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


 
                     VOTING RIGHTS ACT: SECTION 5--
                         PRECLEARANCE STANDARDS

=======================================================================

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 1, 2005

                               __________

                           Serial No. 109-69

                               __________

         Printed for the use of the Committee on the Judiciary


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

                                 ______

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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
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
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
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             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
STEVE KING, Iowa
TOM FEENEY, Florida

                     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

                              ----------                              

                            NOVEMBER 1, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on the 
  Constitution...................................................     2
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

                               WITNESSES

Mr. Mark A. Posner, Adjunct Professor, American University, 
  Washington College of Law
  Oral Testimony.................................................     7
  Prepared Statement.............................................     9
Ms. Brenda Wright, Managing Attorney, National Voting Rights 
  Institute
  Oral Testimony.................................................    19
  Prepared Statement.............................................    21
Mr. Roger Clegg, Vice President and General Counsel, Center for 
  Equal Opportunity
  Oral Testimony.................................................    29
  Prepared Statement.............................................    32
Mr. Jerome A. Gray, State Field Director, Alabama Democratic 
  Conference
  Oral Testimony.................................................    44
  Prepared Statement.............................................    47

                                APPENDIX
               Material Submitted for the Hearing Record

Appendix to the Statement of Brenda Wright: Testimony of Brenda 
  Wright before the National Commission on the Voting Rights Act, 
  October 29, 2005...............................................    70
Appendix to the Statement of Brenda Wright: Letter from Isabelle 
  Pinzler, Acting Assistant Attorney General, Civil Rights 
  Division, Department of Justice, to Sandra Shelson, Esq., 
  Special Assistant Attorney General, State of Mississippi.......    79
Appendix to the Statement of Brenda Wright: Young v. Fordice 520 
  U.S. 273 (1997)................................................    86
Appendix to the Statement of Roger Clegg: Letter from Roger Clegg 
  to the Honorable Robert C. Scott, November 2, 2005.............    95
Material Submitted for the Record by Mr. Feeney during the 
  hearing:
    Peyton McCrary, et al., ``The End of Preclearance As We Knew 
      It: How the Supreme Court Transformed Section 5 of the 
      Voting Rights Act''........................................    96
Material Submitted for the Record by Mr. Chabot on November 1, 
  2005:
    Reno v. Bossier Parish School Board (520 U.S. 471, 117 S.Ct. 
      1491)......................................................   182
    Reno v. Bossier Parish School Board (528 U.S. 320, 120 S.Ct. 
      866).......................................................   202


