testimony 
was--is that the Mexican-American children would ride the 
school bus, and would be dropped off at the elementary school, 
and then herded onto a flatbed truck, and then driven off to a 
Mexican school. And review of the minutes and of the records of 
the school district found that there was severe under-funding 
of the Mexican school.
    And so we have that historical discrimination in Texas, as 
we have uncovered through the number of lawsuits that we've 
done. But many of these things were ongoing into the '80's. In 
1984, we did a lawsuit against the City of Taft, which is a 
small farming community outside of Corpus Christi on the coast 
of Texas. And we found that in 1984, the City of Taft 
maintained a cemetery that had been donated to the City of Taft 
by the Ku Klux Klan. And that cemetery was segregated, so that 
Anglos would be buried on one plot, Mexican-Americans would be 
buried in a different plot, and then African-Americans in still 
a third plot.
    And we drove through that cemetery, and we found that on 
the Anglo side of the cemetery it was manicured, had what they 
call ``carpet grass,'' had a sprinkler system. And across a 
dirt road was where the Mexican-American and the African-
American cemeteries were, and those were overrun with weeds, 
the headstones had been knocked over, and some of the graves 
were unmarked.
    Now, this wasn't in 1954. This wasn't in 1964. This was 
1984. And this was a cemetery that was run by the City of Taft. 
It wasn't a private institution. It was a city-run, government-
run cemetery.
    In that same town, the county health officer maintained a 
clinic. And in that clinic he had segregated waiting rooms, in 
1984: one waiting room for Anglos, and another waiting room for 
African-Americans and Mexican-Americans.
    So the history of discrimination, the sorts of things that 
make it difficult for the minority community to participate in 
the electoral process, we found overwhelming evidence that 
those sorts of things that we traditionally know about that are 
used to discriminate against people were also used to 
discriminate against Mexican-Americans in Texas.
    Now, one of the things that we did in 1979 as part of a 
coalition of civil rights--Hispanic civil rights groups in 
Texas, the LULAC and Mexican-American Legal Defense Fund and 
others, is that we did a survey of county elected offices 
throughout the State.
    We surveyed over 200 counties. And each one of those 
counties in 1979 we found had been gerrymandered--gerrymandered 
so that it was not in compliance with the Voting Rights Act, 
not in compliance with ``one person, one vote''; and in many 
instances, diminished or prevented the election of Mexican-
Americans to the governing board.
    After a series of lawsuits, and with the aid of section 5 
and the ``one person, one vote'' provision, we were able to 
almost double the number of county commissioners elected in 
Texas. And that campaign went on through the mid-'80's.
    Today, the need for section 5 continues. Racial bloc 
voting, which is a primary obstacle to an unencumbered 
participation by the minority community, is still alive and 
well in Texas. This year, we had a Mexican-American candidate 
run for mayor of the City of San Antonio, against an Anglo 
candidate for mayor of the City of San Antonio. The Anglo 
candidate won, and the racial bloc voting was extremely severe.
    In our experience in Texas, LULAC and MALDEF and others, 
we've found that the words of Frederick Douglass come into play 
in matters of--``Power gives nothing without demand.'' And 
without the Voting Rights Act and without litigation, minority 
representation in Texas would be abysmal. Thank you.
    [The prepared statement of Mr. Garza follows:]

                    Prepared Statement of Jose Garza

    Mr. Chabot. Thank you very much, Mr. Garza.
    Mr. Derfner, you are recognized for 5 minutes.

                        ALTMAN & WILBORN

    Mr. Derfner. Thank you very much, Mr. Chairman. It's an 
honor and a privilege to appear here again, to try to help this 
Committee in its crucially important work. And I thank the 
Committee and the Members for their dedication to this task.
    My experience, or my work with the Voting Rights Act does 
go back, as the Chairman was kind enough to note. I'll be 
talking here today about what I've learned in that period; but 
especially about what I've learned in the most recent times. 
Because even today, 40 years later, in the 21st century, I'm 
still dedicated to the same tasks that the Committee is 
focusing on.
    And I should mention that, although I live in South 
Carolina and most of my work today is in South Carolina, I also 
work, and have worked, in many of the other covered 
jurisdictions; have been involved in cases in Mississippi, 
Alabama, Louisiana, Virginia, Georgia, Florida, and several of 
the other States.
    What that experience has told me is how important the 
Voting Rights Act--the Voting Rights Act has been called the 
most successful civil rights act ever passed, and that's 
clearly true. It's true for several reasons.
    Not only did it end disfranchisement and total denial of 
the right to vote in the South, and eventually in the Southwest 
and other areas; but it also has shown a remarkable capacity to 
grow, to anticipate additional problems, new problems that came 
up. And that has been principally through the mechanism of 
section 4.
    In the Voting Rights Act, Congress essentially said, ``We 
know there are problems out there. We are going to deal now 
with the problems that we can identify. But we are going to 
pass a statute focusing on section 4 that will be capable of 
adapting to new problems, because we know that when we 
eliminate the problems of today, new problems will crop up.''
    And so, in that respect, section 4 has been the mechanism 
for keeping the voting rights alive, vibrant, and dynamic; and 
through it, some of the other key provisions: section 5, the 
preclearance provision; sections 6, 7, and 8, dealing with 
Federal examiners and observers; and indirectly, section 203, 
dealing with the rights of language minority voters to 
assistance in casting their votes.
    Because these provisions are temporary, it has been 
necessary for Congress to reconvene periodically to consider 
reauthorization, as you are doing today. That's a very healthy 
thing, frankly, for a body politic to do, to take a look and 
see if the laws of yesterday are still needed today.
    What this Congress has learned and this Committee has 
learned each time in the past is that, yes, in fact, although 
there's been major progress, the problems also continue; and 
therefore, each time, Congress has said, ``Don't stop now.'' 
And indeed, Congress has said on each of the prior occasions 
that it could see new problems, or new nuances. And so each 
time the law has not only been reauthorized, but has been 
brought up to date by amendments or modifications to deal with 
newly emerging problems.
    I think you will find that the same thing is true today. 
And without going into detail, I would just refer the Committee 
to my statement in which I talk about some of the things that I 
have been involved in personally, just in my own little corner 
of the Nation, in South Carolina. And this is just in the past 
decade or two; so we are not talking about the distant past.
    And if you'll take a look, what I talk about are instances 
of manipulating municipal boundaries to fence some citizens 
out--basically, minority citizens; moving a registration office 
to a less convenient location; campaigns by private citizens to 
intimidate Black voters. The list goes on and on. And the 
things that we used to see all the time, we still, 
unfortunately, see.
    Some of these are purposeful, without question; some of 
them may not be. But the bottom line is still the same, that 
it's the minority voters who get hurt, and our body politic is 
    I want to focus just on two particular things that I think 
tell more than anything else what the problems are today, and 
how telling they are. And so the first one, if you have a 
chance, if you have my statement, attached to my statement is 
an ad that ran in an election about a dozen years ago, between 
a White and Black candidate for probate judge of Charleston 
    And you can see, it was the White candidate's ad. And what 
he printed was a picture of himself and a picture of his Black 
opponent, making it very clear to every voter there--especially 
every White voter--just who was White and who was Black. And as 
campaigners yourself, you know you never publish your 
opponent's picture or give him or her publicity, unless you 
want to publish it to show something bad. And this White 
candidate knew that in our community racial discrimination 
sells, and the way to win elections is to divide the races.
    The other indication is another exhibit that I brought. And 
this is a very recent case that just ended earlier this year, 
the case of United States v. Charleston County, in which the 
Justice Department and myself and other lawyers representing 
private litigants fought a 4-year battle to overturn the 
discriminatory election method in Charleston County.
    We won, and as soon as we won, that case--the legislature 
adopted the exact same method for the school board. And if it 
had not been for the Justice Department's objection under the 
Voting Rights Act, if it had not been for the Voting Rights 
Act, we'd be back in court again. A clear indication of the 
value and importance of the act.
    In conclusion--and again, I say there are many more 
examples in my statement--you will, in these hearings, as the 
days go forward, hear many tales of progress. And that's a 
wonderful thing. But you'll also hear continuing problems. And 
what we'll hear is that--and I know this--that the Voting 
Rights Act and section 4 and the special provisions that it 
brings have been vital to that progress.
    Continuation of the act is vital to continuation of the 
progress. And so my message to you today is: Don't stop now. 
Thank you very much.
    [The prepared statement of Mr. Derfner follows:]

