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



 
VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION OF THE RETROGRESSION STANDARD

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

                                HEARING

                               BEFORE THE

                    SUBCOMMITTEE ON THE CONSTITUTION

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            NOVEMBER 9, 2005

                               __________

                           Serial No. 109-74

                               __________

         Printed for the use of the Committee on the Judiciary


      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 9, 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 John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, Member, Subcommittee on the 
  Constitution, and Ranking Member, Committee on the Judiciary...     2
The Honorable Jerrold Nadler, a Representative in Congress from 
  the State of New York, and Ranking 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...................................................     3
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on the 
  Constitution...................................................     5
The Honorable John Lewis, a Representative in Congress from the 
  State of Georgia...............................................     6
The Honorable David Scott, a Representative in Congress from the 
  State of Georgia...............................................     7
The Honorable Sanford D. Bishop, Jr., a Representative in 
  Congress from the State of Georgia.............................     8
The Honorable Steve King, a Representative in Congress from the 
  State of Iowa, and Member, Subcommittee on the Constitution....     9

                               WITNESSES

Mr. Theodore M. Shaw, President and Director-Counsel, NAACP Legal 
  Defense and Educational Fund, Inc.
  Oral Testimony.................................................    12
  Prepared Statement.............................................    14
Ms. Anne W. Lewis, Attorney, Strickland Brockington Lewis LLP
  Oral Testimony.................................................    30
  Prepared Statement.............................................    31
The Honorable Tyrone L. Brooks, Sr., Member, Georgia General 
  Assembly, and President, Georgia Association of Black Elected 
  Officials
  Oral Testimony.................................................    37
  Prepared Statement.............................................    38
Mr. Laughlin McDonald, Director, Voting Rights Project, American 
  Civil Liberties Union, Fnd.
  Oral Testimony.................................................    49
  Prepared Statement.............................................    50

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Lewis, a Representative 
  in Congress from the State of Georgia..........................    80
Material Submitted for the Record by Mr. Chabot on November 18, 
  2005:
    Prepared Statement of Theodore S. Arrington, Professor and 
      Chair, Department of Political Science, University of North 
      Carolina at Charlotte......................................    82
    Letter from MALDEF, NCLR, NALEO, and LULAC to the Honorable 
      Steve Chabot regarding Georgia v. Ashcroft and the Latino 
      community..................................................   133
    Prepared Statement of Robert A. Kengle, former Deputy Chief, 
      Voting Section, Civil Rights Division, Department of 
      Justice....................................................   134
    Georgia v. Ashcroft (539 U.S. 461, 123 S.Ct. 2498)...........   147