          VOTING RIGHTS ACT: SECTION 5--PRECLEARANCE STANDARDS

                              ----------                              


                       TUESDAY, NOVEMBER 1, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chairman of the Subcommittee) presiding.
    Mr. Chabot. Good afternoon. This is the Subcommittee on the 
Constitution, and it will come to order now. This is the fifth 
in a series of hearings on the Voting Rights Act that we have 
held thus far. More specifically, this is the third in 
examining section 5 and the preclearance requirements it 
imposes on covered States and counties. Section 5 is one of the 
several temporary provisions set to expire in 2007.
    We have yet another distinguished panel with us here this 
afternoon. We are very fortunate to have such a distinguished 
panel. I appreciate the witnesses taking time out of their busy 
schedules and especially with the expertise that they have. And 
we are continuing to examine the impact and effectiveness and 
continued need for section 5.
    Section 5 was enacted in 1965 as part of the Voting Rights 
Act, along with several other temporary and permanent 
provisions, to end almost a century of discrimination against 
minorities in the political process. It was designed to prevent 
certain States and political subdivisions from undermining 
Federal efforts to enforce the constitutional guarantees of the 
14th and 15th amendments.
    As we discussed in our earlier hearing, section 4 of the 
Voting Rights Act set forth a formula to cover jurisdictions 
with a history of discrimination. To protect minority voters 
and the progress made to date, Congress required these covered 
jurisdictions to preclear all voting and election changes with 
the U.S. District Court for the District of Columbia or the 
Attorney General before being able to give effect to such 
changes.
    In submitting changes, covered States and counties are 
required to prove that such a change, ``does not have the 
purpose or effect of denying a citizen's right to vote on 
account of race, color or language minority status.''
    The Department of Justice and the U.S. District Court for 
the District of Columbia enforced section 5 by requiring 
covered jurisdictions to prove that such a change was not made 
with a purpose to discriminate and will not have the effect of 
making minority voters worse off. Such was the standard until 
2000 when the Supreme Court deviated from this standard in the 
case of Reno v. Bossier Parish, also known as Bossier II. In 
Bossier II the Supreme Court held that section 5 only required 
a covered jurisdiction to prove that a change was 
nonretrogressive in purpose and effect.
    The holding of the Court therefore allowed changes that are 
enacted with a nonretrogressive but discriminatory purpose to 
be precleared under section 5. Some suggest that this standard 
is contrary to the broad purpose of the Voting Rights Act in 
section 5, which is to prohibit discrimination in all forms.
    During this hearing, we will discuss Congress' intent in 
enacting section 5, the Department of Justice's and U.S. 
District Court for the District of Columbia's enforcement 
efforts prior to and after Bossier, and the potential solutions 
to remedy the impact if the decision is contrary to Congress' 
intent.
    Again, we very much appreciate such a distinguished panel 
as we have before us this afternoon. And I will now yield, I 
believe, to the gentleman from North Carolina, Mr. Watt, for 
the purpose of making an opening statement.
    Mr. Watt. I thank the Chairman for yielding. I am not sure 
how I got yielded to first, but I will take whatever order you 
want to take me in.
    Mr. Chabot. We would suggest 5 minutes, but----
    Mr. Watt. All right, 5 minutes.
    Mr. Chabot. Or less.
    Mr. Watt. Or less. Today is our fifth hearing on the 
reauthorization of the Voting Rights Act and the third in which 
we focus on section 5. Today we begin to consider whether the 
Supreme Court in a number of cases has strayed from the 
statutory intent of Congress in enacting section 5 through its 
interpretations of challenges under the act.
    Section 5 requires covered jurisdictions to submit proposed 
voting changes to the Department of Justice or a three-judge 
court for preclearance. The jurisdiction bears the burden of 
proving that the proposed change, ``does not have the purpose 
or effect of denying or abridging a citizen's right to vote on 
account of race, color, or language minority status.''
    For that case, the Supreme Court recognized that a voting 
change that was constructed with a discriminatory purpose 
violated section 5 and could not be precleared by the Justice 
Department or the three-judge court.
    Proof of discriminatory purpose or intent has always been a 
formidable challenge, and as modes of discrimination become 
more sophisticated and less obvious, proof of discriminatory 
intent increasingly seem to be practically insurmountable. Yet, 
for years, minority voters and their advocates shouldered that 
overwhelming burden where necessary to prove intent where a 
voting change in a section 5 jurisdiction was motivated by a 
racial animus and intent to discriminate.
    The Reno v. Bossier Parish school board, the so-called 
Bossier II case, on its facts was such a case. In Bossier II a 
Louisiana parish school board adopted a redistricting plan with 
the specific and successful intent to keep Blacks off the 
school board.
    Because no Blacks had previously served on the school 
board, however, the Supreme Court held that there was no 
retrogression; that is, there was no backsliding and, hence, no 
violation of section 5 in that case. The decision of the Court 
in Bossier II was a radical departure from prior judicial 
interpretations of section 5, many of which are addressed in 
the written submissions from the witnesses today.
    Under Bossier II, if blatant discrimination operates to 
keep a minority group, ``in its place,'' there is no violation 
of section 5.
    This cannot be what Congress intended in 1965 when it 
resolved to shift the advantage of time and inertia from the 
perpetrators of the evil to its victims as the Supreme Court 
noted in South Carolina v. Katzenbach. A rule of law that 
permits intentionally discriminatory policies that deliberately 
stagnate the progress of racial minority is counter to our 
democratic principles and invites racial hostility and 
polarization.
    I hope that these hearings will form the basis for us to 
address and correct the Supreme Court's decision in Bossier II 
and the corrosive effect it is having on political 
participation for minorities.
    Indeed, Mr. Chairman, as we prepare to say our final good-
bye to Rosa Parks whose courageous defiance served as a 
catalyst to the civil rights movement, it seems only fitting 
that we reaffirm that our Nation does not sanction the racial 
subjugation of minorities either on the bus or at the polls.
    Thank you, Mr. Chairman, and I look forward to hearing the 
testimony of the witnesses and thank the witnesses for being 
here to enlighten us here today.
    Thank you so much. I yield back.
    Mr. Chabot. Thank you. The gentleman yields back his time.
    The very distinguished Ranking Member of the full 
Committee, Mr. Conyers, is recognized for the purpose of making 
an opening statement. I would also note that a significant 
number of Members of the House, including myself and others, 
will be traveling to the gentleman's district, I believe 
tomorrow, for the purpose of attending the funeral of Ms. 
Parks.
    The gentleman is recognized.
    Mr. Conyers. Thank you, Chairman Chabot. I am delighted 
that my friend from North Carolina would couch his opening 
statements in the backdrop of the incredible outpouring of 
grief and sentiment about the contributions of the mother of 
the civil rights movement, whose third tribute, memorial and 
home-going, will take place in Detroit tomorrow. We have had to 
enlarge to two planes, now leaving; and I am glad that the 
Chairman of this Subcommittee, as well as other Members of the 
Republican Party, are going as well.
    The only thing I wanted to add to Mr. Watt's commentary is 
the fact that we are dealing with the most sensitive part, in 
my mind, of this reauthorization process, section 5. What we 
are going to be asked to do sooner or later is to look at a 
decision which has reversed over 3 decades of practice about 
how section 5 would be implemented.
    There are a couple of considerations here. Number one is 
that we have had a restriction of the application of section 5 
preclearance submissions that have been very, very noted 
under--as a result of Bossier II in particular. Also, the fact 
that in section 5 we intended to prohibit the implementation of 
racially motivated changes, and it is almost undeniable that 
Bossier, by a 5-4 decision, was not adequately decided.
    Now, this is not the first time that the Congress and this 
Committee have been called upon to rectify the problems in 
judicial interpretation of the Voting Rights Act of 1965. This 
has happened before, and it will probably be suggested that it 
happen again. It is extremely important that the way that we 
make sure that we don't slip back into the past is that the 
preclearance submission requirement be carefully gone over, and 
just to make sure that we all feel good about what we may be 
called upon to do, we just had to correct a court decision in 
the highest court of the land, in takings under eminent domain 
only last week in the Kelo case.
    So, sometimes it is our job. As we look back at the effects 
of the Supreme Court decision we realize that it is very 
important that we make the correction and that we don't let a 
case stand like that. I think that this is essentially what we 
are confronted with today; and I am very happy that we have got 
such a distinguished panel of witnesses.
    I look forward to a very stimulating discussion, and I 
thank the Chairman for the time and return what is remaining.
    Mr. Chabot. Thank you very much. The gentleman yields back.
    Are there any other Members that would like to make any 
opening statement?
    The gentlemen from Virginia, Mr. Scott is recognized.
    Mr. Scott of Virginia. Thank you, Mr. Chairman, and I thank 
you for convening the hearing.
    The purpose of these hearings is to establish a record to 
justify the reauthorization of section 5 of the Voting Rights 
Act. Jurisdiction covered by section 5 must receive prior 
approval from the U.S. Attorney General or prior judicial 
approval from the three-judge panel in the Federal District 
Court in Washington, D.C., for all proposed voting changes.
    The importance of this provision has been recognized by 
several civil rights organizations in previous hearings. A 
bipartisan congressional report in 1982 warned that without the 
section, discrimination would appear--would reappear overnight. 
Frankly, Mr. Chairman, I don't think it would take that long.
    Without prior approval, preclearance jurisdictions could 
proceed to elect to make changes in elections and have 
elections on what would later be determined by courts pursuant 
to a section 2 challenge to be illegal changes.
    Bringing a section 2 action is very expensive, more than 
what most voters or small groups may be willing to afford to 
vindicate their rights. And even if they were able to make a 
case and be successful, this would be years down the road by 
the time you take into account the time frame for litigation, 
including appeals. By then, the winner of the illegal election 
is an incumbent, and we all know from our experiences as well 
as from observing other races in which there is an incumbent 
and from testimony before this Subcommittee, that incumbency is 
a huge and, more often than not, dispositive advantage in an 
election.
    So it is clear that if we do not renew this section, we 
would essentially create a perverse incentive to pass illegal 
plans with no immediate recourse. Unfortunately, due to the 
2000 Supreme Court case, Bossier Parish, we do need to consider 
more than a simple renewal of section 5. We have to also renew 
and strengthen its traditional intent and purpose of 
disallowing voting changes with a discriminatory purpose as 
well as just effects. The Department of Justice, the courts and 
all proponents of section 5 have long understood and 
interpreted it to prohibit jurisdictions from implementing both 
purposeful discrimination and those that changes with 
retrogressive effect. However, the majority in Bossier Parish 
II effectively eliminated the purpose prong of the preclearance 
requirement.
    The Court held that section 5 was intended only to prevent 
specific instances in which changes would make minority voters 
worse off than they were prior to the change. The majority in 
that case incorrectly interpreted congressional intent in 
crafting section 5 by limiting its impact to those cases where 
there was the retrogression; and this leaves, of course, the 
absurd result that when a clear section 2 violation is offered 
in a change for preclearance,if the illegal plan is no worse 
than the existing illegal plan, the Justice Department would 
have to preclear it. That eviscerates the very purpose of 
section 5 preclearance.
    So Congress must not only reauthorize section 5, but we 
must also clarify its intent that section 5 preclearance would 
disallow and prevent all voting practices that have a 
discriminatory purpose.
    Thank you, Mr. Chairman. I look forward to the testimony of 
our witnesses.
    Mr. Chabot. Thank you, and the gentlemen yields back. I 
would note the attendance today, as well, of the gentleman from 
Georgia, Mr. Scott, who is not a Member of this Committee, but 
has been very studious, I would say, in attending many of the 
hearings we have had thus far, and we appreciate your 
attendance as well.
    At this time, I would like to introduce our very 
distinguished panel. Before I do that, I would note that, 
without objection, all Members will have 5 legislative days to 
submit additional materials for the hearing record.
    Our first witness this afternoon will be Mr. Mark Posner. 
Mr. Posner is currently an Adjunct Professor of Law at the 
University of Maryland's School of Law and at American 
University's Washington College of Law, as well as an 
independent consultant in the area of civil rights.
    Prior to teaching and consulting, Mr. Posner served as an 
attorney in the U.S. Department of Justice Civil Rights 
Division from 1980 until 2003. Between the mid-1980's through 
1995 he was one of two attorneys responsible for reviewing 
section 5 preclearance submissions and served as special 
section 5 counsel from 1992 until 1995.
    Prior to joining the Department of Justice, Mr. Posner was 
a law clerk to U.S. District Court Judge Harry Pregerson.
    We very much welcome you here this afternoon, Mr. Posner.
    Our second witness will be Ms. Brenda Wright. Ms. Wright 
currently serves as the Managing Attorney for the National 
Voting Rights Institute in Boston, Massachusetts. As Managing 
Attorney, Ms. Wright directs the NVRI's nationwide litigation 
program and has served as lead counsel for the Institute in 
landmark cases in Vermont and New Mexico, defending the 
constitutionality of campaign spending limits.
    Prior to joining the NVRI, Ms. Wright served as the 
Director of the Voting Rights Project at the Lawyers' Committee 
for Civil Rights Under Law, where she successfully argued the 
first Supreme Court case, Young v. Fordice, involving the voter 
law. In addition to authoring many publications on voting 
rights and campaign finance reform, Ms. Wright has testified 
before Congress and State legislatures on several occasions.
    We welcome you back, Ms. Wright.
    Our third witness will be Mr. Roger Clegg. Mr. Clegg is 
Vice President and General Counsel for the Center for Equal 
Opportunity, where he specializes in civil rights, immigration 
and bilingual education issues.
    Prior to his work at the Center, Mr. Clegg held a number of 
positions at the U.S. Department of Justice between the years 
1982 and 1993 including that of Assistant to the Solicitor 
General. From 1993 to 1997, Mr. Clegg was Vice President and 
General Counsel of the National Legal Center for the Public 
Interest, where he wrote and edited a variety of publications 
on legal issues of interest to business.
    Mr. Clegg is the author of numerous publications, writes 
frequently for USA Today, the Legal Times, and The Weekly 
Standard and serves as a contributing editor for the National 
Review online.
    We welcome you here, as well, Mr. Clegg.
    Our fourth and final witness this afternoon will be Mr. 
Jerome A. Gray. Mr. Gray currently serves as the State Field 
Director for the Alabama Democratic Conference, a position he 
has held for 25 years.
    During the 1980's, Mr. Gray played an instrumental role in 
organizing and mobilizing Black citizens at the county and 
municipal levels to successfully challenge the administration 
of discriminatory election systems. In addition, for more than 
20 years, Mr. Gray served as a member of the Alabama Advisory 
Committee to the U.S. Commission on Civil Rights, investigating 
civil rights injustices throughout the State.
    Mr. Gray is the coauthor of the Alabama chapter in the 
highly acclaimed publication edited by Chandler Davidson and 
Bernard Grofman, Quiet Revolution in the South: ``The Impact of 
the 1965 Voting Rights Act, 1965-1990,'' and has served on 
numerous panels discussing race, politics and voting.
    Mr. Gray is a life member of the Conecuh--am I pronouncing 
that correctly--County branch of the NAACP, and is the 
Political Action Chairman of the NAACP State Conference.
    We welcome the entire panel. As we said, we have a very 
distinguished panel here this afternoon.
    For those of you who may not have testified before the 
Committee, we have what is called a 5-minute rule where you are 
allowed to testify for 5 minutes. We have a lighting system; 
there are two separate lights there, the green light will stay 
on for 4 minutes, the yellow light will let you know you have 1 
minute to go and the red light will indicate you that your 5 
minutes are up. I won't gavel you down immediately, but we ask 
you to stay within the confines of the 5-minute rule.
    We will have 5 minutes to ask questions as well, so we will 
stick by that same rule.
    It is the practice of the Committee to swear in all 
witnesses appearing before it, so if you would all please rise 
and raise your right hand.
    [Witnesses sworn.]
    Mr. Chabot. All witnesses have indicated in the 
affirmative. We thank you very much, and we now begin with you, 
Mr. Posner, and you're recognized for 5 minutes.