                  Prepared Statement of Armand Derfner

    Mr. Chairman and members of the subcommittee, thank you for the 
opportunity to appear and testify concerning the critically important 
legislation before you. I have had the privilege of testifying before 
this subcommittee many times about the Voting Rights Act, going back to 
my first time more than 30 years ago. I have always known that the 
right to vote will be vigorously protected by this subcommittee, and I 
note that the current Chair of the full Committee, Rep. Sensenbrenner, 
was a strong champion of the Voting Rights Act at the time of the last 
extension in 1982.
    The Voting Rights Act was passed on August 6, 1965, against a 
background of ninety years of failure to enforce the Fifteenth 
Amendment. The original heart of the Voting Rights Act was Section 4, 
which suspended literacy and understanding tests, and similar devices, 
in certain ``covered jurisdictions,'' mostly in the Deep South.
    The suspension of the tests was for five years. During the five 
years, other remedies were in play, all based on the coverage formula, 
or ``trigger'' contained in Section 4 of the Act, which was codified at 
42 U.S.C. Sec. 1973b. The most important of which was Section 5, the 
preclearance provision. In 1965, Congress knew that in the past, 
whenever one type of discrimination had been blocked another had sprung 
up to take its place, sometimes within twenty-four hours. Section 5 was 
Congress's answer to this problem. Section 5 simply provided that in a 
covered jurisdiction, no change in any voting law or procedure could be 
enforced until the change had been precleared by the jurisdiction 
through either a three-judge U.S. District Court in the District of 
Columbia or the Attorney General. In order to gain preclearance, the 
covered jurisdiction would have to show that its proposed change was 
not discriminatory in purpose and not discriminatory in effect. Section 
5 was deliberately drawn as broadly as possible, to cover changes that 
could affect voting even in a minor way, because although Congress was 
confident that there would be widespread attempts to evade the Voting 
Rights Act, it could not predict exactly what forms those evasions 
would take
    In addition to the preclearance remedy of Section 5, Section 4 
coverage also triggered oversight of the local registration and 
election process by authorizing the United States Department of Justice 
to send federal registration examiners and election observers to the 
covered jurisdiction.
    There were several provisions of the new Voting Rights Act that 
were not limited to covered jurisdictions; the one that came to be most 
important was Section 2, which generally barred discrimination in 
voting on account of race.
    The initial focus of efforts under the Act was on registration and 
voting, through suspension of literacy tests. By 1970, as the initial 
five-year special coverage period was winding up, the literacy test 
suspension had resulted in registration of an estimated one million new 
black voters in the covered states.
    On the other hand, as black citizens overcame barriers to 
registering and casting ballots, new barriers were being erected to 
insure that, while blacks might vote, their favored candidates couldn't 
win. Congress's faith in the ingenuity of those who had been relying on 
discriminatory literacy tests was being quickly rewarded. A 1968 report 
of the Civil Rights Commission perceptively reported a sharp growth in 
vote dilution techniques as new methods of voting discrimination. The 
report specifically singled out redistricting measures, shifts to at-
large elections, and changes in local government boundaries.
    The other temporary remedies went through similar evolutions. Thus, 
the need for federal examiners under Sections 6 and 7 declined as 
registration barriers largely disappeared, but the need for federal 
election observers under Section 8 increased as the focus of efforts 
shifted from registration office difficulties to Election Day problems.
    Rejecting the argument that Section 5 should be limited to measures 
directly affecting the right to register and to cast a ballot, the 
Supreme Court in 1969 held that the broad reach of Section 5 covered 
these changes in ``systems of representation'' because, as the 
reapportionment cases recognized, ``the right to vote can be affected 
by a dilution of voting power as well as by an absolute prohibition on 
casting a ballot.''
    The trends perceived by the Civil Rights Commission in 1968 were 
the beginning of an epidemic of dilution methods in the covered 
jurisdictions. In fact, of the 1300+ changes to which the Attorney 
General has objected to date, the vast majority have involved changes 
in representational systems, or, to put it in plainer terms, 
gerrymanders and related tactics: redistricting; changes to at-large or 
multimember districts; annexations superimposed upon at-large election 
systems; majority-runoff requirements; and anti-single-shot methods 
such as full-slate laws and numbered places. Since an objection is the 
equivalent of a court injunction, the large number of objections shows 
how central the role of preclearance is in guarding the right to vote.
    Furthermore, well over half of the objections have come since the 
last reauthorization of the Act in 1982, which makes it plain that the 
problem has not receded, and the need for preclearance continues today.
    The story of the Voting Rights Act did not end in 1965; it was just 
beginning. Because of its effectiveness in checking the growth of vote 
dilution and the demonstrated need to continue its protections, 
Congress extended Section 5 for five years in 1970, and for seven more 
years in 1975. Both of the extensions in 1970 and 1975 were marked by 
vigorous debate in Congress and by extensive hearings and reports 
documenting the continuing abuses that justified the continued need for 
the preclearance remedy. Increasingly, these abuses fell in the area of 
vote dilution; and the 1975 hearings, reports, and floor debates are 
especially filled with account after account of gerrymandering, 
discriminatory at-large elections, improper municipal annexations, and 
similar methods that too often proved effective in keeping the newly 
registered black voters from exercising their votes effectively. The 
administrative record under Section 5 demonstrated, though, that 
effective weapons against dilution could be developed.
    The actual mechanism of the extension was by amending and expanding 
Section 4's coverage trigger, which had the effect of continuing 
Section 5 (and Sections 6-8), and expanding their reach to include new 
jurisdictions under an expanded coverage formula.
    The 1975 amendments also added a new dimension to the Voting Rights 
Act, in the form of provisions designed to protect certain language-
minority voters (American Indian, Asian American, Alaskan Native, and 
Spanish-heritage) from discrimination. The key new provision, which is 
temporary, required bilingual assistance in some areas where language-
minority voters are highly concentrated. In addition, a clause was 
added to Section 2--the general ban on voting discrimination--
prohibiting voting discrimination on account of language-minority as 
well as on account of race.
    In 1982, the temporary provisions were extended again, both the 
preclearance provisions of Section 5 and the language assistance 
provisions of Section 203. The extension was accomplished, as in 
earlier times, by amending Section 4, which contains the coverage 
formula or ``trigger.'' The temporary provisions whose application is 
``triggered'' by Section 4 coverage include not only Section 5 
(preclearance) but also Sections 6, 7 and 8 (federal examiners and 
election observers). (Also, of course, in 1982, Congress amended 
Section 2 to provide that existing voting schemes would be invalid if 
they ``result'' in discrimination without the heavy burden of proving 
discriminatory purpose.)
    The 1982 extension was for 25 years. It was accomplished by 
specifying that period in the trigger formula of Section 4(a)(8) of the 
Act, which is now codified at 42 U.S.C. Sec. 1973b(a)(8). This was 
obviously a much more realistic view of how long it might take to 
overcome voting discrimination. In a Nation where slavery lasted for a 
quarter of a millennium, where another century went by with racial 
segregation in full force before the Voting rights Act, where, in other 
words, the Voting Rights Act sought to change nearly 20 generations of 
human behavior, the problem could certainly not be solved in 5 or 10 or 
17 years.
    Indeed, I do not assume that the Congresses of 1965, 1970 or 1975 
thought they were solving the problem of voting discrimination once and 
for all. Rather, they were acting judiciously and cautiously to apply 
an appropriate remedy for a limited time period, and calling for a 
review at the end of that period to see if conditions had changed 
sufficiently to end the statute. Each time before now, that review has 
led Congress to decide that the time had not yet arrived to end the 
statute. In fact, each time Congress has held extensive hearings and 
compiled a detailed record of continuing problems not only justifying 
extension of Section 5 and the other temporary provisions but adding 
new remedies to address newly recognized problems. Two prime examples 
are the permanent elimination of literacy tests nationwide--achieved in 
two steps in 1970 and 1975--and the amendment of Section 2 to adopt a 
``results'' standard for proving discrimination.
    Another preeminent example of Congress' strengthening of the Act to 
respond to new challenges is the addition of provisions protecting 
language minority citizens, both by expanding the trigger formula in 
section 4 and by enacting section 203 to provide assistance to language 
minority voters at all stages of the voting process. So too with the 
addition of section 208 in 1982, which allows voters who need 
assistance--including elderly and handicapped voters--to receive 
assistance from a person of their choice.
    Each time Congress has reviewed the Voting Rights Act in the past, 
it has been a learning experience for Congress and for the entire 
Nation. The Act has fulfilled its role as a dynamic piece of 
legislation not only designed to deal with existing problems, but also 
well adapted to grow to meet new abuses as they arose. It is precisely 
this ability of the Voting Rights Act to ``head off new problems at the 
pass'' that has continued to give it such vitality. Today this 
subcommittee has the opportunity and obligation to continue the Act's 
protections as we face new problems in the unending quest to guarantee 
the fully equal right to vote to all.
    These hearings represent a new visit by Congress to this arena, and 
based on my experience observing elections and voting since the 1982 
extension, I believe Congress will come to the same conclusion in or 
before 2007 as it has on its previous reviews: it is not time yet to 
abandon the course.
    I practice law in Charleston, South Carolina, and I have studied 
voting and elections not only there but elsewhere in my state and in 
the surrounding states. I know that the need for Section 5 is still 
there and I would like to tell you some of what I have seen that tells 
me so. This will be only one person's experience, and I am sure you 
will hear in the coming weeks from others who have detailed accounts of 
problems in other areas.
    I also know there has been great progress, and I would not deny 
that for a moment. But we started so far down that even with great 
progress we have too far to go to be ready to abandon a protection that 
is responsible for much of the progress.
    Let me talk to you briefly about five sets of cases I have 
personally been involved in my home state during the past two decades. 
This is not ancient history: if I wanted to go into ancient history, 
i.e., back into the 1950's or even the 1960's and 1970's, I would be 
here all day. Rather, what I will talk about happened in the time since 
the 1982 extension, indeed a lot of it in this very decade--the 21st 
    I should also emphasize that my state is not alone. I do not 
believe South Carolina legislators or officials are more likely to do 
things that require the protection of the Voting Rights Act than their 
counterparts in other nearby states. On the contrary, my experience 
tells me that my state is on the same wave length as other 
jurisdictions covered by Section 5, and that those other covered states 
need Section 5 just as much as my state.
    The problems I will talk about are some of the same types of 
problems we encountered in earlier times--but they are still with us.
    First, one of the problems that has plagued voters is manipulation 
of city boundaries to maintain white control. This was the trick in 
Tuskegee, Alabama, that produced the famous 1960 Supreme Court case of 
Gomillion v. Lightfoot. A few years later, one of the earliest Supreme 
Court cases under the Voting rights Act was Perkins v. Matthews, in 
1971, a case of mine in which Section 5 blocked the city of Canton, 
Mississippi from carrying out an annexation that added new white 
residents to offset growth in black voting registration.
    The problem continues. In 1987 I brought a lawsuit against the city 
of Orangeburg, South Carolina, for the same thing. Orangeburg was once 
a round town, that is, it had been formed, like many cities, by drawing 
a circumference from a center point. As black voting grew, however, the 
town officials responded by a series of annexations that turned the 
town border into a jagged design of the most irregular shape. Our 
lawsuit resulted in a decision which allowed the annexations but 
minimized their discriminatory effect by changing from at-large 
elections to elections by fairly drawn districts or wards. A similar 
lawsuit in Hemingway, South Carolina, also blocked that city's 
annexations, and the discriminatory nature of those annexations was 
plainly shown when the city decided that rather than annex nearby areas 
of black residents, it would simply undo the annexations of white 
people. In other words, if it could not carry out its discriminatory 
design, it had no use for these annexed areas.
    A second type of problems frequently encountered is harassment of 
poor or black voters at the polls. In a 1990 election for Probate Judge 
of Charleston County, a black candidate faced a white candidate. There 
was widespread intimidation of black voters at rural polling places, 
especially black voters who needed assistance because they were old, 
infirm or not fully literate. (And, by the way, it is no shame to need 
help with casting a vote in our elections: if you saw some of the 
Constitutional referendums on our ballot, you would need a Ph.D. to 
read them or make heads or tails out of them.)
    Despite the attempts to suppress black voting, the black candidate, 
Bernard Fielding, won that election. However, the State Election 
Commission, acting on unverified complaints from some of the same 
people who had tried to intimidate the black voters, set the election 
aside. We had to appeal to the South Carolina Supreme Court, which 
fortunately upheld Fielding's election. One of the other features of 
that campaign was the white candidate tactic of running an ad with his 
black opponent's picture, to make sure that every white voter knew 
exactly who was white and who was black.
    That was not the last time we have seen intimidation of voters. In 
a trial in 2002, which I will discuss in a few minutes, there was 
testimony that attempts to intimidate black voters continues as a 
frequent tactic.
    We also have problems sometimes recognizing laws of the land that 
protect voting rights. When you passed the National Voter Registration 
Act in the mid-1990's (``Motor Voter law''), our then Governor simply 
announced that the law did not apply in South Carolina, and our then-
Attorney General went to court to defend South Carolinas right to 
ignore the law. Again, fortunately, the court--this time a federal 
court--put a stop to that nonsense. The bill to the state, by the way, 
was $150,000 in attorneys' fees to us, not counting the cost of the 
State's own lawyers including a special private counsel retained to 
augment its Attorney General's staff.
    The presence of pervasive racial polarization among voters has not 
abated. Studies by experts on all sides, including experts hired by the 
State, and repeated judicial decisions, have highlighted the continuing 
phenomenon. It is not just in elections here and there, but throughout 
our State. In the most recent statewide redistricting case, a three-
judge court took extensive note of the persistence of racially 
polarized voting, and how it affects the fundamental right to vote. 
Among the court's findings, it said ``the history of racially polarized 
voting in South Carolina is long and well-documented,'' and the court 
cited the ``disturbing fact'' that there has been ``little change in 
the last decade.'' These findings echoed earlier findings. In fact, I 
am not aware of any one of the dozens and dozens of voting lawsuits in 
our state in which any single expert has ever said we do not suffer 
from racially polarized voting.
    Going from the large-scale to the intensely local, even the most 
minor, seemingly innocuous changes can be fraught with problems that 
hinder voters. Last year, in Charleston County, the registration 
office--which is also the location for ``early absentee voting'' and 
resolving election day registration disputes--was moved from a central 
location, well served by bus lines and adjacent to other government 
offices--including public assistance agencies--to a remote location 
nearly half a mile from the nearest bus service. What does that mean if 
you don't have a car, especially if you are a minority voter--who 
disproportionately don't own cars?
    Perhaps the most notable case is a case that is hot off the 
presses--a case that started in 2001 and ended with a Supreme Court 
order less than a year ago. This case involved the method of electing 
the County Council in Charleston County. The County Council members 
were elected from nine separate districts until 1969, when there was a 
sudden change to at-large elections for the nine members.
    Unfortunately, when that change took place in 1969, it was 
precleared under Section 5. The reason is not entirely clear, but that 
was in the infancy of Section 5 and it was before the Supreme Court had 
highlighted the dilutive effects of at-large elections.
    In any event, in 2001 the U.S. Department of Justice, along with a 
group of individual voters, brought a lawsuit to challenge the at-large 
elections as racially discriminatory. I was privileged to be one of the 
lawyers representing the plaintiffs in that case. The case was tried 
for six solid weeks in 2002, and it resulted in a sweeping decision 
overturning the at-large elections on the ground that system 
discriminates against black voters on account of their race. The court 
issued a 75-page opinion analyzing in minute detail what the role of 
race has been and continues to be in our elections. Much of the 
evidence supporting the decision came from the County's own expert 
witness. The decision is a virtual primer about corrosive voting 
discrimination in my state and my county today, in the 21st century.
    Let me outline a few of the things this case tells us. First, there 
is severely racially polarized voting, meaning that white voters rarely 
vote for candidates favored by black voters, especially if those 
candidates are black themselves. This was based on analysis not of old 
elections, but elections during the past 15 years, by experts for all 
    This pattern has had a predictable result. In a county with a 
population more than one-third black, only three of the 41 people 
elected to County Council since 1970 were minority, including only one 
in the last decade. In that last decade, all nine black candidates 
supported cohesively by black voters were defeated in the general 
elections, as well as 90% of the 21 preferred candidates of whatever 
race. For example, black voters did best in 1998, but even in that 
year, the two white candidates they supported won but the two black 
candidates they supported lost.
    Nor were these results accidental. In addition to demographic 
factors that are relevant in judging voting discrimination, there was 
powerful evidence of intimidation and harassment of blacks at the polls 
during the 1980s and 1990s and even as late as the 2000 general 
election. There was also evidence of race baiting tactics used by 
political strategists.
    Perhaps the most telling sign of voting discrimination in 
Charleston County elections was the Court's finding that racial appeals 
of a subtle or not-so-subtle (i.e., overt) nature were used in election 
campaigns. The most telling of these examples were white candidates 
running ads or circulating fliers with photos of their black 
opponents--sometimes even darkened to leave no mistake--to call 
attention to the black candidates' race in case any white voter 
happened to be unaware of it.
    This tactic is the surest sign of an atmosphere where voting 
discrimination flourishes; in locales where the tactic is used, this 
tactic says local politicians know race ``sells,'' and that is why they 
use it. How much more would they use race to buy and sell elections if 
the Voting Rights Act were not in place?
    After the district court's decision, the County nevertheless 
appealed, and the decision was resoundingly affirmed by the Fourth 
Circuit in an opinion by Judge J. Harvie Wilkinson. Still the County 
did not give up, but petitioned the U.S. Supreme Court, which refused 
to hear the case, and it finally ended with a new system designed to 
provide equal rights to all voters of all races.
    One important note: the County spent over $2,000,000 of taxpayers' 
money in its defense of the discriminatory method of electing County 
Council members.
    Another telling note: the Charleston County School Board has an 
election method that is similar but not identical to the County 
Council. While the County Council case was going on, the South Carolina 
General Assembly, led by legislators from Charleston County, tried to 
change the school board method to adopt the most discriminatory 
features of the County Council. The then-Governor vetoed the first 
attempt, but the General Assembly tried again--even after the method 
had already been thrown out by the federal court. This time, the new 
Governor signed this discriminatory bill. Fortunately, Section 5 of the 
Voting Rights Act covered this voting change and when it was presented 
for preclearance under that Section, preclearance was denied. If 
Section 5 had gone out of existence, this bill would have become law 
even though its precise twin had already been found to be racially 
    I cannot imagine clearer proof of the need to extend the trigger of 
Section 4 of the Voting rights Act so that Section 5 and other 
``temporary provisions'' will continue to protect voters.
    Striving for full equality in all areas especially the right to 
vote, is an obligation for every American. When we have such an 
effective protection in the form of the Voting Rights Act, we should 
not rush to abandon that protection prematurely simply in the hope that 
equality will come.
    Finally, I want to say a word about the Constitution. I realize 
that Congress is not the only branch of government that will consider 
the Voting Rights Act, and I know there has been speculation about 
whether continuing the section 4 trigger will still be constitutional. 
I have no doubt that doing so is constitutional. I litigate in other 
covered states as well as South Carolina, and am familiar enough with 
some of those states to be confident that the record presented to you 
in these hearings will show that the types of problems I have outlined 
here are widespread in the covered jurisdictions. Based on the record I 
expect you will see, there will be ample justification for continuing 
to provide special remedies in the covered jurisdictions, based on the 
eminently rational and well-tailored coverage formula of the section 4 
trigger. Moreover, while section 4 contains the trigger that imposes 
the special remedies, section 4 also contains a carefully tailored 
bailout, described by my fellow witness Mr. Hebert, which is 
essentially a ``reverse trigger'' that a covered jurisdiction can use 
to end coverage. With a rational coverage formula, with a record 
continuing to justify that formula, and with a nuanced bailout in 
place, the Voting Rights Act is exactly the kind of congruent and 
proportional remedy that satisfies the Constitution.
    Thank you. Again, I salute the Members and the excellent staff for 
placing this crucial issue in the limelight. I would be pleased to 
answer any questions.