VOTING RIGHTS ACT: THE JUDICIAL EVOLUTION OF THE RETROGRESSION STANDARD

                              ----------                              


                      WEDNESDAY, NOVEMBER 9, 2005

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:03 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chair of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order.
    I'd like to thank the witness panel for being here, and the 
Members. We'll have a number of Members coming here shortly.
    We understand that we're going to have votes here sometime 
relatively soon, so we're going to try to get started as 
quickly as possible and as on time as possible.
    We want to welcome and thank everyone for being here this 
afternoon. This is the Subcommittee on the Constitution. I'm 
Steve Chabot, the Chairman of the Committee.
    It's the seventh in a series of hearings on the Voting 
Rights Act that's been held, and the fourth examining section 5 
and the preclearance requirements the section imposes on 
covered States and counties. Section 5 is one of several 
temporary provisions set to expire in 2007 if Congress does not 
act to reauthorize.
    This afternoon, we will continue our examination of recent 
Supreme Court decisions. In particular, we'll focus on the 
impact that these cases have had on section 5's ability to 
protect minority voting rights.
    I'd like to thank our very distinguished panel of witnesses 
for being here today. I know that this is a topic of interest 
to many, and look forward to today's discussion.
    Congress enacted section 5 in response to efforts by 
certain covered States and counties to undermine advances made 
by minorities in seeking equal treatment under the law. Section 
5 prevents covered jurisdictions from enacting any voting or 
election change until it has been precleared by the Department 
of Justice or by the U.S. District Court for the District of 
Columbia.
    To successfully preclear a change, a covered jurisdiction 
must establish that the change ``does not have the purpose and 
will not have the effect of denying or abridging a citizen's 
right to vote on account of race, color, or language minority 
status.''
    As we've discussed in prior hearings, voting changes 
submitted under section 5 are evaluated under the retrogressive 
standard, as set forth in the 1976 case Beer v. United States, 
which ensures that ``the ability of minority voters to 
participate in the political process and to elect candidates of 
choice is not diminished by the voting change.''
    This was the standard until 2003, when the Supreme Court 
deviated from the straightforward retrogressive application in 
Georgia v. Ashcroft. Upholding the State of Georgia's state 
senate redistricting plan, the U.S. Supreme Court determined 
that a retrogression analysis requires a ``totality of the 
circumstances'' evaluation, including examining a number of 
factors; not just the ``comparative ability of minorities to 
elect candidates of their choice,'' when determining whether a 
plan is retrogressive under section 5.
    Subsequent attempts to administer Georgia's retrogressive 
analysis have proven to be inconsistent. Moreover, the Georgia 
decision raises questions as to what voting and election 
changes Congress intended section 5 to prohibit.
    This hearing will continue to focus on the purpose of 
section 5; specifically, the impact of the 2003 Georgia v. 
Ashcroft decision on minority voters and the enforcement of 
section 5 by the Department of Justice and the U.S. District 
Court.
    Again, we will look forward to the panel's testimony this 
afternoon and the questioning that we'll have an opportunity to 
do.
    That concludes my statement. I'll now yield to the 
gentleman from New York, the Ranking Member of this Committee, 
Mr. Nadler.
    Mr. Nadler. The Honorable Ranking Member of the full 
Committee, the gentleman from Michigan, first.
    Mr. Chabot. Okay. Without objection, the distinguished 
Ranking Member of the full Judiciary Committee, Mr. Conyers, is 
recognized.
    Mr. Conyers. Thank you, Chairman Chabot. I'm so happy that 
we have these four witnesses here. And I agree with you that 
this is a very important discussion that we're embarking upon.
    Georgia v. Ashcroft: can it be made workable? In the Texas 
congressional redistricting plan, we packed in four and we 
dismantled four influence districts. We tried this. And now the 
people that are behind the plan are holding up the Voting 
Rights Act of 1965, of all things, to justify what they did.
    Now, what happened in the Georgia case is that it was 
remanded before we could get it ended. This other Georgia case 
came in, and they held everything that they were doing moot 
until then. And so we ended up with an independent finding.
    And so what I'm here to suggest to you is that we're 
tossing around the standard way we've looked at this question, 
with opportunity districts, versus the new way that we're 
looking at it, with influence districts. And we're going to 
have to come to some conclusion here.
    And your contribution to this discussion is going to be 
very important, because we've seen what happened in Texas; 
we've seen what's happened in Georgia. We realize there was 
some untimely procedural intervention that prevented Ashcroft, 
the Ashcroft case, from coming to a full resolution.
    So we want you to be giving us the advantage of your 
thinking about the future of the Voting Rights Act of 1965, not 
from hindsight, but where we're going in the future. And that's 
what we've got to examine here today.
    There are those who think that we can work out a compromise 
on this. There are others who tell me that we've got to--that 
this is the fork in the road; that we've got to come together 
and try to decide which way we go. And so I'm hopeful that your 
thinking and discussions on this will help lead us into a 
result that will stand the historic test of time.
    Does anybody want me to yield to them? Mr. Scott? Oh, 
unless everybody is going to take their own time. Then I'll 
turn my time back in. I thank you very much, Mr. Nadler and Mr. 
Chabot, for allowing me to go first.
    Mr. Chabot. Thank you very much, Mr. Conyers. We appreciate 
your statement. Mr. Nadler, did you want to make a statement?
    Mr. Nadler. Yes, thank you, Mr. Chairman. Mr. Chairman, I 
want to join you in welcoming our distinguished panel of 
witnesses. I look forward to their important testimony.
    The question of retrogression, especially as raised in 
Georgia v. Ashcroft, is of paramount importance. It goes to the 
heart of how we measure the ability of voters to express their 
will at the polls in a meaningful and effective manner.
    The Supreme Court's decision has met with a great deal of 
criticism. Ultimately, Congress must decide on language that 
will in some concrete manner provide minority voters with the 
tools they need to extract from voting officials in the Federal 
Government a meaningful result.
    Applying a retrogression standard is, in the final 
analysis, a very fact-based exercise. Generalities will be of 
little help if we cannot provide clear guidance that will 
protect voters from being deprived of the ability to have their 
voices heard and to affect the outcome of elections.
    It is my hope that today's witnesses can give us some 
concrete guidance as to how the Georgia v. Ashcroft decision 
has been applied, what its limitations and consequences have 
been, and how in a really practical sense Congress should deal 
with the problem of devising a meaningful retrogression 
analysis.
    I look forward to the testimony. I yield back the balance 
of my time. And I must add, unofficially, I am delighted to see 
a sign here that says ``Representative Brooks.'' I recall a 
time when Representative Brooks was Chairman of this 
Committee--not perhaps the same Representative Brooks. Thank 
you, Mr. Chairman.
    Mr. Chabot. Thank you very much. The gentleman from 
Virginia, Mr. Scott, is recognized.
    Mr. Scott of Virginia. Thank you, Mr. Chairman. Mr. 
Chairman, American's long and deliberate misadventure with 
segregation was ended by many things, including the civil 
rights movement sparked by Rosa Parks. But nothing dismantled 
the ``Jim Crow'' South and created true opportunities for equal 
political participation more than the Voting Rights Act of 
1965.
    By tearing down barriers to equal opportunity for 
minorities at the ballot box, the Act removed the essential 
political mechanism that maintained the legal structure of 
segregation. As the Supreme Court has said, the equal right to 
vote is fundamental because it is ``preservative of all 
rights.''
    Mr. Chairman, the genius of the Voting Rights Act is not 
only that it abolished literacy tests and other schemes which 
had been used to deny Blacks and other minorities the right to 
vote, it also prohibited--under section 5 of the Act, it 
prohibited the jurisdictions with a history of discrimination 
from implementing new voting practices without first having 
those practices precleared by Federal officials.
    This important provision eliminated the incentive that 
covered jurisdictions would have from coming up with new 
schemes to dilute minority voting strength, and benefitting 
from their illegal activity while the victims file lawsuits or 
go through the legal process. Sometimes that takes many years; 
sometimes those groups, the victims, can never come up with the 
funds necessary to vindicate their rights.
    More than 10 years after the passage of the Voting Rights 
Act, the Supreme Court has interpreted ``discriminatory 
effect'' to mean retrogression and that the minority community 
is made worse off by the change.
    The Beer decision, Beer v. U.S., went further, to define 
retrogression as a failure to preserve the ability of minority 
voters to elect candidates of their choice. This standard was 
ratified when the Congress extended section 5 in 1982, and was 
consistently applied by the courts and the Department of 
Justice for more than a quarter century.
    Recent cases have raised questions about exactly what the 
standard is now, and so several questions need to be addressed. 
And one is whether or not you can trade a district where the 
minority community has an ability to elect a candidate for 
influence districts where they do not have the ability to elect 
candidates. And another is, if you slightly dilute a district's 
minority population, but it still has the ability to elect, can 
you consider the establishment of influence districts?
    Mr. Chairman, I look forward to the testimony of our 
witnesses. Section 5 and other expiring provisions are 
essential to ensuring fairness in our political process and 
equal opportunity for minorities in American politics. And so I 
think it's essential that we strengthen section 5 and clarify 
its meaning, so that we do not go backwards in enforcement of 
minority voting rights.
    So I look forward to the testimony, and thank you, Mr. 
Chairman. And before I yield back, I would yield to the 
gentleman from Michigan.
    Mr. Conyers. Thanks for a great statement, Mr. Scott. The 
question of whether the elimination of influence districts 
could serve as the grounds for a section 5 objection is a very 
important one. It seems to follow from Georgia v. Ashcroft.
    We've seen that very situation in the Texas congressional 
redistricting plan that, according to one of our witnesses, 
eliminated four minority influence districts to create a 
district that elected an Hispanic candidate who did not have 
the support of Latino voters. Thank you.
    Mr. Scott of Virginia. Yield back.
    Mr. Chabot. Okay. The gentleman yields back.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. And today is the seventh 
hearing on the Voting Rights Act. And as I have at all of the 
hearings that I've attended, I want to start by thanking 
Chairman Chabot and, in his absence, thanking Chairman 