   TESTIMONY OF MARK A. POSNER, ADJUNCT PROFESSOR, AMERICAN 
             UNIVERSITY, WASHINGTON COLLEGE OF LAW

    Mr. Posner. Thank you, Mr. Chairman, and good afternoon to 
you and to the distinguished Members of this Committee.
    It is an honor to testify before you today regarding the 
reauthorization of section 5 of the Voting Rights Act, one of 
our Nation's most important civil rights laws.
    It is my firm belief that Congress, as part of a section 5 
reauthorization, should legislatively reverse the Supreme 
Court's January 2000 decision in Reno v. Bossier Parish School 
Board. There are three reasons for this.
    First, the five-Justice majority in Bossier Parish badly 
misconstrued the meaning of the discriminatory purpose test 
contained in section 5. For over 34 years prior to this 
decision, section 5 prohibited the implementation of voting 
changes adopted with a racially discriminatory purpose. Now, 
according to the Court, racially motivated voting changes are 
almost always completely legal under section 5.
    Specifically, the section 5 purpose test now only applies 
if, per chance, a jurisdiction were to intend to cause a 
retrogression in minorities' electoral opportunity, but somehow 
messes up and adopts a change that, in fact, is not 
retrogressive. This is highly unlikely to occur, and in fact, 
in the nearly 5 years since Bossier Parish was decided, the 
Justice Department has reviewed approximately 76,000 voting 
changes and no such incompetent retrogressor has appeared.
    Adopting such a specialized and esoteric definition of 
discriminatory purpose is not what Congress intended when it 
enacted the Voting Rights Act in 1965. The plain meaning of the 
word ``purpose'' in section 5 encompasses any and all 
discriminatory purposes, not merely a purpose to cause 
retrogression.
    As the Supreme Court explained when it upheld the 
constitutionality of section 5 in 1966, Congress adopted the 
statute to respond to exceptional conditions by acting in a 
decisive manner through an uncommon exercise of congressional 
power. Clearly, Congress knew that this historic effort 
necessitated a prohibition on all purposeful discrimination in 
voting.
    Second, as a matter of actual practice, the Bossier Parish 
decision has substantially undercut the ability of the Justice 
Department and the District Court for the District of Columbia 
to employ section 5 to block the implementation of 
discriminatory changes.
    At the time that Bossier Parish was decided, a majority of 
the Justice Department's section 5 objections were based on 
discriminatory purpose, and the clear trend line from the 
1970's to the 1980's to the 1990's was that discriminatory 
purpose increasingly was the basis on which the Department was 
interposing objections. About four-fifths of the Department's 
objections to post-1990 redistricting plans were based on 
discriminatory purpose and about a third of the objections to 
the post-1980 plans were interposed on this basis.
    Not surprisingly, therefore, after Bossier Parish, the 
Justice Department has interposed many fewer objections to 
redistricting plans and to voting changes in general.
    Third, the section 5 discriminatory purpose test is fully 
capable of administration by the Justice Department and the 
District Court for the District of Columbia and does not raise 
any constitutional concerns. It may be that the Supreme Court's 
central problem with the section 5 purpose test is that it does 
not trust the Justice Department to apply this test in an 
appropriate manner.
    In 1995, a five-Justice majority of the Court averred that 
the Department was using the purpose test as a cover for 
implementing a near-unconstitutional policy of maximization. 
Then, in Bossier Parish, the same five Justices suggested that 
the purpose test itself might render section 5 
unconstitutional.
    Since purposeful discrimination is the core conduct 
prohibited by the 15th amendment, this statement seems 
explainable only if the five Justices were referring to the 
false purpose test they believe the Justice Department was 
enforcing. It is my conclusion, however, that the Justice 
Department, in fact, did not apply the section 5 purpose test 
in an unlawful or inappropriate manner.
    The Department utilized the well-established framework for 
conducting discriminatory purpose analyses set forth by the 
Supreme Court in the Arlington Heights case and also relied on 
the analytic factors described in the Department's procedures 
for the administration of section 5.
    The Department first began to rely extensively on the 
purpose test in the 1980's during the Reagan administration 
when William Bradford Reynolds was Assistant Attorney General 
for Civil Rights, and the purpose objections interposed 
thereafter reflected a continuation of the modes of analysis 
begun at that time. Still, in light of the concern expressed by 
the Supreme Court, Congress should consider what actions it may 
take to provide further assurance that the Justice Department 
and the District of Columbia court will employ the purpose test 
in an appropriate manner if Bossier Parish is legislatively 
reversed. Specifically, Congress should consider including 
statutory language and/or legislative history that would 
provide clear guidance to the Department and the District Court 
with regard to the manner in which the section 5 purpose test 
should be utilized.
    For these reasons, I believe that Congress should act to 
reverse the Supreme Court's decision in Bossier Parish to 
restore the section 5 purpose test to the meaning Congress 
intended when it enacted section 5 in 1965. Discriminatory 
purpose under section 5 should again mean discriminatory 
purpose.
    Thank you.
    Mr. Chabot. Thank you.
    [The prepared statement of Mr. Posner follows:]

                  Prepared Statement of Mark A. Posner




    Mr. Chabot. Ms. Wright, you're recognized for 5 minutes.

TESTIMONY OF BRENDA WRIGHT, MANAGING ATTORNEY, NATIONAL VOTING 
                        RIGHTS INSTITUTE

    Ms. Wright. Good afternoon, Mr. Chairman, and Members of 
the Subcommittee. I very much appreciate the opportunity to 
testify here in favor of reauthorization of the Voting Rights 
Act of 1965.
    I am here today to discuss in particular the need to fully 
restore section 5's protections against purposeful racial 
discrimination in voting. As you have indicated, Mr. Chairman, 
those protections were fundamentally weakened by the Supreme 
Court's January 2000 decision in the Bossier Parish case. In 
that decision, a narrow majority said that the Justice 
Department must approve certain racially discriminatory voting 
changes under section 5 even if the Justice Department 
determines that the discrimination was intentional.
    I believe the Bossier Parish decision was contrary to 
Congress' intent in enacting section 5 and contrary to well-
settled precedent. By its terms, section 5 bars any voting 
change that is racially discriminatory either in its purpose or 
its effect.
    Prior to the Bossier Parish decision, it was clear that the 
purpose and effect test of section 5 were independent, so that 
failure to satisfy either one meant that the voting change 
should not be precleared.
    A series of Supreme Court decisions in the 1970's and 
1980's established that a showing of retrogression was 
necessary to support an objection under the effects test, but 
also made it clear that any voting change that was the product 
of intentional racial discrimination was barred under section 5 
whether or not it was retrogressive. A good example of this was 
a 1975 case, City of Richmond v. United States, in which the 
Court explained in a very vivid way why a change with no 
unlawful effect should still be denied preclearance if adopted 
for a discriminatory purpose. In the Court's words, an official 
action, whether an annexation or otherwise, taken for the 
purpose of discriminating against Negroes on account of their 
race has no legitimacy at all under our Constitution or under 
the statute.
    For many years, the Justice Department relied on this 
understanding of the purpose test to deny preclearance to any 
changes that reflected intentional racial discrimination. But 
the Bossier Parish decision changed all this by ruling that the 
intent prong of section 5 covers only so-called ``retrogressive 
intent,'' that is, an intent to make things worse for minority 
citizens as compared to the status quo. Under that 
interpretation, a jurisdiction that never had minority 
representation on its elected body could continue to adopt new 
redistricting plans, intentionally designed to freeze out 
minority voting strength; and section 5 would provide no 
protection.
    The facts in the Bossier Parish case, as Representative 
Watt indicated, provide a good illustration of that. In 1990, 
African-Americans constituted approximately 20 percent of the 
population in the parish, yet no African-American had ever been 
elected to the 12-member school board. The school board refused 
to include any majority Black districts in the new plan even 
though the school board later stipulated that it was, ``obvious 
that a reasonably compact Black majority district could be 
drawn within Bossier City.''
    There was even testimony that two school board members 
acknowledged that the redistricting plan reflected opposition 
to Black representation or a Black majority district. The 
Supreme Court nevertheless ruled that the Justice Department 
was powerless to block the school board's plan under section 5 
because the plan did not have a retrogressive purpose. That 
decision greatly weakens protections of the Voting Rights Act.
    If this interpretation had been applied during the first 35 
years of section 5's history, Congressman John Lewis of Georgia 
probably would not have won election to the U.S. Congress in 
1986. In the early 1980's, Georgia enacted a discriminatory 
congressional redistricting plan that fragmented the Black 
population in the Atlanta area. The Georgia legislator who 
headed the redistricting committee openly declared his 
opposition to drawing so-called Negro districts, except that he 
did not use the word ``Negro;'' he used the racial epithet.
    Because of the clear evidence of racism behind the plan, 
the Justice Department objected even though the plan was not 
retrogressive. Georgia then redrew the district and the result 
was that Congressman Lewis was able to win election. But under 
the Bossier Parish decision, the Department of Justice would 
have been obliged to approve Georgia's original discriminatory 
plan.
    The decision has also had a serious detrimental impact on 
actual section 5 enforcement since it was issued. In 1980's and 
1990's, before the Bossier Parish decision, over 200 section 5 
objections were based solely on racially discriminatory intent. 
By contrast, in the first 4\1/2\ years after the Bossier Parish 
decision, only two objections were based solely on intent.
    All of this underscores the importance of restoring the 
original intent of section 5 when Congress reauthorizes it. 
When a jurisdiction deliberately acts to lock minorities out of 
electoral power, that jurisdiction should not be entitled to 
preclearance simply because minorities have always been 
discriminated against in the jurisdiction.
    Intentional racial discrimination should not be tolerated 
under section 5. Such a result is fundamentally inconsistent 
with our Nation's values.
    Thank you.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Ms. Wright follows:]

                  Prepared Statement of Brenda Wright




    Mr. Chabot. Mr. Clegg, you're recognized for 5 minutes.