    Mr. Chabot. Thank you very much, Mr. Derfner.
    Our final witness this morning will be Mr. Hebert. And 
you're recognized for 5 minutes.


    Mr. Hebert. Thank you, Mr. Chairman. Chairman Chabot, 
Representative Nadler, and distinguished Committee Members, 
thank you for the opportunity to appear before you today. I'll 
focus my comments on the bailout provisions of the Voting 
Rights Act, but I would at least like to put them in one broad 
context; which is that I do support an extension of the act, 
and I believe the bailout provisions, as they presently exist, 
are largely working.
    I'm also here today in my capacity as legal counsel to a 
number of the jurisdictions that have already bailed out, or 
are in the process of bailing out; including, among others, 
Augusta County, Virginia, and Kings County, California.
    Now, we know that the Voting Rights Act is the crown jewel 
of civil rights. What we saw prior to 1965 is that case-by-case 
approach to voting discrimination problems was not working. So 
Congress took a unique and fresh approach, by enacting the 
preclearance provisions of the Voting Rights Act, which set up 
a means by which jurisdictions that were subject to a certain 
coverage formula, and therefore are called covered 
jurisdictions, would be required to submit voting changes for 
    Now, the jurisdictions at that time could also bail out 
from coverage under the Voting Rights Act. And indeed, between 
1965 and '70, several of them did. And what they had to do to 
bail out at that time was they had to show that they had used 
no test or device--meaning like a literacy test, a poll tax, 
and so on--in a discriminatory manner for at least 5 years.
    Well, as of 1965, most of the covered jurisdictions were 
not able to meet that test, of course, because they had used 
literacy tests and poll taxes and other tests or devices in a 
discriminatory way for 5 years. And they also met the other 
part of the coverage formula, that less than 50 percent of 
their voting-age population was registered, or less than 50 
percent had turned out to vote.
    Political subdivisions at that time were not allowed to 
bail out, either. If you were a political subdivision within an 
entirely covered State--like Virginia, for example, my home 
State--and you wanted to bail out, the State was the only 
entity that could bail out in a complete covered State.
    There were some States, as there are now, where you only 
had certain parts of the State that were covered. 
Representative Conyers mentioned his home State of Michigan, 
where they have a couple of townships, for example, that are 
still covered. In jurisdictions like that, that are in a State 
that's only partially covered, the political subdivisions could 
bail out.
    Between 1965 and '70, Alaska, three counties in Arizona, 
Elmore County, Idaho, and Wake County, North Carolina, all 
bailed out. Nash and Gaston County, Representative Watt, were 
not allowed to bail out. The Justice Department opposed that in 
those early years.
    In 1970 to '75, when Congress extended the act again, you 
had a couple of jurisdictions. The State of Alaska bailed out, 
as did the State of New York. And New York ended up getting 
recovered under the Voting Rights Act, when it was found that 
they had in fact used a test or device in a discriminatory 
    And my home State of Virginia in 1974 sought a bailout. And 
they were denied a bailout because there was evidence that the 
setting up of inferior schools for minority voters in fact 
disabled minority voters from passing the literacy test. And so 
therefore, the literacy test in Virginia had a discriminatory 
impact, and they did not meet the bailout provisions.
    Now, Congress in 1982 dramatically changed the bailout 
provisions. And I'll move quickly through this, but 
essentially, as a result of the '82 amendments, in the last 25 
years you've now had a bailout standard that is totally 
different, and not focused on a time limit of 5 years showing a 
non-discriminatory test or device or so on.
    Instead, you have to show that within the last 10 years you 
have used no test or device; that there have been no final 
judgments or settlements that you've entered into as a 
jurisdiction because it's been alleged that you discriminated 
on the basis of race, color, or membership in a language 
minority group in your voting and election practices; that 
there haven't been any Federal examiners assigned to your 
jurisdiction; that you've timely submitted all the voting 
changes to the Justice Department for preclearance; that the 
Justice Department has not objected to any of your changes, or 
the D.C. court denied any of your changes.
    That's what you have to show over a 10-year period. And 
quite frankly, for nearly, I would say, 90 percent of all the 
covered jurisdictions today, they could show at least that 
    Now, you also have to show when you're seeking the bailout 
that, if you've had any dilutive procedures, that you've in 
fact, in your voting system--that you've eliminated those. You 
have to show that you've engaged in constructive efforts to 
increase minority participation.
    You have to show that, if there has been any intimidation 
or harassment of minority voters--and I will tell you today 
that there still is harassment and intimidation of minority 
voters--that you've made constructive efforts to eliminate it; 
and that you have engaged in other constructive efforts to 
expand the opportunity to register and to cast ballots; and 
that you've included minorities in running the election 
process, whether they work in the voter registration office or 
as poll officials or on the electoral board.
    As someone mentioned earlier, I think that the 
jurisdictions that I have represented--and I have represented 
all nine of the jurisdictions that have bailed out since the 
'82 amendments--the jurisdictions have been able to meet that.
    Now, why, though, have there not been more? The simple 
answer to that--and I'll use this point really to sum up--is 
that I think a lot of the jurisdictions don't really know about 
the bailout provisions and how easy it is, frankly, to meet 
them if you've engaged in non-discriminatory voting behavior.
    And that's the key part of that answer; is that 
jurisdictions today want to be able to demonstrate that they 
have a good record, that they offer equal opportunity. And when 
they find out that the bailout provisions are available to show 
that and to show their citizens that we do have an open 
process, they've pursued it, and they've been proud of it.
    The bailout provisions are really an incentive for the 
covered jurisdictions, which have a presumption that they 
discriminate, to show that, in fact, they have a clean record. 
That's what you intended when you enacted the bailout 
provisions; and thus far, they've worked very well.
    I've submitted to you a chart. I'm going to ask permission 
to submit written testimony at the conclusion of this hearing. 
I'll do it within a prescribed time period, Mr. Chairman, to 
extend my remarks and give you additional information on what I 
agree with Mr. Watt, Congressman Watt; that this is perhaps one 
of the more central parts to show that the Voting Rights Act 
today is not only constitutional, but that it in fact works to 
end discrimination. And that's what it was intended to do. And 
it's a law that we're all very proud of. Thank you very much.
    [The prepared statement of Mr. Hebert follows:]