Sensenbrenner for convening this hearing and for a commitment 
to building the kind of record that we need going forward to 
sustain whatever extensions we do to the Voting Rights Act.
    In addition to examining the purpose, effect, and 
continuing need for the expiring provisions of the Voting 
Rights Act, the reauthorization process also demands that we 
analyze judicial interpretations of the Act that may have 
undermined the essential purpose and effectiveness of the Act's 
provisions.
    So today we focus on the impact recent Supreme Court 
decisions have had on section 5 and the obligation of covered 
jurisdictions to demonstrate that changes in voting policies 
and practices will not deny or abridge a citizen's right to 
vote on account of their race, color, or language minority 
status.
    In 1976, the Supreme Court decided the Beer v. U.S. case, 
decided that an election change should not be precleared under 
section 5 if ``the ability of the minority groups to elect 
their choices to office is diminished.'' After Beer, the 
Supreme Court and the Department of Justice defined 
``retrogression'' in the context of section 5 as a change in 
voting or election practices that resulted in an adverse effect 
or a backsliding in the opportunities of a minority group to 
elect the candidate of their choice.
    This touchstone, relatively clear ``ability to elect'' 
standard was accepted without modification by Congress in 1982, 
when Congress amended section 2 and extended section 5 for 25 
additional years. In 2003, the Supreme Court deviated from the 
recognized retrogression standard, and replaced it with a more 
amorphous approach in determining whether a redistricting plan 
made minority voters worse off.
    Although there are parts of the Court's decision for which 
there is widespread support, the Court's suggestion that the 
effective exercise of the franchise can be achieved by 
spreading minority voters over a greater and greater number of 
districts to enhance their influence has raised some important 
concerns.
    Nine justices agreed, as do I, that section 5 does not 
prohibit the reduction of super majority minority voting age 
population percentages from that in a benchmark plan. Where the 
majority in Georgia v. Ashcroft strayed, however, losing four 
justices in the process, was in its failure to enunciate an 
articulable standard under which the opportunities to elect are 
preserved.
    To the extent that Georgia v. Ashcroft depreciates the role 
of minority groups' ability to elect plays in the retrogression 
analysis, it invites the potential for an erosion of the 
protections embodied by section 5. To paraphrase one professor, 
Professor Pam Karlin, there is a retrogression of the 
retrogression standard when you do that.
    The ability to elect has always been the cornerstone of 
section 5, and should remain. Of course, the devil is in the 
details. And that's what we've got all these excellent 
witnesses here for today: to give us the details on how we 
ought to be addressing what I think we all agree have been some 
missteps on the part of the Supreme Court in playing out what 
the Congress' intent was. But I think there's general 
agreement--or there seems to have been in prior hearings--on 
that proposition.
    The more important question is: how do we correct them in 
the renewal or extension process, going forward? And we need to 
be very careful about that. And I couldn't think of a more 
elite and distinguished and deserving and qualified panel of 
witnesses than the ones we have today, to tell us how to 
navigate those waters going forward.
    I yield back, and thank the gentleman again for holding the 
hearing.
    Mr. Chabot. I thank the gentleman.
    I'd also like to recognize three additional Members of the 
House who are not actually Members of this Committee, but 
nonetheless are very active and distinguished Members that I 
would like to ask unanimous consent that the three Members be 
able to fully participate in the hearing today, both to make 
opening statements, should they choose to do so, and also 
question the witnesses. And without objection, so ordered.
    And I'd like to first recognize--and all three gentlemen 
happen to be from the State of Georgia. I'd first like to 
recognize Mr. Lewis, who of course is an inspiration to so many 
Members of the House, because he is one person who lived and 
shed blood during these years that we're discussing and marched 
in the front lines of the Civil Rights Movement. And so we have 
much to learn from him. And so I would recognize him for the 
purpose of making an opening statement.
    Mr. Lewis of Georgia. Well, thank you very much, Mr. 
Chairman, for allowing this non-Member of this Committee to be 
here. And thank you for your kind words.
    I'm delighted to see such a wonderful panel; three members 
of this panel being from the State of Georgia, from my 
district. And it's good to see you. You're so well qualified to 
testify and speak on Georgia v. Ashcroft. Good to see Ted Shaw.
    I've said in the past, and I'll say it again today, Mr. 
Chairman, I would like to maybe submit a statement for the 
record.
    Mr. Chabot. Without objection, so ordered.
    Mr. Lewis of Georgia. The Voting Rights Act, and section 5, 
was good in 1965, is good in '05, and I think it's still good 
in years to come. Some of you may notice from Georgia v. 
Ashcroft that so many people have used my statement--there was 
an affidavit, I then testified in the Court--have used it in a 
number of occasions and taken it out of context. I still 
believe we made a lot of progress. We've come a distance. But 
we still have a great distance to go.
    I will be eager to listen to what each one of you has to 
say, because the right to vote and the right to be able to 
fully participate in the election process and to have an 
opportunity to select a candidate of your choice, to have 
influence, I think is precious. It's almost sacred.
    And I want to commend each and every one of you for all the 
hard work that you all have done over the years to bring us to 
where we are. Some of you have been in this field for a long 
time, for years. So I welcome you.
    Thank you, Mr. Chairman. I yield back.
    Mr. Chabot. Thank you very much.
    The gentleman from Georgia, Mr. Scott, is also recognized 
for the purpose of making an opening statement. I would once 
again note that his attendance during the course of these 
hearings has been pretty extraordinary for a non-Member of this 
Committee. So thank you very much for your interest.
    Mr. Scott of Georgia. Thank you very much, Mr. Chairman. 
And again, it's a delight to be here. And I thank you for your 
courtesies, and the entire Committee.
    This is indeed a very extraordinary day. It's so good to 
see all of our home people from Georgia here. Representative 
Tyrone Brooks, we served in the legislature together there, in 
the House and the Senate, for over a quarter of a century 
together; been through many battles, and certainly through the 
reapportionment battles of 1980, 1990, 2000. And as a result of 
all of that, the history books are clear that, without any 
question, Georgia is indeed the poster child for the greatest 
reaffirmation of need for the Voting Rights Act of any State in 
this Nation.
    And to you, Mr. McDonald, it's so good to see you. And your 
reputation certainly precedes you in all that you have done, 
all the sterling legal leadership you've provided in each of 
these cases in Georgia. This Committee is certainly in for a 
treat, and we're proud to have you and Ms. Anne Lewis. You 
represented those plaintiffs for each of the cases, all the way 
stretching back to the early '90's--I think 1991, as well, and 
all of those. And certainly to you, Mr. Shaw; I don't want to 
leave you out. But I'm sure that we're glad to have you.
    This is very important, because Georgia v. Ashcroft, I 
think, really presents to us an excellent opportunity to show 
why we definitely need to have section 5 extended, and all of 
the parts extended.
    This whole issue with the case of Georgia v. Ashcroft shows 
clearly this schizophrenic, dichotomized mindset that this 
Nation has historically had in terms of extending voting 
rights, and then taking them back. It sort of starts out right 
from the foundation of this country, when we had those very 
eloquent words that, ``We hold these truths to be self evident, 
that all men are created equal,'' and ``...endowed by their 
Creator with certain inalienable rights; among these, life, 
liberty, and the pursuit of happiness.'' At the same time, that 
individual that wrote those magnificent words owned slaves; was 
the father of slaves.
    We come on down to the year of 1870, when men and women of 
color sat right here in Congress; were given that right to vote 
and participate. Then it was snatched away. We even had the 
15th amendment to come and to say nothing would abridge that 
right--race, creed, or color, or servitude. And still, it was 
snatched away.
    And not until--largely through the works of John Lewis and 
Martin Luther King and Rosa Parks and all of those--we were 
able to get the 1965 Voting Rights Act--a hundred years, over 
200 years since we were founded. And here we are today, just 40 
years later after the Voting Rights Act.
    Even with the threat of this Act not being renewed, 
presents the height of hypocrisy of our country; especially 
when we have men and women dying on the battle fields of Iraq 
to bring democracy there; and we have these efforts to overturn 
the one basic legislative instrument we have that guarantees 
and enforces our rights here.
    So I'm looking forward to this. It's set very, very 
strongly. And let us hope that we will be able to overturn this 
influence district phenomenon, and make sure we make plain the 
purposeful intent of discrimination, which we need to have made 
today, the strength of the Constitution that stands behind this 
Act; and then how we can practically excise Georgia v. Ashcroft 
out of the law, so that we can get the Voting Rights Act back 
and section 5 back, without this great threat to it inside of 
it.
    I look forward to the discussion. Thank you very much, Mr. 
Chairman.
    Mr. Chabot. Thank you. The gentleman yields back.
    The gentleman from Georgia, Mr. Bishop, is recognized for 5 
minutes.
    Mr. Bishop. Thank you very much, Mr. Chairman. I, too, 
would like to thank you for holding this hearing, and certainly 
for allowing me, as a non-Member, to join this distinguished 
panel.
    I'd like to join my colleagues in welcoming my friends of 
longstanding: my former colleague, Representative Tyrone 
Brooks, who has been a friend of longstanding; Mr. Teddy Shaw, 
with whom I've been affiliated with the NAACP Legal Defense and 
Education Fund for many, many years; Ms. Lewis; and of course, 
Mr. McDonald, who I've had occasion to have a relationship 
with, both personally and professionally, in these 
reapportionment battles that we've been involved in over the 
years.
    I, of course, served in the State senate on the 
Reapportionment Committee, and of course we collaborated a 
great deal, and of course I was involved when I was in the 
State House for 14 years in three or four redistricting battles 
there. And of course, one of them resulted in, of course, my 
being able to come to this body.
    And so I certainly welcome you, and I'm delighted that you 
are here, because all of you are certainly experts in this 
field and have a great deal to bring.
    I am particularly interested in this because four of our 
colleagues--I should say, seven of our colleagues from Georgia, 
on the other side of the aisle, have made it a point that in 
the debate on extension of the Voting Rights Act this year they 
intend to do one of two things: to either repeal section 5, 
which requires extensive oversight; or to have section 5 
extended to all 50 States.