 TESTIMONY OF ROGER CLEGG, VICE PRESIDENT AND GENERAL COUNSEL, 
                  CENTER FOR EQUAL OPPORTUNITY

    Mr. Clegg. Thank you very much, Mr. Chairman. I am 
delighted to have the opportunity to testify before the 
Subcommittee today.
    I am going to focus, as my co-panelists have focused, on 
the Bossier Parish decisions. But I also want to make clear 
that I have problems with the whole notion of reauthorizing 
section 5, and in my written testimony I go into more detail 
about why I don't think that section 5 should be reauthorized.
    And beyond that, I have other problems with the Voting 
Rights Act, including the bilingual ballot provisions and the 
results test in section 2. But I am not going to get into all 
that; I will just leave that to my written testimony. And today 
I will focus on the Bossier Parish decisions.
    By way of background, let me make clear that the Voting 
Rights Act really has two key provisions. The two most 
prominent provisions are section 2 and section 5. Section 2 
applies nationwide and bans any racially discriminatory voting 
qualification or prerequisite to voting standard practice or 
procedure.
    Section 5, on the other hand, is not nationwide in scope. 
Rather, it applies only to certain jurisdictions called 
``covered jurisdictions,'' and it requires them to preclear 
changes to voting qualifications and prerequisites to voting 
with either the Justice Department or the U.S. District Court 
for the District of Columbia.
    As a practical matter, that means that most of these 
changes are submitted to the Justice Department, and this 
includes anything from a relatively minor change like moving a 
voting booth across the street from the elementary school to a 
high school, to undoubtedly major changes like redrawing a 
State's congressional districts.
    What the Supreme Court said in the two Reno v. Bossier 
Parish School Board decisions was that these two statutes had 
very different purposes and that, because section 5 is aimed at 
changes in voting practices, it is violated only if the changes 
are retrogressive. That is, the whole purpose of section 5 was 
to enable the Justice Department to go after jurisdictions, 
particularly in the covered jurisdictions in the Deep South, 
that for years had stayed one step ahead of the people trying 
to enforce the 15th amendment by making a series of changes--
you know, tiny changes to keep one step ahead of the law 
enforcement officials.
    What the Supreme Court said was that, well, since that was 
the purpose of section 5, if a jurisdiction is not making a 
change that is retrogressive, section 5 was not intended to 
apply to it.
    Now, I think that the Supreme Court was correct in its 
interpretation of the language and intent of section 5, but of 
course, that is not really the issue today. The issue today--
because you all can change section 5, obviously, to make it 
clear if you think that the Supreme Court made a mistake. So 
the question today is, should you want to change section 5 so 
that, for instance, a potential violation of section 2 
justifies a preclearance denial under section 5?
    I think that would be a mistake. What my co-panelists are 
assuming is that if the Justice Department thinks that a 
jurisdiction acted with discriminatory purpose, that is proof 
that it acted with discriminatory purpose. But that is not the 
way, as a general matter, that our legal system works. Usually, 
before we have a decision like that, both sides ought to be 
able to argue their side of the case.
    But when you have a section 5 denial, you just have one 
side's opinion about that, without a trial or a formal hearing 
or anything of that sort. And, as the Supreme Court recognized 
in Bossier Parish II, section 5 contains, ``extraordinary 
burden-shifting procedures.''
    And while section 5 is normally aimed at a simple 
determination of whether or not there was backsliding--the kind 
of relatively technical and relatively straightforward factual 
determination that can be left to a bureaucrat, rather than a 
court of law--determining, for instance, whether there is a 
section 2 violation is much more complicated than that. You 
have to make a difficult legal appraisal, and you have to weigh 
the ``totality of the circumstances.'' And that is something 
that ought to be decided in congressional litigation rather 
than by a low-level bureaucrat.
    You know, it is one thing to give such an individual the 
authority to hold up a change; it is something else to give a 
person, an unelected official like that, the effective 
authority to order changes where no changes had been made.
    It can no longer be charged that all the Justice Department 
is doing in that case is the kind of thing that section 5 was 
intended to allow the Justice Department to do. If you all 
insist on overturning Bossier Parish II, you run a substantial 
risk of having--excuse me--of overturning Bossier Parish II, 
you run a significant risk of having the new legislation, the 
reauthorized section 5, struck down as unconstitutional.
    In his opinion for the Court, in Bossier Parish II, Justice 
Scalia wrote, ``Such a reading would also exacerbate the 
substantial federalism concerns that the preclearance procedure 
already exacts, perhaps to the extent of raising concerns about 
section 5's constitutionality.''
    Mr. Chabot. Mr. Clegg, are you about ready to wrap up?
    Mr. Clegg. Yes, I am.
    Mr. Chabot. Thank you.
    Mr. Clegg. As a consequence, I think it would be a 
mistake----
    Mr. Chabot. The gentleman from New York would like you to 
elaborate on that point.
    Mr. Nadler. Why would that raise a constitutionality issue 
on section 5, in your opinion?
    Mr. Clegg. Because what the statute would then be doing 
would be to give the Justice Department authority not just to 
make a relatively technical determination of whether or not a 
change in the voting procedure was retrogressive, but to make 
it a determination, depending on whether you were overruling 
Bossier I or Bossier II, if that was--there was a section 2 
violation, or that a change, while not retrogressive, wasn't, 
didn't go far enough to satisfy the Justice Department.
    Let me give you an example.
    Mr. Chabot. We can get into this in questioning. But if you 
would like to wrap up your testimony because we want to keep on 
track here.
    Mr. Clegg. The only other point I was going to make, Mr. 
Chairman, was to give one example of an unhappy side effect of 
overturning the Bossier Parish decisions.
    If the Justice Department refused to preclear a change that 
actually diminished discrimination, but--and this I think 
responds in part to what Mr. Nadler was getting at--but it 
didn't go far enough, as far as the Justice Department was 
concerned, and the reason it didn't go further, according to 
the Justice Department, was because of some kind of 
discriminatory animus, the denial would freeze in place a 
procedure that was actually worse than what the jurisdiction 
was proposing to change to.
    It would be much better to allow the change to go into 
place and make matters better, and then if the Justice 
Department wanted to bring an additional section 2 lawsuit to 
try to make things even better than that, they would have that 
authority. That, I submit, is the better approach.
    Thank you.
    Mr. Chabot. Thank you very much.
    [The prepared statement of Mr. Clegg follows:]

                   Prepared Statement of Roger Clegg



    Mr. Chabot. The gentleman, Mr. Gray, you're recognized for 
5 minutes. Thank you.

  TESTIMONY OF JEROME A. GRAY, STATE FIELD DIRECTOR, ALABAMA 
                     DEMOCRATIC CONFERENCE

    Mr. Gray. Thank you, Mr. Chairman.
    Chairman Chabot and distinguished Committee Members, it is 
a pleasure to have the opportunity to deliver this testimony 
before you today on the topic of the ongoing need for section 5 
of the 1965 Voting Rights Act.
    Prior to my 67th birthday on July 20th, I had a senior 
moment that moved me to consider drafting a resolution for our 
organization the Alabama Democratic Conference, celebrating the 
40th anniversary of the Voting Rights Act of 1965. And in 
looking at that draft resolution, I was concerned about and 
looking at the fact that the original act, passed with broad-
based bipartisan support and biracial support of the Members of 
Congress and people of goodwill across America, who lobbied for 
that to happen, it recognized the fact that the Voting Rights 
Act contributed greatly to a new spirit of race relations and 
cooperation and political and civic affairs in this country and 
in our State.
    And also, what I did, I drafted an op-ed piece that several 
State newspapers picked up, and we challenged governments 
around the State of Alabama to celebrate the 40th anniversary 
of the Voting Rights Act, asking also to call for key 
provisions of the Voting Rights Act to be renewed in 2007.
    Today, I just brought for review one from Selma that I 
picked up, where it all began, the resolution from the Selma 
City Council, signed by the mayor and the members of the Selma 
City Council, and also one from the Jefferson County 
Commission, which is a biracial group, three Whites, two 
Blacks, three Republicans, two Democrats.
    I will see that this Committee receives copies of 
resolutions that local governments around the State of Alabama 
are passing in support of reauthorizing the Voting Rights Act 
in 2007, so that you will see the record of evidence around the 
State of Alabama of jurisdictions who are in favor of the 
Voting Rights Act being renewed, particularly section 5.
    Recently, our organization held a convention celebrating 
the 40th anniversary of the Voting Rights Act, and we called--
one of the themes we had was a Marching Miracle Empowering a 
Powerless People. Indeed, the Voting Rights Act has allowed the 
State of Alabama to climb off the bottom in terms of racial 
representation and fairness.
    Forty years ago, Alabama had less than 12 Black elected 
officials. Today, we have more than 850, and we rank along with 
Mississippi, usually first and second, in terms of the number 
of Black elected officials in the Nation. So it is really 
important, you might say, to borrow a phrase from his novel, 
Light in August, it has been 40 years of ``peaceful 
astonishment.''
    But we should not confuse the success with obsolescence. I 
have personally witnessed one of the most astonishing things 
about section 5 preclearance in terms of its ability to nudge 
public officials to act in a positive way and to be more than 
inclusive as they go about reaching a consensus in that 
decision-making process. Let me cite an example or two to make 
my point.
    Two months ago the Barbour County Commission was in the 
process of adopting a new redistricting plan. In the 
preclearance process, the Department of Justice discovered that 
the Barbour County Commission had never submitted some polling 
place changes, dating back to the early 1990's. This delay in 
submitting these changes in a timely fashion calls the Barbour 
County Commission to seek out help in getting these late 
submissions precleared.
    One commissioner, who called me recently, is a car 
salesman. I like his style. He said ``Jerome, buddy, can you 
help us?'' When I told him I would, he replied, ``Buddy, come 
see us.'' Without reservation, I can say that the Voting Rights 
Act, section 5, in particular, has made unlikely buddies of 
people who are ready, willing and able to communicate in a 
civil, democratic way as we engage in the process of 
representative government and full civic participation.
    As we work through this issue of redistricting in Barbour 
County, the Commission had originally drawn a seven-member plan 
with three majority Black districts, one of which had a White 
incumbent. In that district, the Commission's first instinct 
was to draw a plan that reduced the Black voting age population 
percentage by 8 percent. However, when I heard about their 
plan, I called the Barbour County Commission and told them I 
would fully support almost any plan they developed so long as 
it did not retrogress or dilute the Black vote in these 
majority Black districts.
    At first they hemmed; then I hawed a little, using section 
5 of the Voting Rights Act as my rabbit's foot. Soon thereafter 
they invited me to help them in developing a fair plan. But I 
had my role, and they had theirs from a distance; and I said to 
them, You all can do it; just send me a copy of your plan when 
you're done.
    Well, you know what? They did better than I expected. And 
true to my word, I wrote a strong letter of support to the 
Department of Justice asking to grant expedited consideration 
to the Barbour County redistricting plan in the preclearance 
process.
    For the record, I want to mention two more instances of how 
the threat of section 5--what I call the rabbit's foot--being 
used for good, has worked to get local governments to do the 
right thing.
    In the city of Lanette, Alabama, in Chambers County in 
2004, I received a telephone call from a voter stating that the 
city clerk had been denying citizens the opportunity to pick up 
absentee ballot applications at city hall. Instead, the clerk 
was usurping her authority and taking the application forms to 
the voters' residences.
    I called the clerk and read her a section from the Alabama 
election law handbook. And I also indicated to her that she had 
no authority to deny giving absentee ballot forms to a citizen. 
I also told her that what she was doing amounted to a change in 
voting procedure that would have to be precleared by the 
Justice Department.
    In my own way, I persuaded her that we did not need anyone 
from the Department of Justice calling down to Alabama to tell 
us what was right to do. She obliged, and the election ran 
smoothly, and Lanette elected its first Black mayor in August 
of 2004.
    In my hometown of Evergreen, Alabama, in Conecuh County, I 
received a similar call from a voter who complained about a 
clerk's failure to produce a complete and fair voters list. At 
first, many names were omitted including my 94-year-old mother, 
a retired educator.
    I called the clerk, and I got the former mayor on the 
phone, and I reminded him of the election fiasco we had in 1980 
when the clerk at the time had prepared a sloppy voters list 
that omitted scores of Black voters from the official list. A 
Black candidate that we supported that year lost by four votes, 
and our organization, Democratic organization, NAACP, 
complained to the Department of Justice, and the Justice 
Department reviewed those complaints, found them to be 
legitimate, and for the next election sent down some Federal 
observers to monitor the election.
    In that case, with section 5's help, we found out that the 
Conecuh County Commission had changed its election system from 
single-member districts to at-large elections after 1965 and 
had not gotten them precleared. And we also learned that the 
county Democratic Executive Committee had changed its election 
procedure after the 1965 Voting Rights Act without submitting 
those changes for preclearance.
    At any rate, by reminding the clerk and the mayor about 
what had happened in 1980, they acquiesced and allowed for a 
fair voters list to be developed. The election went on without 
incident, and the city of Evergreen had the highest turnout in 
history, over 95 percent in 2004, and we elected our first 
Black mayor without a runoff. It was indeed ``peaceful 
astonishment.''
    Although the issue of monitoring bad proposals such as 
changes in registration, voting or election procedures has 
decreased dramatically since 1982, there have been State laws 
harmful to minority participation that have received our 
attention. The worst one that I recall came about after a law 
was passed in 1998, where voters could not receive an absentee 
ballot at a post office box. That had not been precleared. We 
went into Federal court with a three-judge panel, and they 
struck that down as unconstitutional.
    Earlier in my remarks I compared section 5 to a rabbit's 
foot. I like that reference because it takes a little rabbit to 
make folks do right. Then I urge you to keep some rabbit 
provisions on the books. As a son of the South, I know that a 
little rabbit ain't going to hurt nobody. We are used to it by 
now.
    Section 5 is edible and digestible. We have made tremendous 
progress. But we still must work to protect Black voters, and 
section 5 makes that possible.
    Thank you.
    Mr. Chabot.  Thank you very much, Mr. Gray.
    [The prepared statement of Mr. Gray follows:]