                 Prepared Statement of J. Gerald Hebert

    Good morning Chairman Chabot, Rep. Nadler, and distinguished 
committee members. Thank you for the opportunity to testify before you 
today. I will focus my comments on the bailout provisions of the Voting 
Rights Act (VRA), but would like to state at the beginning that the Act 
should be extended and the bailout provisions be retained largely in 
their present form.
    The marches, protests, and struggles of the civil rights community 
culminated in 1965 with the passage of the VRA. Individual adjudication 
of disputes had been ineffective in securing minority citizens an equal 
opportunity to cast their ballots. Congress took a fresh approach, 
establishing a formula subjecting certain jurisdictions to 
administrative or judicial preclearance of changes affecting voting, 
and setting up a means for those jurisdictions to bailout out of 
coverage at a later date.
    A jurisdiction is covered, and required to preclear all changes 
effecting voting, if it (1) maintained a test or device as a 
prerequisite to voting as of one of three fixed dates, and (2) as of 
that date either less than 50 percent of its voting age residents were 
not registered to vote or less than 50 percent of its voting age 
residents actually voted.
    Between 1965 and 1982, these covered jurisdictions could bailout of 
coverage by demonstrating in an action for declaratory judgment before 
a three-judge panel of the United States District Court of the District 
of Columbia that no test or device had been used in a given number of 
years. Political subdivisions, such as counties, were prohibited from 
bailing out separately if they were located within a state that was 
covered in its entirety.\1\
    \1\ City of Rome v. United States, 446 U.S. 156, 167 (1980).
    In 1982, Congress enacted two major revisions to the bailout 
provisions. First, political subdivisions could bailout separately from 
their covered jurisdictions. Second, the bailout criteria were changed 
to ``recogniz[e] and reward[] their good conduct, rather than 
require[e] them to await an expiration date which is fixed regardless 
of the actual record.'' \2\
    \2\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46,as reprinted in 
1982 U.S.C.C.A.N. at 222.
    Under the current bailout formula, a covered jurisdiction must 
first demonstrate that in the past 10 years: (1) no test or device has 
been used to determine voter eligibility with the purpose or effect of 
discrimination, (2) no final judgments, consent decrees, or settlements 
have been entered against the jurisdiction for racially discriminatory 
voting practices, (3) no federal examiners have been assigned to 
monitor elections, (4) there has been timely submission of all voting 
changes and full compliance with Sec. 5, and (5) there have been no 
objections by the Department of Justice or the District Court for the 
District of Columbia to any voting changes.\3\ Second, the jurisdiction 
bears the burden of proving at the time bailout is sought that any 
dilutive voting procedures have been eliminated, constructive efforts 
have been made to eliminate any known harassment or intimidation of 
voters, and it has engaged in other constructive efforts at increasing 
minority voter participation such as, expanding opportunities for 
convenient registration and voting and appointing minority election 
officials throughout all stages of the registration/election 
    \3\ 42 U.S.C. Sec. 1973b(1)(A-E) (2005).
    \4\ 42 U.S.C. Sec. 1973b(1)(F) (2005).
    The current bailout formula was an important step towards achieving 
the goals of the VRA. It gave covered jurisdictions an incentive to 
move beyond the status quo, and to improve accessibility to the 
electoral process for minorities. As the Senate Judiciary Committee 
report stated, ``the goal of the bailout . . . is to give covered 
jurisdictions an incentive to eliminate practices denying or abridging 
opportunities for minorities to participate in the political process.'' 
    \5\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 60, as reprinted 
in 1982 U.S.C.C.A.N. at 238.
    Congress should examine whether there is evidence that the bailout 
provision actually ``provide[d] additional incentives to the covered 
jurisdictions to comply with laws protecting the voting rights of 
minorities, and . . . improve[d] existing election practices.'' \6\ I 
believe it has.
    \6\ Id., at 222
    The Supreme Court has indicated a strong Congressional record 
demonstrating the existence of discrimination is required when 
legislating in this area.\7\ In 1970, 1975 and 1982, Congress 
commissioned studies to collect evidence on voter discrimination. In 
1970, the Act was extended because while there was a significant 
increase in black voter registration, there was continued racial 
discrimination in the electoral process (e.g., switching from single-
member districts to at-large elections, redrawing boundaries, minority 
candidates prevented from running, illiterate voters being denied 
assistance, racial discrimination in selection of poll officials, 
harassment, intimidation) and black voter registration rate lagged 
behind white rate.\8\ Similarly, in 1975 minority registration rates 
improved, but still lagged behind whites and restrictions on 
registration, casting a ballot, running for office, intimidation and 
vote dilution still existed.\9\ In 1982, the Commission on Civil Rights 
report documented continued resistance by individuals and local 
jurisdictions to increased minority participation in elections and to 
complying with the VRA. What evidence about all this exists today? 
Congress has a duty, whether it extends the Act or not, to answer this 
    \7\ City of Boerne, 521 U.S. 507, 525 (1997).
    \8\ Paul F. Hancock and Lora L. Tredway, The Bailout Standard of 
the Voting Rights Act: An Incentive to End Discrimination, 17 Urb. Law. 
379, 393-394 (1985).
    \9\ Id. 397, fn. 93-98.
    I have served as legal counsel to all of the jurisdictions that 
have bailed out since the 1982 amendments to the VRA. All of them are 
in Virginia and are listed in Appendix A.
    Local jurisdictions with which I have worked have expressed to me 
several advantages that they derive from the current bailout formula. 
For instance, by requiring them to prove a ten-year record of good 
behavior and to demonstrate improvements to the elections process for 
minorities, these covered jurisdictions are afforded a public 
opportunity to prove it has fair, non-discriminatory practices. Second, 
while bailouts come with some costs (on average about $5,000 for legal 
expenses), it is still less costly than making Sec. 5 preclearance 
submissions indefinitely. Finally, once bailout is achieved local 
jurisdictions are afforded much more flexibility and efficiency in 
making routine changes, such as moving a polling place.
    For all of its advantages, however, only a few jurisdictions have 
bailed out. Some argue Sec. 5 should be retained because jurisdictions 
have not been achieving bailout on a mass scale, and that this is 
evidence there are still many problems with the election processes in 
these jurisdictions.\10\ This assumes that jurisdictions are applying 
and being denied, when really the problem is that jurisdictions are 
just not applying. (See Appendix A). Why is this?
    \10\ Vernon Francis et al., Preserving a Fundamental Right: 
Reauthorization of the Voting Rights Act, Lawyers' Committee for Civil 
Rights Under Law, at 11, June 2003.
    One reason might be that smaller localities just do not know the 
bailout option is available to them, or it seems too complicated or 
time consuming. For the vast majority of jurisdictions, the process is 
relatively straightforward and easy. I would recommend that when the 
legislation is reauthorized, Congress suggest the Department of Justice 
provide more information to localities about how to achieve bailout and 
encourage them to do so.
    Another reason posited for the lack of bailouts is that the 
criteria are thought to be too difficult to meet. That is not the case. 
Most of the factors to be demonstrated are easily proven for 
jurisdictions that do not discriminate in their voting practices.
    One factor, proving Sec. 5 compliance, is often cited as the most 
difficult to meet because opponents to bailout are likely to be able to 
find some small change that was not precleared. But this is not an 
obstacle either.
    There are several reasons why demonstrating Sec. 5 compliance 
should be retained as part of the bailout formula. First, DOJ will 
allow a jurisdiction that inadvertently failed to submit a few changes 
to submit those changes for preclearance at the time bailout is sought, 
and thus the preclearance is nunc pro tunc. Second, the legislative 
history shows that Congress thought that for changes which ``are really 
de minimis'' the ``courts and Department of Justice have used and will 
continue to use common sense.'' \11\ While this process of going back 
and making these Sec. 5 submissions can be time-consuming, it ensures 
full compliance with the Act and is faithful to the language and spirit 
of the law.
    \11\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, 48, as 
reprinted in 1982 U.S.C.C.A.N. at 226.
    While most jurisdictions who have sought bailout since 1982 have 
had to make few such submissions, (See Appendix A) some county 
officials know that political subdivisions, such as towns and cities 
within the county, have not made any submissions. This affects the 
County's ability to obtain an expedited bailout. In King's County, 
California, for example, 40-50 submissions have been required on behalf 
of localities, some of which do not even exist anymore. Furthermore, 
King's County does not have authority to compel the localities' 
compliance with Sec. 5.
    Several amendments were proposed in 1982 which would have made it 
easier for states to bailout without each of its political subdivisions 
bailing out, and each was rejected.\12\
    \12\ H.Amdt. 266 to H.R. 3112, 97th Cong., 1st Sess., offered Oct. 
5, 1981 would have allowed a state to bailout if two-thirds of its 
political subdivisions bailed out, and H.Amdt. 272 to H.R. 3112, 
offered Oct. 5, 1981 and S.UP.Amdt. 1029 to S. 1992, offered Jun. 18, 
1982, both would have allowed a state to bailout if the state met all 
the criteria, even if its political subdivisions did not. Each was 
rejected, because the 15th amendment places the burden of protecting 
the electoral franchise on the States.
    A better solution may be to allow towns, cities and other local 
governmental units within a covered county to bailout independently. 
Then, once each has bailed out, the county can bailout without having 
to make submissions on behalf of each town or city within its borders. 
In this sense, the town-county relationship mirrors the current county-
state relationship that exists under the current bailout law. The 
county would still need to make submissions for any changes it makes 
until it seeks bailout.
    To consider the merits of this, Congress should examine Sec. 5 in 
covered states to see if allowing a bailout to jurisdictions within the 
state has proven to be problematic from an enforcement or compliance 
perspective. If a county can bailout now in a state like Virginia that 
is completely covered (and they can and have done so), has exempting 
parts of a state from preclearance obligations or other special 
remedial provisions caused any problems from an enforcement 
perspective? That would shed light on whether Congress might want to 
allow a local government to bailout within a covered county, or vice 
    A third criticism of the bailout provision relates to the VRA 
coverage formula. (``Places bound by the preclearance provision are 
identified by a formula based on minority participation in election 
more than three decades ago.'' \13\) The bailout provisions, on the 
other hand, were designed to ``relate to the jurisdiction's recent 
record of behavior rather than to a mere calendar date.'' \14\ To the 
extent that only jurisdictions that meet the coverage formula need to 
seek bailout, the bailout provisions suffer from whatever overbreadth 
or other potential problems exist with regard to the coverage formula.
    \13\ George F. Will, VRA, All of It, Forever?, Newsweek, Oct. 10, 
    \14\ 1982 S. Rep. No. 417, 97th Cong., 2d Sess. 46, as reprinted in 
1982 U.S.C.C.A.N. at 222.
    Some argue the current coverage formula may be unconstitutional 
because of a lack of ``congruence and proportionality between the 
injury to be prevented or remedied and the means adopted to that end.'' 
\15\ Sec. 2 of the 15th Amendment to the United States Constitution 
grants Congress the authority to enforce Sec. 1, namely ``the right of 
citizens of the United States to vote shall not be denied or abridged 
by the United States or any State on account of race, color, or 
previous condition of servitude.'' After passage of the Voting Rights 
Act in 1965, the Supreme Court held in South Carolina v. Katzenbach, 
383 U.S. 301, 326 (1966), that Congress had the remedial authority 
under the 15th Amendment, Sec. 2 to pass parts of Sec. 4 of the VRA. 
Again, in 1980 the Supreme Court stated in City of Rome v. United 
States, 446 U.S. 156, 177, that preclearance ``is an appropriate method 
of promoting the purposes of the Fifteenth Amendment, even if it is 
assumed that Sec. 1 of the Amendment prohibits only intentional 
discrimination in voting.''
    \15\ City of Boerne v. Flores, 521 U.S. 507, 520 (1997).
    Congress' authority to enact remedial legislation under the 
Fourteenth Amendment was later reviewed in City of Boerne v. Flores, 
521 U.S. 507, 519 (1997), and the Court determined that Congress' 
remedial authority extends only to enforce prevention of 
unconstitutional actions, not to make substantive change in the 
governing law. Id. at 520 (holding Congress did not have the remedial 
authority to pass the Religious Freedom Restoration Act). Some thought 
this holding signaled potential problems for the VRA's 
constitutionality, yet just two years later the Court stated in Lopez 
v. Monterey County, 525 U.S. 266, 282-283 (1999), ``[l]egislation which 
deters or remedies constitutional violations can fall within the sweep 
of Congress' enforcement power even if in the process it prohibits 
conduct which is not itself unconstitutional and intrudes into 
legislative spheres of autonomy previously reserved for the states.''
    Thus, the remedial provisions of the VRA, including the bailout 
provision, must be proportional to the injury to be prevented. 
Considering the bailout provision applies to jurisdictions based on a 
coverage formula that most seem to agree is outdated, one solution 
would be to revise the coverage formula. It's perhaps the hardest issue 
facing the Congress. This is an area the Congress should give serious 
consideration and study to.
    A solution might be crafted along the following lines: a 
jurisdiction is covered if (1) there is a disparity between the 
percentage of registered minority voters or percentage of minority 
voters who cast ballots in the last presidential election on the one 
hand, and the actual voting age population percentage of minorities on 
the other; or (2) the jurisdiction provided English only election 
materials and assistance and more than five percent of the voting age 
residents are members of a single language minority.
    This formula would seemingly target the remedy toward the 
potentially discriminatory conduct in a more direct way than a formula 
based on the results of a presidential election conducted thirty years 
ago. Jurisdictions which meet this formulation would be presumptively 
covered and subject to Sec. 5 preclearance. They may seek bailout from 
coverage immediately, but would be required to meet the same bailout 
factors that currently exist.
    When devising a new formula, it is important to keep in mind the 
original purpose of the coverage formula: ``The coverage formula of 
section 4(b) was designed to limit the Act's most stringent remedies to 
those areas of the country where congressional investigation had 
disclosed the most prevalent and pervasive degree of racial 
discrimination in voting.'' \16\ Congress has done a magnificent job 
each time it extended the Act in the past to gather detailed 
information on how the Act was working. It should once again undertake 
that effort.
    \16\ City of Rome, brief by Appellees pg 44 (citing H.R. Rep. No. 
439, 89th Cong., 1st Sess. 8, 12-14 (1965); S. Rep. No. 162 (Pt. 3), 
89th Cong., 1st Sess. 13-16 (1965); Sheffield, 435 U.S. at 119-120
    To this extent, and to the extent that Sec. 5 preclearance had 
worked as evidenced by the steady submissions of changes, the sharp 
reductions in objections (See Appendix B), and the practical standards 
for bailout that currently exist, we are headed toward a day when there 
will be no discrimination that affects the ability of any person to 
register to vote or to cast a ballot, and our democracy will be better 
for it.
    Thank you.