    I feel very strongly against either and both of those 
proposals. I can see very well that being--Reconstruction 
revisited, if the Justice Department no longer has to oversee 
and has to review and preclear, or Federal courts preclear, the 
actions of the State legislatures of the covered jurisdictions.
    Particularly, I'm brought to mind the picture ID bill that 
passed in the last session of the Georgia general assembly, 
which was approved by the Justice Department, only to be, 
fortunately, enjoined in its application by the United States 
Circuit Court of Appeals.
    I'd like to know at some point during your testimony if you 
could touch on the legal principles and the legal peril that 
the constitutionality of the Voting Rights would face in the 
event that the law, section 5, is extended to all 50 States; 
and also, what you portend the effect would be if section 5 
were not extended at all, if it were repealed; what you, based 
on your experience, would believe would be the outcomes.
    Thank you for coming, and I look forward to your sharing 
your advice, your counsel, your wisdom with this Committee as a 
part of the record of these hearings, which will be a part of 
the records of this Congress, so that we can, hopefully, be 
enlightened as we face this very, very important and 
significant issue.
    Mr. Chabot. Thank you. The gentleman yields back.
    I might note that there are votes on the floor, but what 
we're going to do is finish up opening statements here. And 
we've been joined by two additional colleagues: the gentleman 
from Arizona, Mr. Franks, who I understand is not going to make 
an opening statement at this time; and the gentleman from Iowa, 
Mr. King, who will. So the gentleman from Iowa is recognized 
for 5 minutes--or less, whatever he takes up.
    Mr. King. Hopefully, less, Mr. Chairman. I thank you for 
recognizing me, and I thank all the panelists and look forward 
to your testimony subsequent to our vote.
    And as I listen to the opening statements here, a number of 
things come to mind. And one of them is, as I look at some of 
the language here and some of this case law and some of the 
opinions, that I'm a very strong believer in individual rights, 
and I've never believed that there was such a thing as group 
rights in this country; and that we ought to do everything we 
can to protect the sovereign rights of every individual in 
America; and in fact, that the people themselves are sovereign.
    In the end, we're the ones, as the voices of the people, 
that should make the decision on whether in fact we have voting 
districts that represent the voices of Americans, or whether we 
don't.
    And I come from a State that has a unique approach to this, 
in Iowa. And we have had for a long time a redistricting law in 
Iowa that requires that three non-partisan people go behind 
into a room, close the doors, and draw districts in Iowa that 
are compact, contiguous, and balanced in population as 
possible. And if they draw that district and it can be 
challenged by the language, we can then vote that down. If we 
vote it down a second time, then it goes to the courts, and the 
judges then write the district.
    Well, I think what happened in Ohio last night was an 
opinion that--I have come to the conclusion in Iowa that nobody 
really wants the judges to write the districts in America.
    And I'll say another thing is that it's really not possible 
to find three non-partisan people, anywhere in America. So I 
don't know how you end up with a qualification that lets us get 
maybe where we'd like to go with this, because we're all built 
in with inherent biases of one kind or another. And so, you 
know, I listen to this with great interest.
    Another point that I would bring up is that, under the Beer 
decision, no voting procedure changes would be made that would 
lead to retrogression in positioning of racial minorities with 
respect to their effective exercise of the electoral franchise. 
That presumes that there are groups in America who have more 
than their fair share of representation. Should the progression 
of voting rights not end in some point some retrogression, one 
would logically think that there would be a point when 
minorities had more leverage, as well. And would that mean then 
that the Beers [sic] case would still stand? Or where do we get 
this point of balance?
    When do we finally say: America is where we need to go; we 
are assimilated; we're all one people; we love each other; we 
work together; and we don't see each other in the eyes of being 
a member of a group, but instead individual Americans with 
individual sovereignty; and the people the sovereign?
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. Would the gentleman yield for a 
moment, while he still has 30 seconds? The gentleman referred 
to the vote in Ohio last night. I would just note that the plan 
that failed by 70 to 30--70 percent of the people voted against 
it; 30 for it--would have been what the gentleman indicated: 
two retired judges would pick three other people, and they 
would pick the district lines.
    There was a sense of this same thing that the Governor of 
California, Governor Schwarzenegger, failed at passing out in 
California last night, as well. So it was a trend last night, 
at least in two of the two States that it was up in.
    We have a series of three votes, it's my understanding, on 
the floor. So we will go into recess at this time. And I'd ask 
Members to come back as quickly as we can, and we'll begin 
right after the three votes. And if you'll bear with us, we're 
probably looking at a half hour or so before we'll be back. 
We're in recess.
    [Recess, 2:37 p.m.-3:17 p.m.]
    Mr. Chabot. The Committee will come back to order.
    Members will be arriving as they get back from the votes on 
the floor. Without objection, all Members will have 5 
legislative days to submit additional materials for the record.
    And I'd now like to introduce our very distinguished panel 
of witnesses here this afternoon. Our first witness will be Mr. 
Theodore Shaw. Mr. Shaw currently serves as the Director-
Counsel and President of the NAACP Legal Defense and 
Educational Fund. Mr. Shaw joined the NAACP in 1982, directing 
LDF's education docket and litigating school desegregation, 
capital punishment, and other civil rights cases throughout the 
country.
    In 1987, he established LDF's Western Regional Office in 
Los Angeles, and served as the Western Regional Counsel. In 
1990, Mr. Shaw left LDF to join the University of Michigan Law 
School faculty, where he taught constitutional law, civil 
procedure, and civil rights. During that time, Mr. Shaw played 
a key role in establishing the law school's admission policy.
    Mr. Shaw rejoined LDF as Associate Director-Counsel in 
1993. In 2003, Mr. Shaw was the lead counsel in a coalition 
that represented African-American and Latino student 
intervenors in the University of Michigan undergraduate 
affirmative action case, Gratz, et al. v. Bollinger, et al., in 
which the Supreme Court held in favor of diversity as a 
compelling State interest. Mr. Shaw also serves as an adjunct 
professor of law at Columbia Law School. We welcome you here 
this afternoon, Mr. Shaw.
    Our second witness will be Ms. Anne Lewis. Ms. Lewis 
currently serves as a partner at the Georgia law firm 
Strickland Brockington Lewis LLP, where her practice focuses on 
regulatory matters involving public utilities before the 
Georgia Public Utility Commission.
    In addition, Ms. Lewis represents clients in various public 
policy and legislative matters, including redistricting. During 
the 2000 redistricting cycle, Ms. Lewis, together with her 
partner Frank Strickland, represented four intervenors in the 
State of Georgia's section 5 preclearance case, Georgia v. 
Ashcroft.
    Ms. Lewis also represented the plaintiffs in the Fulton 
County School Board redistricting case, Markham v. Fulton 
County School Board; and served as counsel to former Speaker 
Newt Gingrich and Congressman John Lewis, amicus curiae in the 
1990 Georgia redistricting case, Johnson v. Miller.
    Ms. Lewis is a certified mediator, and is a volunteer with 
Hands on Atlanta and a truancy intervention program. And we 
welcome you here this afternoon, Ms. Lewis.
    Our third witness will be Georgia State Representative 
Tyrone Brooks. Congressman Brooks currently represents the 47th 
District in the State of Georgia, as well as serves as the 
President of the Georgia Association of Black Elected 
Officials.
    Mr. Brooks has a long and distinguished career as a civil 
and human rights activist, beginning his career at the Southern 
Christian Leadership Conference, SCLC, where he worked as a 
volunteer and was eventually hired by Dr. Martin Luther King, 
Jr.
    During his 19 years at the SCLC, Representative Brooks held 
several positions, including National Communications Director, 
National Field Director, and Special Assistant to the 
President; and served under three very distinguished 
Presidents, Dr. Martin Luther King, Jr., the late Rev. Ralph 
Abernathy, and Dr. Joseph E. Lowery.
    Representative Brooks has continued his efforts in the 
State legislature, where he advocates for legislation ending 
discrimination, racism, illiteracy, and injustice. 
Representative Brooks was co-author of the ``max black plan,'' 
used to create more majority-Black districts, which resulted in 
the election of 3 African-Americans to Congress and 44 to seats 
in the general assembly.
    Representative Brooks is a member of the Georgia Black 
Legislative Caucus, and is co-founder of the Coalition for the 
People's Agenda. He is also active in many other organizations 
dedicated to equality and justice. We welcome you this 
afternoon, Mr. Brooks.
    And our fourth and final witness will be Mr. Laughlin 
McDonald, current Director of the ACLU Voting Rights Project. 
As Director, Mr. McDonald has played a leading role in 
eradicating discriminatory election practices and protecting 
the progress made by racial minorities in voting since the 
passage of the original Voting Rights Act back in 1965.
    In 1972, Mr. McDonald joined the Southern Regional office 
of the ACLU as Executive Director, and won some of the most 
precedent-setting cases, including those that secured the ``one 
person, one vote'' principle, established the right of women to 
serve on juries, and ended discriminatory at-large elections.
    Prior to his work at the ACLU, Mr. McDonald served on the 
faculty of the University of North Carolina Law School and in 
private practice. We welcome you back again, Mr. McDonald.
    For those of you who may not have testified before the 
Committee, I'll just familiarize you with the 5-minute rule. 
You have 5 minutes to testify. We have a lighting system. There 
are two boxes there in front of you. For 4 minutes, the green 
light will be on; 1 minute, it will be yellow, and let you know 
that it's time to wrap up; but when the red light comes on, 
your time is up. And we'd appreciate your trying to stay within 
that time frame as much as possible.
    I would also encourage my colleagues, who are also limited 
by the 5-minute rule, to try to keep as close to the 5 minutes 
as we can, because we have another hearing on the Voting Rights 
Act that's been scheduled for 4. We'll probably have to push 
that back a little bit, but we have another distinguished panel 
to testify. We don't want to keep them waiting too long. So if 
we can stay within the 5 minutes, that would be much 
appreciated.
    It's also the practice of this Committee to swear in 
witnesses prior to their testimony, so we'd ask you all to 
please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Chabot. Thank you. Each witness has indicated in the 
affirmative.
    We're now ready to hear from the panel. And Mr. Shaw, if 
you're ready, we'll hear you for 5 minutes. And you'll have to 
turn on the mike there. Thank you very much.