                  Prepared Statement of Jerome A. Gray



    Mr. Chabot. Before we get to the questioning round, let me 
just mention a couple of housekeeping things. We were scheduled 
to have another Voting Rights Act hearing tomorrow. Because of 
the going to Detroit for Rosa Park's services, we will not have 
that hearing; it will be next week. We have--at this point, we 
have two on Tuesday and one on Wednesday.
    I would also note that we have another hearing in this room 
at 4 o'clock, as well, so if we can keep it to one round of 
questions, in light of the number of hearings we will be 
having, perhaps that might be a reasonable thing to do. I 
appreciate that, because we will we have to clear the room and 
get set up for the next hearing as well.
    Mr. Chabot. At this time, the gentleman from New York.
    Mr. Nadler. I would just point out that next Tuesday is 
Election Day. Although there are no Congressional elections, 
there are a number of elections in a number of States and 
cities, and some Members may have to participate in those or 
even go vote.
    Mr. Chabot. If the gentleman would yield, I voted. I just 
went to the Board of Elections before I caught my flight here 
from Cincinnati and voted. I won't tell you how I voted, but I 
did vote.
    Mr. Nadler. You voted absentee ballot is how you voted.
    Mr. Chabot. Yes, that is right. Okay.
    I now recognize myself for 5 minutes for the purpose of 
asking questions. I will just direct this to the whole panel 
here. It is a couple of questions. You all to one degree or 
another already dealt with this issue, but one of the main 
things we are doing here is creating a record, because this may 
ultimately--there could be a lawsuit that could end up with the 
U.S. Supreme Court, and so we are trying to establish that 
record here.
    What does a weaker section 5 mean for minority voters, and 
what does it mean for covered jurisdictions? Is the purpose 
standard after Bossier II consistent with Congress' intent that 
the Voting Rights Act end, this country end racial 
discrimination in voting? I have 5 minutes, so about 1 minute 
apiece would about take up my time. Mr. Posner, we will begin 
with you and down the line.
    Mr. Posner. Thank you, I think that a particular focus is 
appropriate on redistrictings. Of course, as you well know, 
redistricting is a key part of the election process, and 
certainly a very significant change that is reviewed under the 
Voting Rights Act.
    In the 1990's, as I referred to in my testimony, as well as 
the 1980's, a very large number of objections were interposed 
by the Justice Department to redistrictings. About 7 percent of 
the redistrictings were objected to, 8 percent in the 1980's 
and 1990's. After 2000 about 1 percent, about 30 redistrictings 
were objected to. So many fewer plans were objected to.
    Section 5 had much less power and authority to prevent 
discriminatory plans from going forward. That, of course, has a 
very, very real impact on the opportunity of minority voters to 
participate in the political process.
    Mr. Chabot. Thank you. Ms. Wright.
    Ms. Wright. The precedent that we had under section 5 for 
35 years, prior to the Bossier Parish decision was really 
unbroken. In each case when the Court had an opportunity to 
consider it, the Court made it clear that regardless of 
retrogression, any racially discriminatory purpose that would 
violate the Constitution would also violate section 5.
    I think that standard has been very important. The 
Department has been applying it, was applying it for 35 years 
prior to the Bossier Parish decision. It was a critical part of 
the section 5 preclearance process, and as the numbers 
indicate, in looking at the changes in the numbers and kinds of 
objections since the Bossier Parish decision, has certainly had 
a dramatic impact. All of that, I think, really argues for the 
need to restore the intent test when Congress reauthorizes 
section 5.
    Mr. Chabot. Thank you.
    Mr. Clegg.
    Mr. Clegg. First of all, Mr. Chairman, I think you are 
exactly right that these hearings are very important, because 
there is likely to be a constitutional challenge on down the 
road. In fact, one of the things that I would encourage the 
Subcommittee to recommend to the full Committee is that there 
be full Committee hearings as well, not only on the issue that 
we are talking about today, but more generally on whether 
section 5 ought to be reauthorized and the other issues that I 
raised before.
    You know, in terms of whether the Bossier Parish II 
decision was consistent with Congressional intent, as I said, I 
think that is really not the issue today. I mean, there's no 
point in the Subcommittee trying to figure out what this 
Subcommittee might have intended 40 years ago. What you all 
need to decide is whether--when the section 5 is reauthorized, 
if it is reauthorized--what the language should provide for 
then.
    In terms of what this means for, you know, minority voters, 
I think if you decide to overturn Bossier Parish II, the answer 
will depend on the whim of whoever is making the decision at 
the Justice Department. If you have somebody that thinks that 
there ought to be a maximization of influence districts, there 
will be one set of results. If you have somebody that thinks 
there ought to be a maximization of majority Black districts, 
you will get another set of results. I don't know that either 
one is--can be said beforehand to be--pro- or anti-minority.
    Mr. Chabot. Thank you. Mr. Gray.
    Mr. Gray. I would like to discuss it in terms of a case we 
had, Dillard v. Crenshaw, where we sued a number of 
jurisdictions throughout Alabama, school boards, city councils 
and county commissions. We got the consent decrees in many of 
those cases, in that case, to go to, in those instances, single 
member districts. As a result, Blacks were elected to governing 
bodies as a result of that lawsuit.
    Unfortunately, in some of those localities, I would say 
probably three dozen or more, they did not get the consent 
decree codified. And the Federal judge in some of those 
instances, in order to correct the violation, he recommended 
that the number of districts be increased so that we would have 
a majority Black district. Since then, though, there has been a 
Supreme Court court case that says the judge can't do that.
    So now we are stuck with the possibility of if we don't get 
legislation, State legislation to codify those, the content 
decrees that created those districts by increasing the number 
of seats, all of those places will be in jeopardy. But because 
before the lawsuit, the Dillard v. Crenshaw lawsuit, none of 
those places had Black representation. So if you use the 
Bossier II standard, all of those places where we did not have 
Black representation where the number of seats, members on the 
commission or county school board or city council were 
increased, we would stand to lose representation, all of those 
governing bodies, if the Bossier II standard is applied.
    Mr. Chabot. Thank you very much, Mr. Gray. My time has 
expired.
    The gentleman from New York is recognized for 5 minutes.
    Mr. Nadler. Thank you. Let me ask Mr. Posner and Ms. 
Wright, with respect to redistricting, which is what we are 
talking about, to a large extent in this Bossier II, if 
Congress were to modify section 5 in response to Bossier II, 
what issues, if any, arising from Shaw v. Reno and its prodigy 
should we keep in mind? How does this affect it at all because 
Shaw v. Reno was a constitutionalized statutory decision?
    Mr. Posner. Well, Shaw v. Reno, as well as the subsequent 
case of Miller, posed certain limitations on a jurisdiction's 
ability to be race conscious in conducting the redistrictings. 
However, the Court has also held that a justification for such 
race consciousness is to avoid either a section 2 or a section 
5 violation. So if section 5 prohibits--well, section 5 does 
prohibit retrogression, and if section 5 again prohibits 
discriminatory purpose, that is completely consistent with the 
Shaw ruling.
    Mr. Nadler. So it would change how a court would look at a 
case in light of Shaw?
    Mr. Posner. It may change how the Court considers the 
justifications of the jurisdiction, but the jurisdiction even 
now, under the Constitution, can't act with a discriminatory 
purpose. So I think it would really just bring section 5 in 
conformance with the Constitution, in terms of prohibiting a 
discriminatory purpose as well as an effect.
    Mr. Nadler. Thank you.
    Ms. Wright.
    Ms. Wright. I think that's right. The Shaw v. Reno 
certainly did nothing to say that the traditional 
constitutional protections against intentional racial 
discrimination against minorities was somehow written out of 
the Constitution. So I don't see anything inconsistent at all 
between the idea of having an intent test, a meaningful intent 
test under section 5, and the proper observance of the limits 
that the court, that the Court indicated were required in Shaw 
v. Reno.
    I mean, I do understand that the Justice Department, after 
the 2000 census, developed some guidelines for jurisdictions on 
how the Department would take Shaw v. Reno into account and 
reconcile the concerns about race conscious redistricting that 
were there in Shaw v. Reno with the mandates of the Voting 
Rights Act. So this is not something that I think poses any 
apparent----
    Mr. Nadler. You don't think this would change those 
guidelines or would, in effect, have to take another look at 
those guidelines?
    Ms. Wright. No, I don't think so. I don't think so at all. 
I think they were written with the idea that the intent test is 
still part of section 5 probably.
    Mr. Nadler. Mr. Clegg and Mr. Gray, the same question.
    Mr. Clegg. I think that there are other constitutional 
problems with overturning Bossier Parish II. You know, what I--
--
    Mr. Nadler. Well, can you address the question?
    Mr. Clegg. Right. But I don't think that an inconsistency 
with Shaw v. Reno is one of the problems that I was talking 
with respect to overturning Bossier Parish II.
    I also think that where Shaw v. Reno does put limitations 
on what Congress can do and what the Justice Department can do, 
is if either section 2 or section 5 is being used to accomplish 
racial gerrymandering of the sort that the Supreme Court said 
was illegal in Shaw v. Reno.
    Mr. Nadler. That will be ineffective. That would be 
ineffective.
    Mr. Clegg. That will remain unconstitutional. And as long 
as section 5 and section 2 were not being interpreted or 
written in a way----
    Mr. Nadler. Okay. Thank you. Mr. Gray.
    Mr. Gray. I don't think those two things are inconsistent. 
You can change Bossier without that happening.
    Mr. Nadler. Thank you. Mr. Posner, I have time for just one 
more question, and Mr. Clegg.
    Mr. Clegg asserts that objections under section 5 are 
decided by low-level bureaucrats, I heard him say that in the 
Justice Department. I thought the Assistant Attorney General 
for Civil Rights, which is--it is a position requiring 
confirmation by the Senate, has final authority over these 
issues. Do you think it's fair--well, is that a fair 
description, and court staff to review that?
    Mr. Posner. Yes. The Department regulations require--the 
Attorney General has delegated his authority under section 5 to 
make decisions to the assistant attorney general, which, of 
course, is a presidential appointment confirmed by the Senate. 
Now the assistant attorney general, of course, can't 
investigate the 13,000 to 17,000 voting changes that are 
reviewed each year, the assistant attorney general has other 
responsibilities as well.
    So, naturally, just as in any other part of Government, 
these voting changes are reviewed by career officials, which I 
would say is actually beneficial, because these are career 
officials who are non-political, and I think that helps to 
ensure that the section 5 process is conducted in a non-
political fashion. But ultimately, any decision to object has 
to be made by the assistant attorney general.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Clegg, you can respond as well since Mr. Nadler asked 