                              ATTACHMENT 1

                              ATTACHMENT 2

    Mr. Chabot. Thank you very much. Without objection, those 
materials will be included in the record.
    Mr. Hebert. Thank you.
    Mr. Chabot. We want to thank all four of the members for 
their testimony here this morning. Now the Members up here have 
5 minutes each to ask questions. And I yield myself 5 minutes 
for that purpose.
    I'd ask all of you this question, if you could--and since 
I'm asking all four, if you could keep it within a confined 
range, so we could get everything in--how do you see the state 
of minority voting rights now, as compared to 1965? And how 
much of that would you say is directly or indirectly 
attributable to the Voting Rights Act? And I guess we'll start 
with you, Lieutenant Governor.
    Mr. Steele. Thank you, Mr. Chairman. Just very quickly, I 
think if you look at where we were and where we are, you can 
see dramatic progress has been made, as has been indicated by 
the testimony here this morning. But what I tried to caution in 
my comments was, you know, yeah, we've gone down the road and 
we've gotten rid of some of the ugly, but we still have some of 
the bad out there to deal with, as well; as well as we've got 
some good.
    So the process of enfranchising individuals is a living 
process. It's an ongoing process that I think reflects the 
vibrancy and the diversity and the changes that occur within 
any given community.
    Right now, our country, for example, is dealing with 
increased immigration. And I know in my State of Maryland, and 
particularly Prince George's and Montgomery Counties, we've 
seen a very significant increase in Hispanic and other minority 
communities who have migrated to this part of our Capital 
region. So how do we address their ongoing issues and concerns 
relating to enfranchisement, as they become fully American 
citizens and want to fully participate?
    So I think we have to stay focused on the evolution and the 
continual vibrancy of this process. And this type of hearing 
and this process, in and of itself, helps us do that.
    Mr. Chabot. Thank you. Mr. Garza?
    Mr. Garza. I think there has been a dramatic improvement in 
the level of representation in the Latino community in Texas 
and throughout the Southwest, and in large measure because of 
the Voting Rights Act--section 5 and section 2.
    I think there's still a lot of work that needs to be done. 
And we find examples every day of continuing applications of 
discriminatory features and of things that could be improved in 
this thing.
    For example, the 2001 redistricting plan from Texas was 
objected to by the Department of Justice because it 
retrogressed and eliminated four Latino districts. All of those 
were put back into place as a result of the letter of objection 
and as a result of litigation. So that's 2001, when that 
redistricting plan was adopted for the State House of 
    And another thing that we find continually when we file 
section 2 cases is there is a large percentage of non-
compliance, or a substantial amount of non-compliance in local 
jurisdictions. We inevitably will find in reviewing records--
for example, in the Roscoe Independent School District, we 
sued, challenging the at-large election system in Roscoe. And 
in discovery and in reviewing the minutes of the school 
district, we found that they had adopted a numbered post 
provision for the at-large election system, and had never 
submitted it for preclearance.
    So there's a number of instances like that in almost every 
situation where we've filed these at-large challenges, that we 
find non-compliance. And so I think there's still a major 
problem with that, as well.
    Mr. Chabot. Thank you. Mr. Derfner?
    Mr. Derfner. There's no question that the right to vote is 
much more real today--incredibly more real--than it was in 
1965. At the same time, we have to recognize the Voting Rights 
Act has been central to that progress.
    And I liken it to a cold. If I get a cold, the doctor gives 
me an antibiotic, and he warns me,``Keep taking this antibiotic 
for a full week, or a full 10 days. And even if your symptoms 
appear to be lessening after four or 5 days, don't give up on 
the antibiotic, because your cold is not over just because the 
symptoms are not quite as visible.'' And I think that's what we 
have here. The Act has been critical to the progress we've 
made, and it remains critical to keeping on the progress.
    Mr. Chabot. Thank you. Mr. Hebert?
    Mr. Hebert. Just very briefly, Mr. Chairman, simply put, 
the Voting Rights Act has been responsible for bringing about 
the presence in boards, commissions, and other public bodies, 
of minority citizens taking their rightful place. And but for 
the Voting Rights Act, that would not have happened.
    I have seen in my own experience, particularly, I recall my 
days in the Justice Department, when I was in Selma, Alabama, 
where Dallas County, Alabama--Selma being the county seat--was 
roughly 50 percent Black in its voting-age population. And due 
to the fact of extreme racially polarized voting and the fact 
that there was a long history of discrimination, obviously, 
against Black voters in Selma, Black voters were never able to 
elect a single county commissioner or school board member to 
the school board or to the county commission; even though they 
were roughly half of the population. And that didn't come about 
until nearly 1990.
    And it came about because the Justice Department spent 
years litigating the case that went back and up and down to the 
11th Circuit like a yo-yo several times. But eventually, single 
member districts were there, put into place. Some of the 
districts were majority Black, and Black voters chose to elect 
a Black candidate to those. And so for the first time in 
history in Selma, Alabama, the Voting Rights Act finally 
brought fruit, and Black voters were able to have 
representatives of their own choice governing them.
    Now, that story has been repeated across the Nation in 
jurisdictions and small towns. And the Voting Rights Act has 
been singularly responsible for empowering minority voters to 
achieve those magnificent results.
    Mr. Chabot. Thank you very much. My time has expired. The 
gentleman from New York, Mr. Nadler, is recognized for 5 
    Mr. Nadler. Thank you, Mr. Chairman. I'd like to ask the 
members of the panel one question, so we can clear this up for 
the benefit of the Supreme Court. Starting with Mr. Haybert, is 
it? Haybert?
    Mr. Hebert. Hebert.
    Mr. Nadler. Hebert. Starting with Mr. Hebert, and going 
this way, do the members of the panel, based on their own 
experiences with elections in their home jurisdictions, believe 
that the protections of the Voting Rights Act--and most 
especially, the protections of the various sunsetting 
provisions of the Voting Rights Act that we're considering--are 
still vitally needed? And I mean vitally needed today; not 40 
years ago.
    Mr. Hebert. The answer is, yes, Mr. Nadler. And if I would 
add one comment, you'll see I've attached a listing of all the 
objections that the Justice Department has entered in some 
States, covered States--Mississippi, Virginia, South Carolina, 
to name a few. Some will argue that the fact that there are 
maybe half as many objections in the last 10 years as the prior 
10 years to that, that that's evidence that we no longer need 
section 5.
    In fact, the opposite is true. In fact, this shows that 
jurisdictions now understand that they can't retrogress 
minority voting rights when they make changes, and they've made 
less of them.
    Mr. Nadler. And it's working.
    Mr. Hebert. And it's working.
    Mr. Nadler. Thank you. Mr. Derfner?
    Mr. Derfner. Mr. Congressman, yes, I agree wholeheartedly. 
And in fact, another way to do it is to pay attention in our 
local communities to the--or our State legislatures--to the 
proposals that are floated, and that never even get off the 
ground because it's understood that they will not get 
precleared. And so, in fact, the deterrent effect of the 
preclearance provision, just for one, is a critical one. And 
half the time, we never see what might happen and what would 
happen if we didn't have section 5.
    The same thing, frankly, is true with the Federal Observer 
Program under section 8 of the act. The mere possibility of 
Federal observers coming to some elections, and the fact that 
observers have been sent to certain elections and certain 
polling places, gives us cleaner elections than we would have, 
and guarantees the protections. So we can't do without it.
    Mr. Nadler. Thank you. Mr. Garza?
    Mr. Garza. Absolutely. And to echo some of the comments, 
the experience that we've had is that discussions in the 
governing boards have turned to, for instance, ``Well, you 
know, we've had single member districts all these years. We 
have to keep redistricting every decade. It's costing us a lot 
of money. Why don't we do away with single member districts?'' 
And inevitably, the discussion goes to, ``Well, you can't, 
because of the Voting Rights Act.''
    Mr. Nadler. Thank you. Lieutenant Governor Steele?
    Mr. Steele. Thank you. Absolutely, it is relevant today, as 
it was in 1965, and I would say more so. And I think our recent 
history, electoral history, at the Federal and State levels 
would dictate that we not only renew and put back in place 
those--keep in place those provisions, but to the extent 
necessary, enhance and augment them to address some of the 
ongoing concerns that have been identified since 2000. So I 
think it's very relevant.
    Mr. Nadler. Thank you. Well, I think we're making the 
record for the Supreme Court. Mr. Chairman, I will at this time 
yield the balance of my time to the gentleman from Georgia, who 
has worked so very hard on these issues.
    Mr. Scott of Georgia. Thank you very much, Mr. Nadler. And 
I thank this entire Committee for your kindness and 
graciousness in extending me this opportunity to participate; 
not being a Member. I really, really appreciate it. Thank you 
very, very much.
    I'd like to ask this question to each of the panelists, and 
if you could respond to it. For jurisdictions covered by 
section 5 of the Voting Rights Act, any change in the State's 
or political subdivision's electoral process must be submitted 
for Federal preclearance, to prove that such a change does not 
have the purpose or effect of denying or abridging a citizen's 
right to vote.
    As you know, in my home State of Georgia there's a bill 
that has been passed, and is now law, that requires everyone 
who votes in person to first show State-issued identification 
photo card. Let me ask each of you this question. How does this 
law not have the purpose or effect of denying or abridging a 
citizen's right to vote; since most of the people without the 
photo driver's license or State-issued photo identification 
cards are people of color; or the poor, Black and White; or the 
disenfranchised; and the elderly?
    And I'd like for each of you to respond. Mr. Steele, 
especially, I think you've had a case where you've vetoed--or 
your State has recently vetoed--an ID bill. I think you have 
some familiarity with that. And of course, Mr. Garza, you're 
representing from your perspective for Hispanics, and yours as 
a voting rights attorney. Especially, Mr. Hebert, yours as a 
former Acting Chief of the Civil Rights Division of the Justice 
    Because, to show the irony of this, just yesterday, a 
Federal judge in the Rome Northern Circuit in Georgia ruled 
that, in fact, this very law that was precleared by the Justice 
Department is, in fact, discriminatory and, he said in his own 
words, unconstitutional and acted as a poll tax--one of the 
most vicious forms of denying individuals the vote.
    Each of your responses, that would be very, very important, 
because I think Georgia now becomes the poster State for why we 
need this Voting Rights Act extended.
    Mr. Chabot. The gentleman's time has expired. The 
witnesses, we'd ask you to be relatively brief in your answers.
    I would also note that it's really more specifically a HAVA 
issue, rather than what's covered in this hearing. But 
nonetheless, the question has been asked, and can be answered.
    Mr. Steele. I'd just very quickly say that, yes, we did 
recently have to deal with this issue. With respect to that 
bill, there was additional language in there that the Governor 
found particularly onerous. It wasn't just specifically the 
idea of having a voter ID card.
    But this is a debate that many States are having right now. 
Particularly, in the State of Maryland, we had a very 
contentious 1994 election for governor, in which there was 
fraud and abuse: in which voters who had long since been dead 
voted; in which voters who were not registered to vote, voted. 
And so there has to be in place in the system some type of 
checks and balance.
    And I think the debate and discussion we need to rightly 
have is what makes sense. If I go to the bank right now to cash 
a check, regardless of my status in life, not only do I have to 
present an identification card, I get fingerprinted. So there 
are checks and balances throughout our system. And I don't see 
how or why this process--which is the most precious process 
that we can engage in--should not be protected as much as 
possible from fraud and abuse, at any level, so that every 
citizen's vote not only is counted, but is counted fairly.
    And so I think it's an open debate. It's an open question. 
The States are having it. The Congress is certainly going to be 
engaged in it. And probably, at some point, the Supreme Court 
is going to ultimately judge which way is right and which way 
is wrong, vis-a-vis the Constitution.
    But it's an important debate we're having in our State. And 
I look forward to having it again come this January when the 
session starts up in our legislature, because I know it's one 
of the issues we'll be tackling.
    Mr. Chabot. If the other witnesses would like to answer the 
question, they can. But, please, if you would be brief in your 
answers, because we're trying to keep this within the 5-minute 
    Mr. Derfner. Mr. Congressman Scott, I have no doubt that 
that bill was flagrantly unconstitutional, flagrantly illegal, 
flagrantly discriminatory. And that's exactly what Judge Murphy 
    And I think the importance of that is, how did the bill get 
that far? What does it show about the propensity of a covered 
jurisdiction to do things that it knows are discriminatory?
    And frankly, what can we learn in the rest of the Nation, 
where there's a rush to judgment in many States to perhaps deal 
with fraud--which I acknowledge is something we need to 
prevent; but they aren't being careful enough to deal with it 
in a way that will still protect and preserve the right to vote 
of people, especially poor people that don't drive cars, that 
don't necessarily carry ID cards with them around. And so that 
case is a beacon for telling us that we are reminded we have to 
protect the right to vote.
    Mr. Hebert. And if I may just add one other comment to 
that, you brought up the fact that the Justice Department did, 
in fact, preclear that bill, and it's very troubling.
    I mean, I think, as the section chief there, there was an 
effort made in South Carolina to impose a college diploma 
requirement to hold certain offices. And we found when we 
examined that, that that would fall more harshly on the 
shoulders of minority citizens, who hadn't achieved that same 
education attainment level. And this is a similar thing.
    It always amazes me, I guess, as a voting rights lawyer, to 
see that we're taking a fundamental right like the right to 
vote and, instead of trying to expand it, we're trying to put 
conditions on it. We've done that throughout the history of our 
country. White males were allowed to vote; then property owners 
were allowed to vote; people only over 21, which we eventually 
lowered to 18. We eventually made people pass literacy tests; 
poll taxes; good character clauses.
    Instead of expanding the right to vote, the State of 
Georgia tried to restrict the right to vote. And even though 
there are some cases of legitimate concern about fraud, as the 
Lieutenant Governor has pointed out, well, if the voting rights 
community is going to have to show a demonstrated record of a 
need to extend voting rights discrimination, anti-
discrimination provisions, why shouldn't those who are claiming 
that there's fraud have to also show factually--not just come 
in and make allegations, but to show a record, so that their 
legislation is tailored to meet that? Seems to make sense to 
    Mr. Garza. Just very briefly, LULAC is extremely concerned 
about any restriction that has that sort of requirement for 
voting. We understand the need to make sure that elections are 
fair and clean. Our experience, though, has been that when you 
target election fraud measures, they're usually targeted at the 
minority community in a far greater extent than they are the 
non-minority community.
    For example, we had a congressional race not too long ago 
in Houston, where 1,700 White voters voted in the Democratic--
in the Republican primary, and then switched to vote in the 
Democratic run-off where an Hispanic was running against an 
Anglo candidate. That's illegal in Texas. That's a felony. 
Nobody was prosecuted.
    I represented a young man in Uvalde, Texas, who assisted an 
illiterate voter secure an absentee ballot, a mail-in ballot. 
And because he was illiterate, he could only make a little 
mark, and had to be witnessed. Well, in Texas, a voter can only 
witness two--I mean, I'm sorry, one application for absentee 
ballot, or mail-in ballot, for an illiterate voter. My client 
witnessed two, and he was prosecuted. The DA dropped the 
charges when I sent him a copy of the 1983 action that I would 
file if he continued.
    But that's the sort of enforcement that we see in Texas; 
when much of the fraud is actually committed by officials, not 
by voters.
    Mr. Chabot. The gentleman's time has expired. The Chair 
would just note for the record--and again, I don't want to get 
too far afield of what the purpose of this hearing is--but I'm 
all for expanding voting as widely as possible; but not 
expanding it to the extent that people who are deceased are 
allowed to vote. And so I have to concur with some of the 
comments that the Lieutenant Governor made, that I think it's 
in no one's interests to have fraud occurring.
    And as we're doing that, we certainly need to make sure 
that we're not trampling upon anybody's rights, whether they be 
minorities or otherwise. But there is voter fraud going on, and 
that's just unacceptable. We need to come to grips with that, I 
    The gentleman from Arizona, Mr. Franks, is recognized for 5 
    Mr. Franks. Well, thank you, Mr. Chairman, and thank you, 
panel members. Lieutenant Governor Steele, it's always good to 
see you again, sir.
    Mr. Hebert, in the covered areas, or those areas where 
there is special scrutiny due to past violations of the Voting 
Rights Act, do you see in your official capacity, or just 
studies that you have, that the complaints are increasing or 
decreasing on the Voting Rights Act?
    Mr. Hebert. Well, in the jurisdictions that have bailed 
out, certainly, they are decreasing. In fact, in many of those 
jurisdictions, the bailout process is an opportunity really for 
the election officials to look at their entire voting and 
election system, top to bottom, and ensure that every aspect of 
it is non-discriminatory, and that in fact they are making the 
opportunities for people--minorities, of course, focused in 
that--to register and to cast ballots.
    So in the bailout jurisdictions, the opportunities were 
actually increasing, as the Justice Department found when they 
consented to them.
    Mr. Franks. And in your position, do you see--if you had to 
point out any particular practice that would be the most 
egregious, that goes to the heart of why we have the Voting 
Rights Act in the first place, that would be the most egregious 
in discriminating against people or trying to place undue 
burden on their right to vote, what would your perspective be 
on that?
    Mr. Hebert. I think today the biggest area that needs 
reform is redistricting, frankly. I think you see 
gerrymandering taking place at all levels; and oftentimes, 
aimed at keeping certain potential candidates off the county 
commission or the city council or school board. So I see 
intentional--a lot of times intentional fragmentation of the 
minority community, so that they cannot elect a candidate of 
choice. I think that would probably be one of the principal 
things I see.
    Problems that deal with method of election, I think, 
continue to be the largest ones; because they in fact 
ultimately preclude minority citizens from taking their 
rightful place, oftentimes, you know, in a governing situation.
    Mr. Franks. Well, I might ask you to help me understand 
that a little bit better, how they preclude that.
    But my last question would be to the entire panel, and 
starting with you, Mr. Hebert. If you were going to rewrite 
some part of the Voting Rights Act retrospectively, if you, 
knowing what you do now, could go back the 40 years and say, 
``We want to put this in place because now we know what the 
trends were,'' how would you change--what things would you do 
differently? And I'll start with you, Mr. Hebert. And just if 
everyone could take a shot at that.