TESTIMONY OF THEODORE M. SHAW, PRESIDENT AND DIRECTOR-COUNSEL, 
         NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

    Mr. Shaw. Thank you, Mr. Chairman. Members of the Committee 
and distinguished Representatives, counsel, as President and 
Director-Counsel of the NAACP Legal Defense and Educational 
Fund, I welcome the opportunity to testify before the Committee 
regarding the judicial interpretation of the retrogression 
standard as it relates to the renewal of section 5 of the 
Voting Rights Act.
    The Voting Rights Act is widely regarded as one of the 
greatest achievements in the Civil Rights Movement. It reflects 
Congress' meaningful and lasting embrace of equal protection of 
the law and equal political opportunity.
    The context for the current renewal debate is one in which 
LDF's perspective reveals two truths that shape the current 
debate: First, we must recognize that we've made a great deal 
of progress, a lot of change for the better, since 1965, due in 
large part to the existence of strong, effective civil rights 
laws, such as the Voting Rights Act. Second--and LDF's 
experience bears this out--any accurate description of the 
situation within covered jurisdictions illustrates that in 
significant respects, a great deal remains to be done, if we 
are to achieve the political equality to which the 
Reconstruction constitutional amendments unequivocally commit 
us.
    The ability for minority communities to elect candidates of 
their choice has been at the core of the Voting Rights Act. 
Typically, a section 5 assessment of the ability to elect 
occurs in the context characterized by, one, the national 
preference for single-member electoral districts and, two, the 
continued existence of racially-polarized voting patterns--and 
that's really key; I will underscore that, and come back to 
that, if need be, again and again in the few minutes I have--
and three, the persistent efforts to dilute minority votes by 
depriving their communities of the benefits of fairly drawn 
redistricting plans.
    Against this backdrop, and in the wake of the Supreme 
Court's reconceptualization of section 5 preclearance in 
Georgia v. Ashcroft, I wish to direct the remainder of my 
remarks to explaining several of the reasons why Congress 
should act to restore protection for the ability of minority 
voters to elect candidates of their choice as a touchstone of 
retrogression analysis.
    Let me turn then to judicial development of the 
retrogression standard, Beer v. U.S., and then talk about 
Georgia v. Ashcroft. In Beer v. United States, the Supreme 
Court held that section 5 required the denial of preclearance 
to changes in voting practices and procedures if ``the ability 
of minority groups to elect their choices to office is 
diminished.'' The relatively clear standard established in 
Beer, accepted without modification by Congress when it amended 
section 2 and extended section 5 in 1982, was significantly 
weakened by Georgia v. Ashcroft in 2003.
    According to the Supreme Court's majority opinion, as 
compared to the benchmark 1997 plan, the post-2000 Census 
enactment ``unpacked'' the most heavily concentrated majority-
minority districts in the benchmark plan and created a number 
of new ``influence'' districts.
    The three-judge court found the plan to be retrogressive. 
The Supreme Court reversed, in an opinion by Justice O'Connor 
which reconceptualized the test to allow jurisdictions to 
choose to protect the ability to elect or, in the alternative, 
to pursue an increase in minority influence by dispersing 
voters, even if existing opportunities to elect are sacrificed.
    We believe that there is a need for clarification of the 
retrogression standard. There are several reasons that Congress 
ought to engage in this clarification and restore the emphasis 
on protecting minority voters' ability to elect.
    One is that Georgia v. Ashcroft permits tangible minority 
gains to be sacrificed. Contrary to the purpose of section 5, 
the new retrogression standard allows a jurisdiction to decide 
whether it will protect hard-won gains and opportunities to 
elect. It permits a jurisdiction to choose among different 
theories of representation and introduces a substantial 
uncertainty for minority communities into a statute that was 
specifically intended to block persistent and shifting efforts 
to limit the effectiveness of minority political participation.
    The benefit of minority communities choosing the candidates 
who represent them is clear to those communities, as it was to 
any other community. And the Nation's commitment to 
representative democracy is at issue.
    Two, we believe that Georgia v. Ashcroft invites and 
shields vote dilution. ``Cracking'' and ``unpacking'' could be 
a problem; but clearly, this invites the ``cracking of minority 
districts.'' We believe the standard is difficult to 
administer. We don't know what ``influence districts'' really 
mean. And we also believe that it undermines the section 5 
benchmark analysis.
    My testimony is more full, and addresses this and it's 
submitted in writing. Five minutes doesn't allow me to talk 
about this issue in all the detail. I hope that we can do so in 
some questions and answers.
    At bottom, Mr. Chairman and Members of the Committee, I 
think that we have to remember that section 5 is--it was a 
standard that we could administer, under Beer. And we need to 
restore--not only extend, but restore--the Voting Rights Act 
and section 5 to full strength. I invite questions.
    [The prepared statement of Mr. Shaw follows:]

                 Prepared Statement of Theodore M. Shaw





    Mr. Chabot. Okay. Thank you very much. All the written 
statements will be made part of the record. And if you don't 
get into everything during the question period, we'll probably 
get into those items. You may not have had time. Thank you very 
much for your testimony.
    Ms. Lewis, you're recognized for 5 minutes.