for a response.
    Mr. Clegg. Well, I don't disagree with what Mr. Posner 
said, in so far as, I think he admits that, with thousands and 
thousands of these issues to review, as a practical matter the 
decisions frequently are made by low-level bureaucrats. I don't 
agree with Mr. Posner that just because somebody is not a 
political appointee doesn't mean that they don't have political 
views and prejudices.
    Mr. Chabot. Thank you. The gentleman's time has expired. 
The gentleman from Florida, the former Speaker of the House, 
Mr. Feeney, is recognized for 5 minutes.
    Mr. Feeney. Thank you, Mr. Chairman, Mr. Posner, while I 
ask a question of Mr. Clegg, I would like you to look at 
article I, section 4, clause 1, which I have outlined for you. 
I would ask you a question about that next.
    Mr. Clegg, one of the arguments that you make is an unhappy 
side effect of overturning the Bossier decision, is that we are 
likely to leave, in effect, an equally or more discriminatory 
procedure or process. But isn't it true, with respect to 
redistricting, at least since Baker v. Carr, after every 
census, jurisdictions are pretty much required, if they have 
single-member districts to redistrict.
    So, in fact, there is always a fall-back position that 
would require compliance with section 5, and you would not go 
back to a system that was equally or more discriminatory in 
redistricting situations.
    Mr. Clegg. You know, I am not sure I agree with that even 
in the narrow context of redistricting right after a census. 
You know, suppose that you had a----
    Mr. Feeney. Well, Congress for example, the Supreme Court 
often requires the equivalent of zero deviation unless you have 
a darn good justification. You can't very well get away with 
keeping a plan for 20 years after a census comes out.
    Mr. Clegg. I understand. But suppose that a jurisdiction 
decided to redistrict in a way that increased the number of 
majority-minority districts, but not enough to satisfy the 
Justice Department. The point I was making was that it was the 
Justice Department who would be better off--it would make more 
sense for the system to be that, in that circumstance, the 
improved system would be allowed to go forward--and if the 
Justice Department thought that the reason an even better 
system wasn't adopted was because of discriminatory intent they 
could bring a section 2 lawsuit.
    Mr. Feeney. I am going to interrupt, because I have limited 
time. But the effect is virtually every jurisdiction has a 
fallback position so they would come into compliance every 10 
years with section 5 if they are precleared, they have a 
commission or they have a court order. It gets bumped up to 
Federal Court, because eventually you have to have lines 
consistent with Baker v. Carr and consistent with the most 
recent redistricting.
    Mr. Posner, one of Mr. Clegg's, I think, important 
arguments because Scalia does raise it in his decision, is the 
federalism argument, that at least with respect to 
congressional redistricting, under article 1, section 4, clause 
1, which I just asked you to look at, basically State 
legislators have been given by the Constitution directly, the 
ability to prescribe the times, place and matter for 
congressional redistricting. But the second clause says that 
Congress may, at any time, by law, make or alter such 
regulations. So hasn't the Constitution, in fact, expressly, 
given Congress the ultimate ability to determine the times, 
places and matters of Congressional redistricting?
    Mr. Posner. Yes, but I guess the concern with regard to 
section 5 is that typically, of course, State and local 
jurisdictions can adopt a voting change or any other law, and 
it's presumed legal, unless someone goes to court and obtains 
an injunction. Section 5 reverses that situation because voting 
changes are presumed unlawful until preclearance.
    Mr. Feeney. I understand that Congress created section 5. 
The Constitution says any time we want we can take back the 
times, place and matter process for Congressional 
redistricting. So at least with respect to Congress, my view is 
that the federalism arguments actually are undermined by the 
express language of the Constitution.
    Mr. Posner, there is a law of statutory construction, which 
basically preassumes that Congress isn't frivolous. Now often 
in reality we are frivolous, but in certain language, there is 
a reason for it. To the extent that the Bossier II decision 
essentially makes the words or purpose superfluous, haven't 
the--didn't the decision sort of violate that fundamental rule 
of construction?
    In all likelihood, shouldn't the Court have assumed that 
Congress meant something by adding the words ``purpose'' in 
section 5?
    Mr. Posner. Absolutely. Certainly the thrust of my 
testimony is that after the Bossier II decision, the purpose 
test essentially has been read out of the statute.
    Mr. Feeney. Along those lines, Mr. Chairman, if I could 
have unanimous consent, your footnote 12, Mr. Posner, on page 4 
of your testimony, cites a study by Peyton McCrary, Christopher 
Seaman & Richard Valley, ``The End of Preclearance as We Knew 
It.''
    I think that would be important to submit for the record 
because what that study demonstrates is that the Court's 
decision has really neutered section 5, especially as it 
relates to redistricting preclearance. So I would ask unanimous 
consent that study be submitted as part of the record.
    Mr. Chabot. Without objection, so ordered. The gentleman's 
time has expired.
    [The information referred to can be found in the Appendix.]
    Mr. Chabot. The gentleman from Detroit--excuse me, the 
gentleman from Michigan, the distinguished Ranking Member of 
the Committee, Mr. Conyers, is recognized for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman. I appreciated the 
testimony of the witnesses. This is, to me, getting to one of 
the very most important decisions that we will be making in 
reauthorizing the Voting Rights Act of 1965. I just wanted to 
thank Mr. Clegg, counsel, for your candor, because you have 
come out--and we don't have time for it. But you really feel 
that the Voting Rights Act might be better off being 
reconsidered entirely, whether we should go forward with it.
    That being the case, you are the first witness that has 
taken a position that extreme. I wasn't prepared for that. Your 
testimony was pretty limited on the subject that brought us 
here. But since you mentioned it, I wanted to let you know that 
I had listened to your testimony carefully.
    Now, the problem that we are wrestling with here is whether 
there is a constitutional basis for turning Bossier II back, 
which said that the Justice Department was essentially 
powerless to block intentionally discriminatory voting changes, 
unless it found the jurisdiction acted with the retrogressive 
purpose of making things worse than they already were for 
minority voters. Is that essentially the issue, Mr. Posner, 
that brings us here today?
    Mr. Posner. Well, that is certainly one of the issues, or 
at least an issue that Justice Scalia raised in Bossier. It was 
a very perplexing statement by him in the Bossier Parish II 
decision since discriminatory purpose is always considered the 
core prohibition of the 14th and 15th amendments. So to just 
then turn around and say that having section 5 prohibit 
discriminatory purpose, that would somehow threaten or question 
the constitutionality of section 5, is just very hard to figure 
out.
    Mr. Conyers. Well, what constitutional considerations do we 
need to take in--as we go about making this consideration--I 
mean, this whole hearing really is, are we going to leave 
Bossier II like it is and continue this construction of 
preclearance, or are we going to turn it back the way it was 
for several decades prior? Is that a simplification, but 
correct interpretation of what we are doing here today in our 
discussions and hearings.
    Mr. Posner. Yes. I think there's a question of whether 
section 5 or not, whether the section 5 nondiscrimination 
standard is going to have some real authority and power to it, 
and what it did, what existed prior to the Bossier II decision.
    Mr. Conyers. Wouldn't we, Attorney Wright, be--well, I 
don't know how we could come out of a 2005 hearing going 
through section 5, again, and leaving Bossier untouched.
    Ms. Wright. I agree. I would like to speak to the question 
of Congressional power and authority that has been raised. I 
think that it, if anything, is clear, it's that Congressional 
power is at its zenith when Congress is addressing the problem 
of intentional racial discrimination. That is at the core of 
the 14th amendment, it's at the core of the 15th amendment, and 
it's really difficult to imagine any other area where Congress 
would have more plenary authority to take important 
prophylactic measures such as section 5 has proven to be, to 
assure that kind of discrimination does not affect the 
electoral process.
    Mr. Conyers. Are there any concerns, finally, that we might 
want to take into consideration that we want to be careful 
about? Because this is restorative. We are not adding anything 
when we look at Bossier. We are just turning it back to the way 
it had been.
    Mr. Posner. Well, I think the one concern that I mentioned 
in my testimony, is that the Supreme Court, or at least the 
then five-Justice majority of the Court, expressed real concern 
about the manner in which the purpose test was being 
implemented by the Justice Department. I mean, I disagree with 
their appraisal, but nonetheless, I think that this offers 
Congress the opportunity as part of reversing Bossier II then--
to provide some advice and guidance to the Justice Department 
and the District Court for the District of Columbia as to the 
proper manner in which the purpose test should be applied.
    In doing that, Congress would really be following the path 
that it followed back in 1982 when Mobile v. Bolden was then 
the case which Congress was seeking to legislatively reverse, 
and Congress decided that not only should the statute 
specifically go back to the standard that existed prior to 
Mobile, but that it was necessary to, in the legislative 
history, as well as in the statute, to provide guidance as to 
how this test should be implemented.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Conyers. Thank you, Mr. Posner.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. The gentleman from Virginia, Mr. 
Scott is recognized for 5 minutes.
    Mr. Scott of Virginia. Thank you, Mr. Chairman.
    Mr. Chairman, I want to follow up on what the gentleman 
from Florida said in terms of redistricting plans. If you have 
an illegal plan that is being rejected, you could end up with a 
plan. You have to change because of one man, one vote and an 
injunction could easily be obtained very cheaply if a State 
tried to proceed on, within a 10-year cycle without a 
redistricting plan.
    So if you are caught with an illegal plan and try to get 
something precleared, that may be better, but still illegal. It 
just seems to me that section 5 is the most convenient place to 
do it. Now, Mr. Clegg, you have suggested that changing it that 
way would subject section 5 to constitutional challenge.
    Mr. Clegg, could you give us a few Supreme Court cases that 
we could review that would help us understand your decision--
position. You don't have to do it now.
    Mr. Clegg. I am happy to address that. I think there may be 
two different issues here though that we are talking about. The 
fallback question with respect to a redistricting after census, 
is whether the--what I am assuming is, that there is a 
situation where the fallback may be worse than what the 
jurisdiction has proposed going forward with, but that is not 
as good as what the Justice Department would imply.
    Mr. Scott of Virginia. You can't fall back. Once you have 
submitted something, you have to have something. If the 
fallback is going to be worse, that is not going to be 
precleared either. So you cannot go forward with any plan. The 