    Mr. Hebert. Well, that's a very interesting question, 
actually, Congressman Franks. I would say that one thing I 
would do, if I had had the foresight to do it--and I admit that 
I would not have; and you didn't either, unfortunately--is that 
I would have spelled out in section 5 that the purpose prong of 
section 5 bars unconstitutional discrimination, and not just 
retrogressive intent, as the Supreme Court has now limited it.
    I would have said that if a county or a State or a city 
makes a voting change, and they intend to discriminate against 
minority voters, even if they don't make them worse off in the 
process, but they intend to discriminate against them and keep 
them in their place, that that ought to be unconstitutional--
which it is--and it ought not to be precleared under the Voting 
Rights Act--which, unfortunately, today is not the law, as a 
result of the Supreme Court's decision in Bossier Parish v. 
    So that's certainly one change I would retrospectively go 
back and make. Mr. Derfner was around for the original '65 Act, 
so I'll let him add another---- [Laughter.]
    Mr. Franks. Mr. Hebert, just briefly, related to the 
previous thought that you brought forth, the part that you 
think related to the electoral redistricting, what part of that 
would you point out as having been something that is 
discriminatory toward minorities of any kind?
    Mr. Hebert. Well, when a redistricting plan is drawn by a 
jurisdiction, whether it's at the State level or the local 
level, they have a whole host of data available to them, down 
to the finest detail. And as a result of highly sophisticated 
technology, we can actually look down and see which blocks 
within a State voted Democratic, which ones voted Republican, 
where the minority voters are, the Hispanics, and how they're 
trending in terms of their voting patterns. And we can 
calibrate districts down to almost a tenth of a percent, as to 
what the likely outcome is going to be on election day.
    And so I think that what happens in a lot of jurisdictions 
is that, as particularly the Latino community has been growing 
in so many jurisdictions across the country, and there are 
issues there with regard to their turnout because a number of 
people may not be citizens, or may not turn out to vote, that 
in fact there are calculations that are actually made in ways 
that are intended to keep Latino voters from electing their 
preferred candidates and to create districts in which they can 
elect their candidates of choice.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    I would just note for the record, we've been advised that 
we're supposed to have a series of votes at about quarter till 
twelve; which is a little over 20 minutes from now. I think we 
have four Members here still to question. The timing works out 
well, as long as we stay on schedule to, you know, some extent.
    The gentleman from Michigan, Mr. Conyers, the distinguished 
Ranking Member of the full Committee, is recognized for 5 
    Mr. Conyers. Thank you, Chairman Chabot.
    This has been a very good discussion. I'm not going to be 
able to talk with the Lieutenant Governor about some voter 
rights measures--three of them--that the Governor vetoed; one 
of them making it illegal to suppress the vote through the 
dissemination of false or misleading information. But I'd like 
to get some additional information about that, and how you came 
out on that position.
    Mr. Steele. How I personally came out?
    Mr. Conyers. Yes. I would like to find out where--I mean, 
you didn't veto them, but I'd like to know, because of your 
strong support for the Voting Rights Act, and the fact that in 
Baltimore particularly there were lots of--there have been a 
number of problems that have come to my attention. My staffer 
happens to live in the State. And so we'd like to get those for 
the record, since you're here and with us today.
    I'd like to begin our discussion, as brief as it is, with 
the whole issue of bailout. I assume that the trigger is 
reasonably supported by most people. But I think that the 
bailout circumstances--which I think have been expedited by 
now. You don't even--you can do it through just filing. And I 
think that the bailout is where we should put our discussion.
    And I'd like to begin with Mr. Derfner, who has been here--
I've seen him around here--from the beginning of the act. And 
then I'd like to go to Mr. Hebert and the rest of our 
    What do you think we need to do with bailout? Is it in--has 
it gone through enough changes so that we can support it in its 
present circumstance, Mr. Derfner?
    Mr. Derfner. I think--I think we have, and I think it does. 
The debate in 1982 took place because at that time the bailout 
had been very infrequently used. And in effect, the only 
bailout at that time available was for jurisdictions that could 
sort of show that it was a mistake to include them from the 
beginning. So there was no way that a jurisdiction, once 
covered, in those days could bail out simply by improving and 
doing better.
    The 1982 bailout--and I think Mr. Hebert's cases have shown 
this--has shown that a jurisdiction can bail out effectively, 
and it can do it as much by showing that it has a good record 
today, it has worked to have a good record, and it has worked 
to do those things that are the goals of the act. So in that 
regard, I think the bailout has been fine.
    Mr. Hebert tells me that no jurisdiction that has tried to 
bail out has been unable to do so, so it seems to be working. 
And unless there is more of a record put on about specifics, I 
think the bailout as it is is just fine, and fully supports the 
constitutionality of the Voting Rights Act by giving a safety 
valve, or almost a reverse trigger, to correspond to the 
trigger of section 4.
    Mr. Conyers. Mr. Hebert?
    Mr. Hebert. I would agree with that. Let me also add, Mr. 
Derfner is correct, there have been--not a single jurisdiction 
has attempted to bail out since the '82 amendments and been 
turned down by the Justice Department or a Federal court.
    When you think about the bailout provisions, they are just 
the right stuff. They go exactly to the issues that Congress 
was concerned about when it enacted the Voting Rights Act in 
the first place.
    When you think about the criteria that you have to 
establish in order to bail out, you have to show that you 
haven't lost a court case in which you've been found guilty of 
discriminating on the basis of race or color or membership in a 
language minority group. You have to show that you've actually 
taken constructive measures to increase minority voter 
participation. You have to show that you've complied with 
section 5's preclearance requirements. You have to show that 
not only have you made your submissions, but you haven't 
proposed anything that discriminates against minority voters or 
makes them worse off. All of the kinds of things that 
jurisdictions should have to show in order to escape.
    And quite frankly, I think they're perfectly tailored to 
meet the nature and extent of the violation; which is exactly 
what the Supreme Court has said repeatedly in this area.
    Mr. Conyers. Mr. Garza, do you have anything to add?
    Mr. Garza. No, I think I would echo what they've----
    Mr. Conyers. Surely. Lieutenant Governor?
    Mr. Steele. I would echo the same.
    Mr. Conyers. Thank you. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much. If I could ask for 
unanimous consent for 1 minute, just to follow up on a question 
that the distinguished Member, Mr. Conyers, just asked and that 
you were talking about, Mr. Hebert, relative to California, 
apparently, there's four counties out there where some folks 
have indicated that they think the process is difficult and 
cumbersome and has a low probability of success; as opposed to 
other areas which have done quite well. Could you comment on 
that point of view, and what your opinion would be? Again, very 
    Mr. Hebert. Yes, I would say that, you know, I only 
represent one county in California, Kings County. And I believe 
that in Kings County the officials there recognize that the 
Voting Rights Act plays an extremely important part of 
empowering racial and ethnic minorities.
    I don't think--I think that the one issue for Kings County, 
which is presently seeking a bailout, or at least has notified 
the Justice Department that it is seeking a bailout, that they 
have an issue with is the fact that in order to get a bailout 
they have to show not only that they have made all their 
section 5 submissions, but all the dozens and dozens and dozens 
of jurisdictions within the county--often, that they have no 
control over, and who conduct their own elections sometimes--
that they have also made all of their section 5 submissions, or 
engaged in non-discrimination.
    And you know, that's proving to be a challenge for us, 
because we've now found that there are 40 to 50 of those out 
there within the county that have never been submitted for 
    Mr. Chabot. The gentleman from New York is recognized 
briefly here.
    Mr. Nadler. Very briefly. I just want to ask a follow-up 
question to this. What you just said intrigued me. So Kings 
County has a problem with the fact--the difficulty of getting 
40 or 50 jurisdictions locally to be perfect, also. My question 
is, if Kings County bailed out, wouldn't those local 
jurisdictions automatically also be bailed out?
    Mr. Hebert. Yes, they would.
    Mr. Nadler. That's why you have to make sure that they're 
okay, too?
    Mr. Hebert. That's correct.
    Mr. Nadler. Okay.
    Mr. Hebert. That's the current state of the law.
    Mr. Nadler. Thank you very much.
    Mr. Chabot. The gentleman's time has expired. The gentleman 
from Florida, Mr. Feeney, is recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman. I've appreciated all 
the witnesses. Lieutenant Governor Steele, thank you for being 
here. I have a series of some quick questions for you to, I 
think, clear some matters up. You don't support proposals that 
would require some form of ID or proof of who you are that 
would be either unaccessible or unaffordable, unavailable to 
any particular group; is that right?
    Mr. Steele. No, absolutely not. I can look to the case of 
my mother, 76 years old, a senior citizen. What we did was, we 
went out and got made up just an identification card--name, 
address, you know, Social Security number--that she could use.
    Mr. Feeney. And to the extent that a State deliberately had 
a burden or a gate to get certain forms of legitimate ID to 
discriminate against certain voters, that would violate the 
15th amendment and the Voting Rights Act.
    Mr. Steele. Absolutely. I mean, we're not talking about 
identification that would be onerous to obtain.
    Mr. Feeney. But do you think this State may have an 
interest in preventing some of the 10 to 12 million people that 
are in America illegally from participating in Americans' 
    Mr. Steele. It goes to the question of checks and balances 
in the system to make sure that the fraud and abuse that has 
been documented, at least in my State, over the last 10 years 
does not occur.
    Mr. Feeney. And in Florida we have ``snow birds'' that are 
fortunate enough to spend the summer months in the North often, 
and they spend four, 6 months in the South. We know that 
thousands of them traditionally vote twice for President.
    Mr. Steele. We have had examples of that in the State of 
Maryland, where we have citizens of the District of Columbia 
who are domiciled there but registered to vote in Maryland, and 
tend to vote in both jurisdictions on election day.
    Mr. Feeney. And notwithstanding a person's passion to 
participate in the democratic process, do you believe that, 
once they are dead, they ought to quit participating?
    Mr. Steele. I think that would be a good thing.
    Mr. Feeney. Okay. Thank you. I really appreciate that.
    Mr. Hebert, I want to congratulate you on the extraordinary 
record. You've represented 100 percent of the applicants who 
have been successful in the bailout provision. And not only 
that, but your average fee of about $5,000 seems to be one of 
the most affordable waivers of any Federal program that I know 
of. I don't know of any lawyer in the country that can brag 
about that success rate for such an affordable proposition.
    You point out that some folks are either just not aware 
that they're eligible to apply for bailout, or that they are 
intimidated because of the prospects. I mean, after all, the 
way that section 4 is stated, to prove that you haven't 
violated section 5 is almost the impossible burden of proving 
the negative, if you take it to the extreme.
    But what you point out is that a failure, for example, to 
have precleared ahead of time a change in the past 10 years can 
be remedied at the time of application, and that if there have 
been certain de minimis failures to comply with the Voting 
Rights Act, that they have been waived.
    Can you elaborate on that, as we decide whether to reenact 
section 4? Do we need to change some of the provisions of the 
bailout provision, or do you just think we need to do a better 
job of educating the eligible jurisdictions that they can 
    Mr. Hebert. Thank you, Congressman Feeney. I would 
encourage the Congress to ask the Justice Department to make 
bailout information more available to the covered 
jurisdictions, and that they will work with them to that end.
    But in terms of the actual de minimis changes, what that 
provision was really intended to do was this. If a jurisdiction 
is a covered jurisdiction and wants to bail out, they have to 
show a good record of having--consistent record of having made 
all of their submissions to the Justice Department for 
preclearance of their voting changes, to show non-
    The Justice Department is not concerned if a State or a 
city or a county or a school board inadvertently forgot to 
submit something that is not controversial and is--and could be 
labeled de minimis; even if it involves moving a polling place, 
which can sometimes not be de minimis.
    And the Justice Department and Congress spelled this out 
the last time when it amended the bailout provisions in '82--
should really bring a heavy dose of common sense to the 
application of the bailout process. And in fact, that's what 
the Justice Department has done.
    In the table I gave you, for example, in Shenandoah County, 
Virginia, one of the counties that I represent, there were 31 
un-precleared changes that we found in the course of that 
review with the Justice Department. We went back and submitted 
those. They were precleared nunc pro tunc. And basically, the 
county was then eligible and the Justice Department considered 
    Mr. Feeney. And then, finally, in Katzenbach, the Supreme 
Court ruled that the Voting Rights Act was an exceptional power 
exercised by the Congress, and therefore had to be limited and 
would be subject to scrutiny. You pointed out that the bailout 
provisions, like other provisions of the Voting Rights Act, has 
to be proportional to the remedy to be resolved.
    In your opinion, is the Voting Rights Act, as it applies 
today in America, still proportional in a constitutional sense 
to the remedy to be addressed?
    Mr. Hebert. Yes, both the preclearance provisions and the 
bailout provisions, in my view, are constitutional to that 
    Mr. Feeney. Thank you. I yield back.
    Mr. Chabot. Okay. Thank you. We'll go ahead to Mr. Scott 
now. If Mr. Watt is going to come back, then we'll have to come 
back afterwards. If not, then we could conclude before these 
votes. So the gentleman from Virginia is recognized for 5 
    Mr. Scott of Virginia. Thank you, Mr. Chairman. Mr. Hebert, 
you're familiar with Virginia politics. It seems to me that the 
burden of bailing out may not be the reason that a lot haven't 
bailed out. I'd imagine that a lot of cities wouldn't want to 
offend their minority population by adding questions about 
motives and all that, and would just--where the remedy may be 
worse than the cure--I mean the remedy may be worse than the 
disease. And they just go through the perfunctory kind of 
changes they go through.
    Rather than get into a racially divisive situation with 
their community, I suspect a lot of jurisdictions just don't 
want to. And a lot in my district, I would imagine, wouldn't 
want to spoil whatever race relations they have by going 
through that fight and, however easy it may be, would just 
leave well enough alone and like that. Do you agree?
    Mr. Hebert. Yes, I do, because, you know, Congressman 
Scott, you make a good point here; which is that when 
jurisdictions are considering bailout, the first thing that 
I've recommended to my clients to do is to meet with the 
minority community and see what they think about it.
    And in fact, you can use the minority community, engage the 
minority community to find out more about the bailout process 
and what their concerns are about the community in the area of 
voting. So you can actually use it as a constructive tool.
    Mr. Scott of Virginia. But generally, the reason a lot of 
them may not be trying to bail out is they just decide they 
don't want to go through that process and spoil their race 
    Did I understand your testimony to say that it's somewhat 
absurd to preclear a plan that is a clear section 2 violation?
    Mr. Hebert. No, I didn't say that. It used to be the law--
at least, according to Justice Department regulation--that the 
Justice Department would not preclear voting changes that 
provided a clear violation of section 2. The Supreme Court 
struck down that particular interpretation in Bossier Parish I.
    What I said was that, if you engage today in 
unconstitutional discrimination, and you enact a voting change 
that basically keeps minorities in their place but doesn't make 
them worse off, that's unconstitutional; but that's going to 
get precleared.
    Mr. Scott of Virginia. But it's a violation of section 2.
    Mr. Hebert. It is a violation of section 2, but it puts the 
burden on the minority.
    Mr. Scott of Virginia. And isn't it absurd to preclear a 
section 2 violation and force the community to go to court, 
rather than just fail the preclear it?
    Mr. Hebert. Well, it's an area of the law that should be 
    Mr. Scott of Virginia. Okay.
    Mr. Hebert. It should be fixed.
    Mr. Scott of Virginia. The present law is absurd. That's 
what I mean.
    Mr. Hebert. Yes, it is.
    Mr. Scott of Virginia. Yes.
    Mr. Derfner. Congressman Scott, I would just say I think 
that is a situation in which, with all due respect to the 
Supreme Court, I think they got Congress' intent wrong. And I 
think Congress made plain what it meant. And I think that may 
be one of the instances in which this Congress ought to engage 
in restorative conduct, to reassert what it did the first time 
    Mr. Scott of Virginia. One of the things--just don't have 
much time left--the question of whether we ought to go 
nationwide with the Voting Rights Act, how can you narrow--is 
it possible to narrowly tailor a Voting Rights Act protecting 
rights of minorities to vote, and try to go nationwide? Is that 
    Mr. Hebert. This was considered back in 1982 and, in my 
judgment, was properly rejected, because you really want to--
and because the provisions are special remedial provisions, you 
really want to target them to where the problems are. And 
making them simply nationwide creates all kinds of over-breadth 
problems that I think Congress should avoid.
    Mr. Scott of Virginia. My time is just about up. If someone 
could submit for the record the need for observers and 
examiners, I'd appreciate it. And Mr. Chairman, I would yield 
back so that my colleague could have time before we vote.
    Mr. Chabot. I don't know if there is time, really.
    Mr. Watt. Mr. Chairman, if you could just recognize me for 
1 minute.
    Mr. Chabot. The gentleman is recognized for 1 minute.
    Mr. Watt. I think I can do what I need to do. I really had 
a question that I don't think we can do justice to in the time 
here, but I'd like to submit it technically for the record and 
get a follow-up answer, if it's all right with the Chair.
    The general concept is what we need to do possibly to 
expand section 5 jurisdiction. And one of the--and so you all 
can be thinking about it, I'll give it to you in precise 
language. But the concept would be the possibility of expanding 
section 5 to include jurisdictions that have since 1982 been 
found guilty of violating the Voting Rights Act.
    But I think the question and the responses probably need to 
be well thought out and articulated better than I'm 
articulating them here. So if it would be better--I think it 
would be better for me to just do it in the record.
    Mr. Chabot. So noted. The gentleman will do that, and the 
Committee would respond. We appreciate that.
    Thank you very much for your time. We've got to head over 
to the floor. You've been extremely helpful at this point in 
time. We do have hearings next week, as well, but not with this 
particular panel.
    And the gentleman from New York is recognized. We already 
did the 5-minute thing.
    Mr. Nadler. Yes, we already did it.
    Mr. Chabot. Okay. If there's no further business to come 
before the Committee, we're adjourned. Thank you very much.
    [Whereupon, at 11:40 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Linda T. Sanchez, a Representative 
 in Congress from the State of California, and Member, Subcommittee on 
                            the Constitution