             TESTIMONY OF ANNE W. LEWIS, ATTORNEY, 
                STRICKLAND BROCKINGTON LEWIS LLP

    Ms. Lewis. Thank you, Mr. Chairman and Members of the 
Committee. I appreciate this opportunity to provide testimony 
regarding the important issue of the renewal of section 5 of 
the Voting Rights Act. I believe that it's imperative that that 
section be renewed, and that it is also imperative that in 
renewing that section Congress give great consideration to a 
revision of the Ashcroft test, so that we go back to the former 
standard of judging whether or not there was retrogression.
    My practice is primarily devoted to redistricting, and 
that's my experience with respect to section 5 generally. 
During the 1990's, I represented a group of citizens in a 
redistricting case called Jones v. Miller. And then I did have 
the distinct pleasure of, along with my co-counsel, 
representing Congressman Lewis and Former Speaker Newt 
Gingrich, in the case of Abrams v. Johnson.
    In the 2000 redistricting cycle, I served as counsel for 
four minority citizens, two Democrats and two Republicans, in 
the case of Georgia v. Ashcroft. In that case, the voters we 
represented opposed the congressional plans and the State 
legislative redistricting plans, on the ground that the plans 
were all retrogressive.
    The district court precleared the congressional and state 
house plans, but denied preclearance of the State senate plan. 
As you know, the Supreme Court reversed and remanded and sent 
back the case to the district court, and in the process 
redefined ``retrogression'' and added an additional method by 
which a jurisdiction might prove there was no retrogressive 
effect with respect to minority voting rights.
    While the district court was in the process of attempting 
to apply the Supreme Court's instructions--which, I will 
suggest to you, would be basically impossible to do--we were 
also litigating the case of Larios v. Cox in Georgia, in which 
we represented a group of 29 Georgia voters who contended that 
the State legislative and congressional plans violated the 
constitutional guarantee of one person, one vote.
    Because we were ultimately successful in that case with 
respect to the State and legislative redistricting plans, and 
the senate plan at issue in Ashcroft was one of those plans, 
the Ashcroft district court decided that the case was moot. And 
so ultimately, that district court never applied the standard 
that had been issued by the Supreme Court.
    In my testimony, I have described the evolution of the 
judicial interpretation of section 5 through the years since 
the last renewal of the Voting Rights Act. I want to focus in 
my remaining couple of minutes on the fact that in the Ashcroft 
case, the Court agreed with the State's new theory that a 
jurisdiction could show that, in addition to the traditional 
form of retrogression which asked the question, ``Is the 
minority community still able to elect the candidate of 
choice?'', retrogression, or a lack thereof, could also be 
proven by answering the question, ``Is the minority group's 
opportunity to participate in the political process 
diminished?''
    I'll suggest to you that, both from the perspective of an 
attorney practicing in this area and, more importantly, from 
the perspective of a voting rights issue, this standard is 
impossible to apply.
    First, the Supreme Court asks, in determining whether or 
not a minority group had the opportunity to participate in the 
political process, one might examine factors including the 
likelihood that candidates selected without decisive minority 
support would be willing to take minority groups' interests 
into account; and the question of whether it's better to risk 
having fewer minority representatives in order to achieve 
greater overall representation of a minority group by 
increasing the number of representatives sympathetic to the 
interests of minority voters. I suggest to you that would be 
almost impossible to apply and to prove with respect to section 
5.
    In looking at the issue of influence districts, the Court 
also concluded that a section 5 reviewer might look at ``the 
comparative position of legislative leadership, influence, and 
power for representatives of the benchmark majority-minority 
districts,'' and also whether the representatives elected from 
the very districts created and protected by the Voting Rights 
Act supported the redistricting plan.
    Well, as you all know, there is a measure of support for 
legislative acts that varies; and the motivation varies for 
that support. And so I think, again, that would be a very 
subjective inquiry, and impossible to apply, and detrimental to 
the very purpose of section 5.
    I think that, in addition to the fact that it's difficult 
to apply those, what came from Ashcroft was that a very real 
diminishment of voting rights, minority voting rights, was seen 
in the very next elections. In the 44th Georgia House of 
Representatives District, Billy McKinney, a longtime incumbent, 
lost to a relatively unknown White challenger in the primary. 
Similarly, in a senate district which we had challenged in the 
Ashcroft case, there was the senate majority leader who was 
defeated by a White challenger in a highly polarized election.
    I firmly believe that section 5 remains an important 
component of election law, and should be renewed in some form. 
However, the alternative test announced in Ashcroft should be 
eliminated. From a practical perspective, it's impossible to 
apply; and from a voting rights perspective, it's a disaster. 
Thank you.
    [The prepared statement of Ms. Lewis follows:]
                  Prepared Statement of Anne W. Lewis
    Mr. Chairman and members of the committee, thank you for this 
opportunity to provide testimony regarding the very important issue of 
renewal of certain sections of the Voting Rights Act. While I recognize 
that the question of renewal extends to Section 5, 6 and 8, my focus 
today is on Section 5 and to some extent its interplay with Section 2, 
as my experience with the Voting Rights Act has involved those two 
Sections primarily, in the context of redistricting. In my testimony, I 
would like to cover four areas. First, I will provide a short 
description of the important role the Voting Rights Act has served in 
bringing about increased fairness in the composition of election 
districts at every level of government in Georgia, and hopefully dispel 
a couple of pernicious myths that have developed regarding the Act's 
enforcement. Second, I will address the Supreme Court's decision in 
Ashcroft and why the holding in this case threatens to result in 
districts that are less fair for minority voters. Third, I will discuss 
why a failure to renew Section 5 will result in election districts at 
most levels of government that will not only be less fair for 
minorities, but for most other segments of our electorate is well. 
Fourth and finally, I will touch on the need to consider which 
jurisdictions and what conduct is covered by Section 5.
    By way of background, I am an attorney in Atlanta, Georgia with the 
law firm of Strickland Brockington Lewis LLP. During the 1990s 
redistricting cycle, I was one of the attorneys representing a group of 
citizens in the case called Jones v. Miller. In that case, the citizens 
sought court intervention in the redistricting process when the State 
of Georgia's 1991 redistricting plans were not precleared. Later in 
that decade, I served as one of the attorneys to former speaker Newt 
Gingrich and Congressman John Lewis in the case of Abrams v. Johnson, 
which later became known as Johnson v. Miller. In that case, my co-
counsel and I had the distinct and rather rare privilege of 
representing both Congressman Gingrich and Congressman Lewis.
    In the 2000 redistricting cycle, I served as one of the counsel for 
four minority citizens--two Republicans and two Democrats--in the case 
of Georgia v. Ashcroft, in which the State of Georgia sought Section 5 
preclearance from the District Court for the District of Columbia. The 
voters we represented opposed Georgia's Congressional and state 
legislative redistricting plans on the ground that the plans were 
retrogressive. The District Court precleared the Congressional and 
state House plans but denied preclearance of the state Senateq plan. As 
you know, the case went to the Supreme Court and was reversed and 
remanded. In essence, the Supreme Court added an additional method by 
which a jurisdiction might prove there was no retrogression with 
respect to minority voting rights. Although retrogression had always 
been measured by whether the new redistricting plan so decreased 
minority voting strength in majority-minority districts that the plan 
resulted in a backsliding in minority voting rights, in Ashcroft, the 
Supreme Court determined that retrogression might also be measured by 
whether, despite the decrease in minority voting strength in majority-
minority districts, there were additional ``influence'' or 
``coalitional'' districts formed sufficient to compensate for the 
losses in minority voting strength in majority-minority districts. In 
reversing and remanding, the Supreme Court directed the District Court 
to consider whether the State, although not meeting the traditional 
test of retrogression, had, in fact, met the new test.
    While the District Court was in the process of attempting to apply 
the Supreme Court's instructions--including whether to hold a new 
trial, what new discovery was required, what new evidence would be 
allowed and the like--we were litigating the case of Larios v. Cox in 
Georgia, in which we represented a group of 29 voters who contended 
that the state legislative and Congressional plans violated the 
constitutional guarantee of one person, one vote. We were ultimately 
successful on the state legislative plans, and they were redrawn by the 
federal court; that decision was summarily affirmed by the Supreme 
Court. Subsequently, the District Court in Ashcroft dismissed that 
case, and so it never applied the new Section 5 test of Ashcroft. As I 
will discuss later, it is both a mystery to me as to how that test 
would have been applied and how it would not ultimately result in a 
retrogression in minority voting rights--the very evil that Section 5 
is designed to remedy.
    While Ashcroft muddies the Section 5 waters, I firmly believe that 
Section 5 remains an important component of election law and should be 
renewed in some form. In the two decades since the Voting Rights Act 
was last amended and renewed in 1982, a revolution has occurred in 
American election law that has resulted in representation that more 
accurately reflects the composition of the American electorate than any 
previous time in our history. The Voting Rights Act has been an 
important factor in that progress and remains necessary today.
 a. the role of the voting rights act in bringing about fair districts 
  and the role of the department of justice in administering section 5
    In 1982, when the Voting Rights Act was last amended and renewed, 
America's congressional and legislative districts, as well as those in 
many of its local jurisdictions, were gerrymandered in a fashion that 
denied fair representation to most African-Americans and other ethnic 
minorities; oddly enough, the same gerrymandering tactics denied fair 
representation to a majority of white (non-Hispanic) voters. These 
gerrymanders would have been permanent, absent a case-by-case judicial 
remedy or a broad-scale legislative remedy. In amending the Voting 
Rights Act in 1982, Congress provided that legislative remedy.
    By 1994, little more than a decade later, African-Americans and 
Hispanics in Congress had more than doubled, with almost all of these 
representatives coming from majority-minority districts. Those 
districts were drawn for one reason: because the Voting Rights Act 
required them to be.
    However, the extension and application of the Voting Rights Act has 
not simply made election districts fairer for minority voters. The Act 
has also made the election districts fairer for all voters. For 
instance, the current national congressional map more accurately 
reflects the votes cast for Congress than any congressional map in the 
last four decades. Likewise, the Georgia legislative map more 
accurately reflects the votes cast for the Georgia General Assembly 
than any map in the last three decades. Drawing fair districts for 
minority voters has a complementary effect of making it more difficult 
to gerrymander other voters. When the drawing of majority-minority 
districts is coupled with other neutral districting criteria, such as a 
strict one-person one-vote requirement and geographic compactness, 
gerrymandering becomes much more difficult.
    Despite the great strides that have been made under the Voting 