court is going to come in and draw the plan for you for the 
next election. You are not going to be able to go backwards. 
But in terms of the Constitutional challenge, could you provide 
us with cases that would help us understand your position?
    Mr. Clegg. Well, I think if I understood your question 
correctly, Representative Scott, what I am raising as a 
constitutional problem, and what I think Justice Scalia was 
talking about in Bossier Parish II, was giving the Justice 
Department unilateral authority to block a voting practice or 
procedure that was not retrogressive.
    Mr. Scott of Virginia. Could you give us cases to help us 
on that? Names of cases. If you could submit those, I would 
appreciate it.
    Mr. Clegg. Sure. I am happy to do that. What I am going to 
do is take the cases and the passage from Bossier Parish II.
    Mr. Scott of Virginia. Okay. If that is your answer, that 
is fine. Mr. Gray, you had been involved in campaigns for a 
long time?
    Mr. Gray. Yes.
    Mr. Scott of Virginia. And helping people get elected?
    Mr. Gray. Yes.
    Mr. Scott of Virginia. Is there value in incumbency. Does 
an incumbent have a better shot at getting elected?
    Mr. Gray. Very much so.
    Mr. Scott of Virginia. Okay. You have been involved in 
section 5 cases?
    Mr. Gray. Yes.
    Mr. Scott of Virginia. Have you ever been involved in a 
section 2 case?
    Mr. Gray. Yes.
    Mr. Scott of Virginia. What is the relative expense in a--
is a section 5 more or--cheaper or more expensive than in a 
section 2.
    Mr. Gray. Less costly, and you can fix the problem much 
quicker.
    Mr. Scott of Virginia. If you had to wait for section 2, 
what kinds of costs are you talking about?
    Mr. Gray. Many times, thousands of dollars. You are talking 
about small jurisdictions and many times poor plaintiffs may be 
impacted negatively. Many of them wouldn't be able to launch 
the lawsuit any way.
    Mr. Scott of Virginia. But they would be protected if they 
tried--if someone tried to impose an illegal plan on a section 
5.
    Mr. Gray. Absolutely.
    Mr. Scott of Virginia. They could fight it.
    Mr. Gray. That's correct.
    Mr. Scott of Virginia. But are unable to fight it if they 
are relegated to section 2?
    Mr. Gray. Absolutely, that's correct.
    Mr. Scott of Virginia. And we don't go to--the fact that if 
you don't fix Bossier II, the fact that there's an underlying 
section 2 violation to begin with shows you that the community 
didn't have the resources to fix it under section 2. They have 
an opportunity under section 5, and they ought to fix it. Now 
you have negotiated, obviously, redistricting plans?
    Mr. Gray. Many.
    Mr. Scott of Virginia. If you don't fix it, and you have an 
area that never had any representation at all, and a fair 
analysis suggests that it ought to be three, majority-minority 
seats, if you have section 5, you can negotiate for 3.
    Mr. Gray. Yes.
    Mr. Scott of Virginia. If you don't have section 5 the way 
we would like it to be, with Bossier II, you might get stuck 
with 1 or 2 as the best you could do under negotiations, is 
that true?
    Mr. Gray. Right, or sometimes nothing.
    Mr. Scott of Virginia. Because nothing is no worse than you 
started off with.
    Mr. Gray. That's correct.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Mr. Clegg, I have heard everything you said, and I 
understand, I am just trying to figure out how we get past 
this. One of the concerns you raised, I think, was that you 
have a Justice Department, which is a bureaucracy, making a 
factual determination or a determination, which theoretically 
could be a concern.
    The problem is that it's the jurisdiction that is 
submitting the plan for preclearance that selects the venue to 
which it submits it. It can either submit it to the Justice 
Department for preclearance or it can submit it to a three-
judge court in the District of Columbia.
    Would it help address your concern if it were a three-
judge--I mean, does that part of your concern go away with a 
plan that is submitted to a three-judge court that has the 
authority to make a factual determination, or you are still 
equally troubled by that?
    I mean, I can understand how you might be troubled by 
having a bureaucracy make a decision. Does that help your 
concern at all, or does it not?
    Mr. Clegg. It does help. I think it is certainly less 
problematic.
    Mr. Watt. It is the jurisdiction that is seeking to 
implement the new plan that has that choice. They can have a 
factual determination by a court if they want to, right?
    Mr. Clegg. That is true, although, you know, I think that 
for the same reasons that my co-panelist was talking about, 
it's probably a lot more expensive and slower and more 
difficult to go the District Court route than the Justice 
Department route.
    Mr. Watt. You would rather that additional cost and 
position be on the individual citizen as opposed to the State 
or jurisdiction?
    Mr. Clegg. I am not saying that the additional costs should 
not necessarily be on either one.
    Mr. Watt. You would rather leave things as they are?
    Mr. Clegg. No. But I think what the--that the focus should 
be on whether or not there is, in fact, a purposeful 
discrimination. If you----
    Mr. Watt. But that is--I am sitting here reading the 15th 
amendment, section 1 says ``the right of citizens of the United 
States to vote shall not be denied or abridged by the United 
States or by any State on account of race, color or previous 
condition of servitude.''
    Section 2 says that Congress shall have power to enforce 
this article by appropriate legislation. Now, I can't imagine 
that you could be submitting to us that a local jurisdiction 
makes an intentional decision to discriminate on the basis of 
race, and that decision should go forward in the face of the 
clear language of the 15th amendment.
    Mr. Clegg. No, I----
    Mr. Watt. So how would you--let's just put aside the more 
difficult cases where you are making judgments about the extent 
of the discrimination, but let's just assume the basic case, as 
it was in Bossier, where the evidence was we intended not to 
have minority representation, we intended to abridge the vote 
of Black people. How would you address that without just 
allowing it to go forward, the system gets put in place, you 
got to have a vote before you can have a trial under section 2. 
Tell me how you had address that in your world. I guess that's 
the question I am asking. I am just perplexed.
    I understand the concern you are raising, but I don't 
understand how you would address that in a United States of 
America where Black people and White people both are trying to 
vote. I just don't understand how you would address it. Tell us 
how to address it. I mean, that is what these purposes, these 
hearings are about, to try to come up with some constructive 
means of making our democracy work. Tell us how you would 
address that.
    Mr. Chabot. The gentleman's time has expired, but the 
gentleman can respond to the question.
    Mr. Clegg. All right. Well, I think there are a number of 
questions in there. Let me go through them as best I can.
    First of all, Congressman Watt, before I forget the 
thought, the other problem that I have with your suggestion 
that there's really no--there shouldn't be any objection to the 
jurisdiction simply aside from going to court--is that under 
section 5, even if it goes to court, there is still this--the 
burden of proof in a quite extraordinary way, is shifted to the 
jurisdiction. In other words, they have to go into court and 
prove----
    Mr. Watt. The burden of proof in Bossier Parish was they 
came in and said we intended to do this. Are you saying that 
they ought to be allowed to do that?
    Mr. Clegg. No. So the first point I would make is that 
although I have fewer problems if the decisionmaker is a court, 
the Supreme Court itself has said that the burden shifting 
provisions in section 5, and those apply to court hearings, as 
well as to, you know, going through the Justice Department, are 
part of what raises these federalism concerns that I was 
alluding to.
    Mr. Watt. Federalism concerns are more dramatic than the 
express provisions of the 15th amendment?
    Mr. Clegg. Well, again, Congressman, your assumption is 
that because the Justice Department thinks----
    Mr. Watt. Oh no, I am talking about the three-judge court. 
I gave you that out.
    Mr. Clegg. Look. I think if you had a--and are you also 
giving me the out that there is also no longer any burden 
shifting?
    Mr. Watt. No.
    Mr. Clegg. Because if you do that, then it is starting to 
look a lot like a section 2 lawsuit.
    Mr. Watt. So they got it pretty clear, I mean, if you got 
to have the--but you got to have a disposition quickly. I guess 
that is why I kept asking what is your solution to this. You 
need a quick disposition so the election can go forward. You 
don't want people to intentionally discriminate. You want a 
decision quick. You want to not have the extra expense. You 
know, it seems to me that what Congress did was set up a system 
to accommodate all of those things, and you seem to be 
advocating for a different system, and I keep wondering what 
that system is.
    Mr. Clegg. Believe me, I will look into that, and I 
appreciate the opportunity. Let me also say though, 
particularly with respect to Bossier Parish--you know, I did 
not litigate the case. But it says here that the court, the 
lower court in that case, concluded that there was no evidence 
of discriminatory but nonretrogressive purpose.
    So I questioned, you know, the factual premise there. But 
there could be situations where there was such a finding. I 
don't dispute that.
    All right, now, your $64,000 question, what would I do? I 
would continue to have a Voting Rights Act. I am not that 
radical. Many of the provisions about having examiners and poll 
watchers and that sort of thing make perfect sense and ought to 
be continued--you know, no literacy tests and a lot of those 
things in section 4.
    I think that we ought to have a second section 2, but I 
would change section 2, so that it tracks the language that you 
so eloquently read from the 15th amendment, so that it is 
prohibiting the kinds of racial discrimination that are 
prohibited by the 15th amendment, but not pushing jurisdictions 
to racially gerrymander, which is unfortunately what I think 
what the results test does.
    Then, in terms of section 5, I think that there should be 
full hearings before the full Committee. You all should ask a 
couple of questions. Number 1, should the way that covered 
jurisdictions are defined----
    Mr. Watt. But before you go there, you finally worked your 
way into the same position, I think, that Mr. Posner was.
    Mr. Chabot. The gentleman's time has long since expired. 
But could he be brief?
    Mr. Watt. All right. I just wanted him to know that he was 
surprisingly close to Mr. Posner by the time he got through 
with that part of his presentation. I didn't mean to interrupt 
him.
    Mr. Chabot. Mr. Clegg, have you had an opportunity to 
finish your thought?
    Mr. Clegg. It think the only other thing I would say, Mr. 
Chairman, is I would make sure that the covered jurisdictions 
are accurately described, because I think that what--the 
jurisdictions that it made sense to cover 40 years ago may not 
be if same jurisdictions that ought to be covered now. I would 
use a purpose test rather than an effects test for section 5 as 
well.
    Mr. Chabot. The gentleman's time has expired. I would ask 
unanimous consent that the gentleman from Georgia be extended 5 
minutes to ask questions. Hearing no objection, the gentleman 
has 5 minutes.
    Mr. Scott of Georgia. Thank you very much.
    Mr. Chairman, again I appreciate your kindness and 
generosity in allowing me to ask questions and participate on 
the question.
    I think, Mr. Clegg, you have laid bare, I think, the 
seriousness of the challenge to this Voting Rights Act. Prior 
to your testimony, I did not really realize how in jeopardy the 
Voting Rights Act is. I think that it's very important for us 