    I thank Chairman Chabot and Ranking Member Nadler for convening 
this second hearing on reauthorization of the Voting Rights Act, and 
for allowing me to be a guest on this panel.
    As the only Latina on the House Judiciary Committee, today's 
hearing regarding ``Section 4: An Examination of The Scope and Criteria 
For Coverage Under The Special Provisions of the VRA'' is significant 
to me and thousands residents in my home state of California.
    This hearing is vital because section 4 prohibits the use of 
literacy tests and English-only tests in voter eligibility 
determinations. For decades in voting jurisdictions nationwide, 
English-only tests have been a subtle but insidious method used to keep 
eligible Latino and other language minority voters from the polls.
    My home state of California is one of the 16 states in the Union 
that are presently covered by section 4.
    With California and the nation experiencing annual Latino 
population growth, it is vital that section 4 cover all jurisdictions 
there is a confirmed history of discrimination that may adversely 
impact Latino voters.
    The current section 4 criteria are stringent but may benefit from 
some revisions.
    Presently, jurisdictions are covered based on whether literacy 
tests or other devices were in place in 1964, 1968, or 1972, and 
whether voter registration and participation in covered jurisdiction 
was less than 50 percent in those years.
    The continued reliance on these decades-old criteria raises the 
obvious question whether the jurisdictions presently covered by section 
4 should continue to be, and whether new jurisdictions are being 
    Likewise, I think it is critically important that we closely 
consider the ``bail out'' provisions that allow jurisdictions with 
proven histories of discrimination to end their Voting Rights Act 
    It is commendable to reward jurisdictions for reversing their 
histories of discrimination. However, the preservation of all citizens' 
right to vote should take first priority.
    Section 4 is a critical provision of the Voting Rights Act for 
protecting Latino and other minority voters from literacy and English-
only tests.
    It is a provision that must be reauthorized and if necessary 
amended to ensure all applicable jurisdictions are covered.
    I hope that today's witnesses will inform the Subcommittee on the 
importance of section 4 and make recommendations to improve its scope 
and application.
    Again, I thank the Chairman and Ranking Member for their courtesy 
and allowing me to join the Constitution Subcommittee at this important 
    I yield back.

  Prepared Statement of the David Scott, a Representative in Congress 
                       from the State of Georgia

    Thank you, Mr. Chairman and members of this subcommittee for the 
opportunity to be here today during this important hearing to examine 
the scope and criteria for coverage under the Voting Rights Act. The 
legislation was one of the most important, if not, the most important 
legislation enacted by Congress in the 20th century. The legislation 
protects the voting rights of not just African-Americans, but each and 
every citizen of this wonderful country. The Voting Rights Act is so 
important that it has been amended and sections that were due to expire 
extended in 1970, 1975, 1982, and 1992. Again, it is time to reexamine 
this legislation and its impact on several states including my own 
state of Georgia.
    I am particularly concerned with the effectiveness of the 
preclearance provisions in section 5 of the Voting Rights Act that 
require states, including Georgia, with a history of discriminatory 
voting practices to obtain preclearance for any proposed changes to 
their election laws or procedures. The fact that Georgia's obviously 
discriminatory Voter ID law was precleared by the U.S. Department of 
Justice underscores the continued need for the judicial remedies of the 
Voting Rights Act to be extended. A citizen's right to vote must not be 
left to the political winds of which party controls the Justice 
Department, but should be enshrined in our federal laws and protected 
by judicial review.
    Therefore, I will work closely with my colleagues in the House and 
Senate to ensure that this legislation continues to protect the rights 
of all Americans. I look forward to hearing from my colleagues, legal 
and constitutional scholars, civil rights activists, and the community 
during the hearings being held by this committee.
    Thank you.