to use this hearing to set as much of a record as we can to 
your basic argument on the constitutionality of this. I think 
that Bossier is indeed like a cancer, eating away at the Voting 
Rights Act.
    Would you not agree that the best argument for us going 
forward is to go directly to the 15th amendment and to 
illustrate point by point just how Bossier has acted to deny 
and abridge an individual's right to vote based upon race, 
based upon background, servitude, as so eloquently stated by my 
colleague, Mr. Watt from North Carolina?
    Mr. Clegg. That is absolutely right.
    Mr. Scott of Georgia. With that in mind, could I not go to 
you, Ms. Wright, and to you, Mr. Posner and to you,
    Mr. Gray, and take the remaining moments that I have, of 
trying to get on record directly examples of how this does, in 
fact, abridge an act against the 15th amendment?
    One point, if I may add to that, just to start us off is, 
is this not true that prior to Bossier, the Justice Department 
objected to about 8 to 9 percent of the cases that came before 
them? Since Bossier, they have objected to only 1 percent. I 
think that is some damaging evidence in itself.
    But if I could just allow the rest of my time,
    Mr. Chairman, if Ms. Wright and Mr. Posner and Mr. Gray 
could give us some specific examples of how this, indeed, could 
violate the 15th amendment.
    Ms. Wright. Well, I think that probably the most vivid 
example was the one that I gave during my testimony of the 
impact this decision would have had if it had been in effect in 
the 1980 on the creation of Congressman Lewis' district.
    Mr. Scott of Georgia. Of Georgia?
    Ms. Wright. Yes. Where there was outright evidence that the 
head of the redistricting committee was routinely describing 
African-Americans in his State using racial epithets and 
declaring that he would never create such a district.
    Mr. Scott of Georgia. I might add that I was there as a 
member of the Georgia legislature when that happened. You are 
absolutely correct.
    Ms. Wright. You have insight to this. I would also add is 
very important, the misconception that has been put forward 
here if you have an intent that is being administered by the 
Justice Department, that is somehow a standardless test, 
nothing could be further from the truth.
    The standards for examining whether a change is 
intentionally discriminatory are very well established. You 
follow the set of factors that is listed in the case of 
Arlington Heights in 1977, the Supreme Court decision, which 
has a set of factors that you look at, including the impact of 
the decision on racial minorities, the sequence of events 
leading up to the decision to enact the change, the degree to 
which the jurisdiction departed from normal procedures in the 
course of its decisionmaking and a variety of other factors 
that are very well established and which the Justice Department 
used very successfully for 35 years routinely to examine these 
kinds of changes, and only objected in a very small percentage 
of the overall number of submissions that came to the Justice 
Department.
    But in those cases where the Justice Department did object, 
the preclearance requirement and the intents standard played an 
absolutely crucial role in bringing us to where we are today, 
which is a lot of progress compared to where we were 40 years 
ago.
    Mr. Scott of Georgia. Mr. Posner.
    Mr. Posner. As I indicated in my written testimony, the 
purpose test first began to be enforced under section 5 with 
real vigor when Assistant Attorney General Reynolds was in 
charge of the Civil Rights Division. It first began with 
objections to about 25 redistrictings based upon discriminatory 
purpose, 25 redistrictings by county governing boards in 
Mississippi.
    Often the situation that existed with regard to the 
redistrictings that were objected to was that the Black 
population was concentrated in one city located more or less in 
the center of the county. And the plan that was submitted by 
the county board of supervisors, what it did was draw each 
district into that city, so that you had five districts weaving 
their way into the Black population located in that city, 
fragmenting that Black population among the four, five 
districts, thereby significantly minimizing the opportunity of 
Black voters to elect candidates by choice, in fact, preventing 
Black voters in counties with significant Black populations 
from electing any member of the county board of supervisor, 
county board of supervisors.
    As a result of these objections, these purpose objections 
by the Justice Department, the county, of course, couldn't then 
go back to the old plan as was indicated. The county had to 
adopt a new redistricting plan, and that was mandated by one 
person, one vote. The county adopted new plans that did not 
fragment Black population in this manner, and thereby giving 
Black voters significant opportunities to elect candidates of 
their choice onto the boards of supervisors.
    Mr. Chabot. The gentleman's time has expired. Mr. Gray, I 
think you were asked to respond. Would you like to respond?
    Mr. Gray. Yes. I do not see making sense for discriminatory 
intent to be allowed in any instance, but in one county in 
Alabama that was part of that redistricting loss, Chilton 
County, where they had agreed to a cumulative vote system that 
with seven seats on the council, and on the county commission 
and on the county school board, on the county commission they 
have had add least three or four voting cycles using cumulative 
voting. That system was challenged by some plaintiffs in the 
county.
    Now what they are asking to do is to go back to what they 
had prior to the lawsuit, where we were able to get a Black 
member elected to the Chilton County Commission using 
cumulative voting. If we apply the Bossier standard, if you go 
back to what they had prior to the lawsuit, there would be no 
opportunity for Blacks to have representation because the Black 
percentage in the county is not high enough to create districts 
with, say, four or five seats, which they had four or five 
members, which they had prior to the lawsuit.
    So Blacks will be shut out. If you said the standard that 
they would be allowed to use, would be what they had prior to 
the lawsuit, then Blacks in Chilton County would never have 
representation on the county commission.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Feeney. Mr. Chairman, I wonder if I might request 
unanimous consent for 1 minute to ask a question.
    Mr. Chabot. Without objection.
    Mr. Feeney. Thank you. This really goes to anybody. I 
argued earlier that Congress, at least intentionally, shouldn't 
act with frivolity, but I am going to go ahead and just do 
that. I have been trying to build a record, I think, with most 
of my colleagues here--and by the way, Mr. Chairman, it doesn't 
feel that bad being outnumbered on a partisan basis. We have 
for most of these hearings, at least on this issue.
    But to be frivolous for a few seconds, if you have a few 
minutes, Mr. Posner, you served with Chief Justice Roberts in 
the Justice Department. He probably has at least a passing 
familiarity with the enforcement of the Voting Rights Act.
    I just wanted to know whether Mr. Posner or anybody else, 
something beyond superstition or a hunch, had any guesses as to 
where Chief Justice Roberts or potential Justice Alito comes 
down on the constitutional issues. We have got three Justices 
that believe in equal protection or federalism are implicated, 
that being Thomas, Scalia and the now-deceased Rehnquist. We 
have had Kennedy sort of align, for the most part, with those 
Justices, and O'Connor has always been a court of one for the 
last 10, 15 years on these issues.
    Does anybody have any guess for us that they want to make 
based on some sort of evidence. Mr. Posner, I would love to 
here what, if anything, you are willing to tell us.
    Mr. Posner. Well, the Chief Justice was serving in a 
different part of the Department than I was. So I didn't have 
any personal contact with him when he was a member of the 
Department.
    It is very difficult to guess. He has indicated that he has 
great respect for stare decisis, that he believes in that 
principle and the importance of that principle. The Supreme 
Court has, on at least two occasions, upheld the 
constitutionality of section 5. The Court was well aware of the 
federalism issue, but thought that the 15th amendment issue, 
the 15th amendment concerns in terms of the right to vote, as 
well as the record that Congress established in terms of 
justifying section 5, meant that that section 5 should be 
upheld as being constitutional.
    So I think we go back to the record that Congress is trying 
to establish. I think that is critical in showing that there is 
a continuing need for section 5. But predicting a vote is, of 
course, a very difficult thing to do.
    Mr. Chabot. The gentleman's time has expired. Anyone else 
want to weigh in on that?
    Ms. Wright. I also would be reluctant to speculate about 
the vote of an individual Justice, but would emphasize but no 
matter who is on the Court, it certainly is of the most 
critical importance of this Committee to do as thorough a job 
as possible in examining what the Voting Rights Act has 
accomplished in the covered jurisdictions, what the continuing 
problems are, what the likely effect would be, if its 
protections were removed.
    I think we have already gone a long way toward doing that 
in some of the testimony that I have seen so far in some of 
these hearings. But there is certainly a lot more that can and 
should be done to document the record of discrimination and 
voting rights enforcement in the covered jurisdictions. That is 
critically important no matter who is on the Court.
    Mr. Chabot. Thank you. Anybody else? Mr. Clegg.
    Mr. Clegg. I agree that there are going to be at least five 
Justices who are going to be very sensitive to these federalism 
concerns and to wanting to make sure that the Congress is 
acting pursuant to its enumerated powers. So however you think 
you are going to come down, you need to be careful and have the 
full hearings. I think also, you know, come into them with, you 
know, an open mind, not with a verdict first, trial afterwards-
type mind set, this is a matter of policy, doesn't make sense 
to keep the statute in exactly the same defining--covered 
jurisdictions in exactly the same day.
    Mr. Chabot. Mr. Gray, do you want to gaze into the crystal 
ball here?
    Mr. Gray. No. I am not going to venture on that one.
    Mr. Chabot. At least you won't be wrong. Okay.
    Thank you very much. I want to thank the whole panel for 
their very excellent testimony here this afternoon.
    I want to, once again, mention that we need to clear this 
room as expeditiously as possible, because we do have a hearing 
starting in 6 minutes on an entirely different issue here.
    If there's no further business to come before the 
Committee, we are adjourned.
    [Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Appendix to the Statement of Brenda Wright: Testimony of Brenda Wright 
 before the National Commission on the Voting Rights Act, October 29, 
                                  2005




   Appendix to the Statement of Brenda Wright: Letter from Isabelle 
  Pinzler, Acting Assistant Attorney General, Civil Rights Division, 
   Department of Justice, to Sandra Shelson, Esq., Special Assistant 
                 Attorney General, State of Mississippi



              Appendix to the Statement of Brenda Wright: 
                  Young v. Fordice 520 U.S. 273 (1997)



 Appendix to the Statement of Roger Clegg: Letter from Roger Clegg to 
            the Honorable Robert C. Scott, November 2, 2005



 Peyton McCrary, et al., ``The End of Preclearance As We Knew It: How 
   the Supreme Court Transformed Section 5 of the Voting Rights Act''



   Reno v. Bossier Parish School Board (520 U.S. 471, 117 S.Ct. 1491)




   Reno v. Bossier Parish School Board (528 U.S. 320, 120 S.Ct. 866)



                                 
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