Appendix to the Prepared Statement of Armand Derfner: United States v. 
                 Charleston County (316 F.Supp.2d 268)

Appendix to the Prepared Statement of Armand Derfner: United States v. 
                    Charleston County (365 F.3d 341)

Appendix to the Prepared Statement of Armand Derfner: United States v. 
                   Charleston County (125 S.Ct. 606)

    Appendix to the Statement of J. Gerald Hebert: Revised Prepared 

    Presentation on Behalf of Merced County, California, Concerning 
     Reauthorizations of Sections 4 and 5 of the Voting Rights Act

    Supplement to November 4, 2005 Presentation on Behalf of Merced 
  County--Information re Yuba County, California and Why the Bailout 
          Criteria are Unduly Onerous for California Counties

 Prepared Statement of Chellie Pingree, President and CEO, Common Cause
    Chairman Chabot and Ranking Member Nadler:

    Thank you very much for holding the recent round of hearings on the 
provisions of the Voting Rights Act which are up for reauthorization in 
the 109th Congress. It is our hope that these hearings will produce a 
reliable record that Congress can rely on as it proceeds with the 
reauthorization of this historic act. Common Cause is proud to offer 
its remarks on the Voting Rights Act and suggestions for improving the 
sections that are up for reauthorization.
    Common Cause is a nonpartisan nonprofit advocacy organization 
founded in 1970 by John Gardner as a vehicle for citizens to make their 
voices heard in the political process and to hold their elected leaders 
accountable to the public interest.
    Now with nearly 300,000 members and supporters and 38 state 
organizations, Common Cause remains committed to honest, open and 
accountable government, as well as encouraging citizen participation in 
    In our 35-year history, Common Cause has had a long history of 
support of the Voting Rights Act. We testified before the House 
Judiciary Subcommittee on the Constitution in 1975 and 1981 on the need 
for extension of the act. In addition, our former chairman emeritus, 
the late Archibald Cox, helped develop key provisions of the original 
act as United States solicitor general and supported its 
constitutionality in oral arguments before the Supreme Court.
    Since its enactment 40 years ago as a culmination of the Civil 
Rights Movement, and with its subsequent extensions, the Voting Rights 
Act has been an invaluable tool in breaking down voting barriers to 
millions of Black and Hispanic Americans. It has also extended crucial 
voting access to Native Americans, Alaskan and Pacific Islanders and 
Asian Americans, ensuring in the process that all Americans have an 
opportunity to equally participate in the most vital duty of 
citizenship. Along the way, it has contributed immensely to 
diversifying the ranks of our nation's elected officials.
    Although much of the electoral progress of the past four decades 
can be attributed to the Voting Rights Act, its success does not mean 
the law is outdated or obsolete. Indeed, many of the numerous problems 
voters confronted across the United States in the 2000 and 2004 
elections show there is still a need for the expiring provisions of the 
Voting Rights Act. As long as barriers to the effective exercise of the 
franchise remain for racial, ethnic, and language minorities, there 
will be a need for the Voting Rights Act. Several groups have submitted 
testimony showing the lingering persistence of racial polarization in 
voting patterns; the bipartisan National Commission on the Voting 
Rights Act, organized by the Lawyers' Committee for Civil Rights Under 
Law, is expected to issue a report in early 2006 detailing, through 
testimony and supporting documents, that discrimination against racial 
or language minority voters continues to exist in every region of the 
United States. In addition, the increase in minority political 
participation over the past four decades has been met with new 
political devices designed to roll back or negate those gains. (e.g., 
the return of at-large election systems, discriminatory placement of 
polling places, or manipulating minority voter strength either by 
concentrating, or ``packing'' numbers of voters into districts, or 
dividing or ``cracking'' them among numerous districts) These factors, 
combined with the continued existence of racially polarized voting, 
make plain the need for continuing the strong, prophylactic measures of 
the Voting Rights Act.


    We strongly believe there is a need for Congress to restore 
protections against intentional racial discrimination in areas covered 
by the ``preclearance'' requirements of Section 5. As you know, certain 
jurisdictions nationwide with a history of discriminatory voting 
practices must have proposed election changes reviewed for potential 
discriminatory impact by the Justice Department or the federal District 
Court for the District of Columbia before they can be carried out.
    Those protections were fundamentally weakened in January 2000, when 
the Supreme Court ruled in Reno v. Bossier Parish School Board \1\ that 
the Justice Department could not block the implementation of racially 
discriminatory voting changes under Section 5 if they were not 
retrogressive as compared to the status quo, even if there was a 
finding of clear intentional discrimination in a jurisdiction's newly 
proposed voting schemes. That is, a jurisdiction that never had 
minority representation on its elected body could continue to adopt new 
redistricting plans intentionally designed to minimize minority voting 
strength, and Section 5 would provide no protection.
    \1\ Reno v. Bossier Parish School Board, 528 U.S. 320 (2000), also 
referred to as Bossier II.
    This decision upset Congress' original intent in enacting Section 5 
of the Voting Rights Act and the legal precedent that has flowed from 
it. In the process, it has caused significant damage to the anti-
discrimination protections contained in the Voting Rights Act, as well 
as its enforcement by the Justice Department. As Brenda Wright of the 
National Voting Rights Institute testified before this committee, 
Section 5 objections based on racial discrimination were common before 
the Bossier II decision. During the 1980s and 1990s, the Justice 
Department logged 234 objections to voting changes based solely on 
intent. By comparison, between January 2000 and June 2004, only two 
similar objections were filed--a clear sign that the intent standard 
has changed significantly since the Bossier II decision. Common Cause 
joins with its peers within the civil rights community, including the 
Leadership Conference on Civil Rights and the NAACP Legal Defense and 
Education Fund, Inc., in asking Congress, as part of the 
reauthorization of the Voting Rights Act, to restore the original 
intent of Section 5.
    We are also very concerned about the effect of the Supreme Court's 
2003 ruling in Georgia v. Ashcroft.\2\ In that ruling, which dealt with 
Georgia state senatorial districts, the Court allowed states greater 
freedom to redraw elective districts without fear of having the 
districts rejected as ``retrogressive,'' or harmful to minority voters' 
interests. The Court ruled that states could dismantle districts that 
afforded minority voters an opportunity to elect candidates of choice 
in favor of districts that gave minority voters an opportunity for 
``influence.'' This decision is a radical departure from decades of the 
Court's precedents.
    \2\ Georgia v. Ashcroft, 539 U.S. 461 (2003).
    Twenty-seven years before Georgia v. Ashcroft, the Supreme Court in 
Beer v. United States \3\ ruled that creating ``influence districts'' 
failed to preserve minorities' ability to elect candidates of their 
choice, and, as such, was retrogressive. As a result, such voting 
changes were objectionable under Section 5 of the Voting Rights Act. In 
1982, Congress adopted the Beer standard as part of the act's 
    \3\ Beer v. United States, 425 U.S. 130 (1976).
    The court's ruling in Georgia introduced new standards that are at 
once vague, contradictory and difficult to apply. For instance, the 
court found the ability to elect a candidate of choice is ``important'' 
and ``integral,'' but a court must also consider the effect--whether 
voters have the ability to ``influence'' and elect ``sympathetic'' 
    Also, the Supreme Court's 1995 decision in Miller v. Johnson \4\ 
demonstrates ably that influence is not a substitute for the ability to 
elect. In that case, White citizens who were placed in majority-Black 
districts successfully argued their inclusion in those districts (which 
could also be described as White ``influence'' districts) was 
unconstitutional. The voters in this lawsuit, rather than embracing the 
opportunity to ``play a substantial, if not decisive, role in the 
electoral process'' or to accomplish ``greater overall 
representation''--all similar arguments the Supreme Court made in 
Georgia v. Ashcroft--instead chose to challenge their placement in 
majority-Black districts. Were ``influence'' as attractive a status as 
the court would have us believe, everyone would be fighting to be a 
minority in as many districts as possible. The fact that no voters are 
doing so speaks volumes of the Georgia v. Ashcroft ruling and the 
approach it embodies.
    \4\ Miller v. Johnson, 515 U.S. 900, 919-20 (1995).
    Through its ruling in Georgia v. Ashcroft, the court took a clearly 
understood and applied standard and reworked it into something 
ambiguous and open to varying interpretation. It raises the specter 
that states may eventually reduce racial, ethnic and language-minority 
voters to second-class status by locking them into influence districts 
without the opportunity to elect their preferred candidates--a result 
that Section 5 was intended to avoid.
    The Supreme Court's decisions in the Georgia v. Ashcroft and 
Bossier II cases jeopardize many of the gains that American citizens 
have made under the Voting Rights Act. As a result, Common Cause asks 
Congress to reinstate the Beer standard that has competently guided 
federal, state and local officials as part of the provisions of the 
Voting Rights Act for nearly 30 years. At minimum, Congress should 
clarify the issue by stating as part of the reauthorization that any 
diminution of the ability of a minority group to elect a candidate of 
its choice constitutes retrogression under Section 5. In addition, 
Congress must also act to ensure that voters' rights are protected 
under the enforcement mechanism of Section 5 by restating its intent 
using the pre-Bossier II standard.


    Common Cause has historically supported efforts to include 
bilingual election requirements, such as those included in Sections 
4(f)(4) and 203 of the Voting Rights Act. As Archibald Cox said in his 
1982 testimony before Congress on the issue:

        In adopting the bilingual election provisions (in 1975), 
        Congress recognized that English-only election materials and 
        voter assistance can constitute a barrier to voting similar to 
        literacy tests. Requirements for bilingual elections have 
        enabled and encouraged minorities to become active participants 
        in the great work of governing ourselves. I am not unmindful of 
        the argument that the bilingual provisions will tend to 
        polarize American society. Surely, bilingual voting will have 
        just the contrary effect. The best way to avoid a separatist 
        movement in this country is to encourage participation in the 
        exercise of the right to vote. For participation in the 
        electoral process without language barriers makes it plain to 
        all that we are one Nation with one government for all the 

    Currently, Section 4(f)(4) applies to three states (Alaska, Arizona 
and Texas) and 19 counties or townships in six additional states; 
Section 203 applies to five states (Alaska, Arizona, California, New 
Mexico and Texas) and parts of 26 additional states covering 29 
languages. Taken together, sections 4(f)(4) and 203 apply to 505 
jurisdictions nationwide. Common Cause believes that attempts to impose 
English-only provisions should be blocked and that the language 
provisions included in sections 4(f)(4) and 203 should be reauthorized 
for 25 years. More specifically, we associate ourselves with the 
comments of Margaret Fung of the Asian-American Legal Defense and 
Education Fund and Juan Cartagena of the Community Service Society of 
New York, in asking that Congress lower the language minority numerical 
trigger contained in Section 203 from 10,000 voting-age citizens to 
7,500. This move would continue the encouraging trend of higher Asian-
American and Latino political participation among our fastest-growing 
    Enhanced access to bilingual voting materials will continue to 
expand minority-language voters' access to the political process--
especially older citizens for whom English may not be their first 
language. Most importantly, this expands the right to vote and 
participate in American society, which solidly trumps any claims of 
fraud and increased expense that opponents of minority-language 
provisions have put forth.


    The Voting Rights Act also provides for the deployment of federal 
observers and examiners to witness voting practices, as well as 
interview and register individuals denied the right to register by 
state and local officials in covered jurisdictions. As Nancy Randa of 
the Office of Personnel Management recently testified, these provisions 
have not changed significantly since the original enactment of the 
Voting Rights Act. Since 1966, the federal government has deployed more 
than 26,000 observers to 22 states in all regions of the country. As 
you have heard in testimony by the National Commission on the Voting 
Rights Act and the Asian-American Legal Defense and Educational Fund, 
there remain numerous instances in which voters have been subjected to 
harassment or intimidation at the polls. As long as these incidents 
continue to take place, there will be a need for examiners and 
observers. Therefore, Common Cause asks Congress to reauthorize 
sections 6 and 8 of the Voting Rights Act for an additional 25 years to 
ensure these well-practiced protections will remain in place.


    As stated above, the Voting Rights Act has served its purpose well 
over the previous 40 years. But that does not mean its time has passed. 
To the contrary, the explosive growth of Asian Americans and Latinos in 
the United States, combined with the deleterious effects of recent 
Supreme Court decisions with respect to Section 5, are all the more 
reasons why Congress must reauthorize a stronger Voting Rights Act. By 
reinstating the Beer standard, reversing the damage caused by Georgia 
v. Ashcroft and Reno v. Bossier Parish (2000), lowering the minority 
language trigger in Sections 203, and reauthorizing the federal 
examiner and observer provisions of Sections 6 and 8, Congress can send 
a strong message to Americans that everyone's vote does count. We hope 
Congress takes an affirming step for voting rights in America by 
incorporating these actions in the reauthorization of the Voting Rights 
    Thank you.