Rights Act, particularly those that have resulted from the application 
of Section 5, the need for the Section remains, as the political will 
to gerrymander minority communities is still prevalent in most of the 
jurisdictions covered by Section 5, and, perhaps, in some jurisdictions 
that are not currently covered by Section 5 but should be. Perhaps the 
reason for the gerrymandering has changed to some degree, in that 
gerrymandering minority communities may be less the result of racial 
animus than the result of a political effort to help incumbents retain 
their power. However, the effect is the same--a lessening of voting 
strength in minority communities as incumbents try to hold onto power.
    As Judge Kozinski noted in Garza vs. County of Los Angeles, ``the 
record before us strongly suggests that political gerrymandering tends 
to strengthen the grip of incumbents at the expense of emerging 
minority communities. Where, as here, the record shows that ethnic or 
racial communities were split to assure a safe seat for an incumbent, 
there is a strong inference--indeed a presumption--that this was a 
result of intentional discrimination.'' Judge Kozinski drew an analogy 
to housing discrimination to illustrate his point that whether the 
action was motivated by racial animus or not, the intent was still to 
discriminate against minorities. His example: ``Assume you are an Anglo 
homeowner who lives in an all-white neighborhood. Suppose, also, that 
you harbor no ill feelings toward minorities. Suppose further, however, 
that some of your neighbors persuade you that having an integrated 
neighborhood would lower property values and that you stand to lose a 
lot of money on your home. On the basis of that belief, you join a pact 
not to sell your house to minorities. Have you engaged in intentional 
racial and ethnic discrimination? Of course you have. Your personal 
feelings towards minorities don't matter; what matters is that you 
intentionally took actions calculated to keep them out of your 
neighborhood.''
    While the positive results that have come from Section 5 cannot be 
doubted, critics have alleged that the increase in majority-minority 
districts that occurred in the 1990 round of redistricting occurred 
were not the natural result of the application of Section 5 but 
resulted from an improper application of the Section by the Department 
of Justice. Those critics contend that the increase in majority-
minority districts occurred because the Department of Justice (1) 
incorporated Section 2 into the Section 5 analysis and (2) adopted a 
commensurate policy of proportional representation or minority 
maximization. Neither of these allegations is true. During the 1990 
redistricting cycle the Department of Justice issued only one objection 
letter based on the incorporation of Section 2 into the Section 5 
analysis. That objection letter was issued to the Bossier Parish school 
board, and the error was corrected by the Supreme Court in Bossier I.
    Instead, the overwhelming majority of objection letters issued 
during the 1990 redistricting cycle was directed at violations of the 
purpose prong of Section 5 and cited the Garza case. Garza required 
that during the redistricting process, the jurisdiction had been made 
aware that the redistricting map ultimately adopted would discriminate 
against a minority community. Opponents had to take the criteria 
enunciated by the jurisdiction and construct an alternative 
redistricting map which (1) had a lower population deviation than the 
plan's, (2) better met the jurisdiction's stated criteria and (3) 
created an additional majority-minority district(s). Discriminatory 
intent could be shown by eliminating any excuse for not drawing the 
majority-minority district (other than the protection of non-Hispanic 
white incumbents).
    Jurisdictions therefore were faced with a choice: they could 
subordinate the personal political demands of their white incumbents, 
adhere strictly to stated criteria and construct a geographically 
compact majority-minority district or they could abandon their stated 
criteria and draw a geographically tortured configuration of the 
majority-minority district in an effort to ameliorate the negative 
political effects on non-Hispanic white incumbents. Most jurisdictions, 
including Georgia, unfortunately chose the latter.
    As a result, advocates for minority voters, as well as other 
participants in the redistricting process, could then use the stated 
criteria, or, often, the absence of any criteria, to determine if the 
construction of even more majority-minority districts was possible. 
Typically, such was possible, and the plans would not be precleared. In 
trying to remedy the situation, a jurisdiction would draw even more 
majority-minority districts but would still typically draw 
unnecessarily tortured configurations of the majority-minority 
districts in order to minimize the negative political effects on non-
Hispanic white incumbents.
    Once the gerrymandering tool of refusing to draw naturally 
occurring geographically compact majority-minority districts was 
eliminated by the enforcement of the Voting Rights Act, more 
cartographically obvious methods had to be employed to draw more 
majority-minority districts. In his dissent in the first Shaw decision, 
Justice Stevens correctly noted that the bizarre shapes of the 
districts were caused by political gerrymandering and not by racial 
gerrymandering.
    The state House and Senate plans produced by the special master in 
the Georgia one person, one vote case--Larios--illustrate that the 
convoluted and bizarre shapes previously employed in Georgia's 
congressional and legislative redistricting maps were completely 
unnecessary in order to draw majority-minority districts. The special 
master's map did not retrogress, either in the number of majority-
minority districts or the minority voting strength in those districts. 
However, these districts were far more compact than the districts that 
had been used in Georgia since 1992, while still complying with 
traditional redistricting criteria. As a result, the special master's 
map offers the protection of the Voting Rights Act while, at the same 
time, more accurately reflects the political preferences of all of the 
voters than any map of the Georgia General Assembly in the past 30 
years.
     b. the ashcroft decision: what does it mean for the continued 
                         vitality of section 5?
    Although the Supreme Court in Bossier II ultimately disagreed with 
the application of the Garza standard because the Court decided that 
Section 5 purpose prong is different from the ``purpose'' of the 14th 
Amendment, as it is limited to ``retrogressive'' intent, i.e., 
discriminatory intent vs. retrogressive intent. Although after Bossier 
II, it did not appear that our clients prove the required 
``retrogressive purpose'' without proving the requisite effect, clearly 
they could have shown the discriminatory intent described by Judge 
Kozinski in Garza in the 2002 redistricting map for the Georgia General 
Asssembly. Through a combination of a reduction of minority voting 
strength in existing majority-minority districts, multimember 
districts, and bizarrely drawn districts, non-Hispanic white Democrats 
attempted to maintain their control over the Georgia General Assembly 
at the expense of minority voters and Georgia's Republican voters. This 
was the basic motivation that caused the General Assembly to produce 
the redistricting plans that were litigated in Georgia v. Ashcroft.
    Although proving intent alone would not be sufficient, we did not 
suspect that we would have difficulty proving the requisite effect 
under existing case law--until the Supreme Court changed the definition 
of retrogression and the effects test in Ashcroft. As noted previously, 
we represented a bipartisan group of four minority citizens who 
intervened in that case. Our principal argument was that the Voting 
Rights Act was not intended to protect the incumbents of any political 
party or, for that matter, the incumbents of any particular race. 
Instead, the purpose of the Voting Rights Act is to protect the rights 
of voters in minority racial and language communities, who have 
historically been denied the opportunity to elect candidates of their 
choice. By reducing the minority voting strength in existing majority-
minority districts to a level at which the minority community no longer 
constituted majority in those districts or to a level at which the 
minority community was barely a majority, there was clearly an effect 
of backsliding or retrogression in the rights of minority voters to 
elect candidates of their choice. This occurred in two basic ways. 
First, the most immediate and identifiable way: the minority voting 
strength in the districts was so significantly reduced that the 
minority candidate of choice would lose.
    The other is a type of retrogression that is more subtle and more 
dangerous. By judging retrogression primarily from the perspective of 
whether the incumbent in the majority-minority district thinks the 
district is satisfactory, the focus is on the incumbent's desires, 
rather than the rights of the voters. Minority incumbents share many of 
the same institutional and financial benefits of incumbency that non-
minority incumbents do. That fact allows minority incumbents to win 
reelection in districts with lower minority voting strength than would 
be insufficient to elect any other minority candidate of choice once 
the incumbent leaves office. While such districts might be sufficient 
for minority incumbents, they fail to protect minority voters who will 
be left in the same situation that existed prior to 1982 once the 
incumbent leaves.
    Oddly enough, when the four minority voters we represented 
attempted to intervene, the State vigorously objected to their 
participation in the case. The State argued that the Department of 
Justice would adequately protect our clients' interests, and therefore, 
they had no place in the case. We responded that it certainly seemed 
that minority voters would have an interest in the Section 5 
preclearance of redistricting plans and that had the State not taken 
the rare route of litigation to obtain preclearance, we would have had 
the right to file objection letters with the Department of Justice. If 
the State's position were to be adopted, then a Section 5 jurisdiction 
could simply squelch any minority opposition to Section 5 preclearance 
by filing a declaratory judgment action in the District Court for the 
District of Columbia and leave minority voters out in the cold. While 
the District Court struggled somewhat with the issue of intervention, 
the Supreme Court did not. In its appeal, the State again raised the 
question of whether minority voters should be allowed to intervene. The 
Supreme Court devoted one paragraph of its opinion to state 
unequivocally that such intervention was appropriate.
    The rest of the Supreme Court's opinion is much more dramatic, as 
it changed both the definition of retrogression and the effects test. 
After the District Court precleared the House and Congressional plans 
but refused to preclear the Senate plan, the State appealed to the 
Supreme Court. By a five to four margin, the Court agreed with the 
State's new theory that a jurisdiction could show that there had been 
no retrogression in one of two ways. The first is the traditional 
method of maintaining both the number of majority-minority districts as 
well as effective minority voting strength in those districts, with the 
relevant question being, ``Is the minority community still able to 
elect a candidate of choice?''
    The second is a new method whereby the number of majority-minority 
districts is reduced and the minority voting strength in other 
majority-minority districts is also reduced, with the relevant question 
being, ``Is the ``minority group's opportunity to participate in the 
political process'' diminished?'' The Court concluded that there were 
several measuring sticks for answering that question, all of them, in 
my opinion, extremely vague and, in practice, impossible to apply.
    The first measuring stick focuses on whether additional 
``influence'' or ``coalitional'' districts are created in which the 
minority community may or may not be capable of electing a candidate of 
choice but can play a ``role'' in the electoral process. The Court 
concluded: ``Thus, a court must examine whether a new plan adds or 
subtracts ``influence districts''--where minority voters may not be 
able to elect a candidate of choice but can play a substantial, if not 
decisive, role in the electoral process.'' Georgia v. Ashcroft, 539 
U.S. 461, 482 (2003). To determine whether there was such a role, the 
Court offered that one might examine various vague factors, including:

          ``the likelihood that candidates elected without 
        decisive minority support would be willing to take the 
        minority's interests into account;'' and

          whether it ``is better to risk having fewer minority 
        representatives in order to achieve greater overall 
        representation of a minority group by increasing the number of 
        representatives sympathetic to the interests of minority 
        voters.''

Ashcroft, 539 U.S. at 482-83.
    In addition to examining influence districts, the Court also 
concluded that Section 5 reviewer might look at ``the comparative 
position of legislative leadership, influence, and power for 
representatives of the benchmark majority-minority districts'' and 
``whether the representatives elected from the very districts created 
and protected by the Voting Rights Act support the new districting 
plan.'' Ashcroft, 539 U.S. at 483-84.
    In addition to the fact that any of those inquiries are extremely 
subjective and appear to focus on incumbents rather than voters, the 
more distressing fact is that the
    decision of the Ashcroft court had real and immediate retrogressive 
effects. In the 44th Georgia House of Representatives district, Billy 
McKinney, a long-time incumbent African-American legislator and the 
father of one of your colleagues, Congresswoman Cynthia McKinney, saw 
his African-American voting strength in the precleared plan reduced by 
approximately 17 percentage points. In the next Democratic primary, he 
faced a white challenger, a relative unknown, and was defeated.
    Similarly, in a Senate district in Augusta, the minority voting 
strength was reduced to a level at which it was doubtful that minority 
voters still constituted a majority of the actual electorate in the 
district and could re-elect the African-American Senator; we objected 
to the district in the Ashcroft case on those very grounds. The 
Department of Justice did not. Subsequently, the Senator, who was the 
Majority Leader in the Georgia Senate, lost his seat to a white 
challenger in a highly racially polarized election.
    Because the 2002 legislative map was only used for one election and 
all of the African-American incumbents in the weaker minority districts 
ran for reelection, there was no opportunity to see actual 
retrogressive effects due to retirement of minority incumbents as I 
described earlier. However, the immediate loss of minority incumbents 
to white challengers as a direct result of the decision in Ashcroft 
indicates that if the Supreme Court's interpretation of Congressional 
intent with respect to Section 5 is allowed to continue without 
modification, then I believe we will see a steady reduction of African-
American officeholders at all levels of American government as current 
African-American incumbents retire from office.
    With respect to the Congressional Districts, the voters we 
represented objected to the plan; the Department of Justice did not. 
Two highly racially polarized elections conducted in the congressional 
districts--which were constructed in a manner similar to many of the 
districts in the state legislative plans--illustrate the factual 
fallacy of the Ashcroft decision. The 12th Congressional District was 
touted by the State as a district which could be won by an African-
American, despite the fact that it was not a majority-minority 
district. In 2002, the African-American candidate was defeated by a 
white candidate in the general election in a racially polarized 
contest. In 2004, in that same district, an African-American candidate 
was defeated by white candidate in the primary.
    In 2002, Congresswoman Cynthia McKinney saw the minority voting 
strength in her district diminished. She was defeated in one of the 
most highly racially polarized elections in Georgia history, even 
though her opponent in the Democratic primary was also an African-
American.
        c. why fair redistricting requires renewal of section 5
    The goal of fair redistricting, and indeed of fair elections in 
general, should be that the political distribution of the 
representatives is within acceptable margins, approximately similar to 
the political preferences expressed by the voters in the election. 
These representatives can and should be elected from geographically 
compact communities of interest, including minority racial and language 
communities of interest. Minority racial and language communities have 
historically been ignored or worse actively fractured in order to 
prevent these communities from electing candidates of choice. For far 
too long it has been falsely asserted that majority-minority districts 
and geographically compact districts that accurately reflect the 
jurisdiction's various communities of interest are antithetical. The 
redistricting plan of the special master in the Larios case illustrates 
that this is not true. In fact, providing fair representation to 
minority racial and language communities is complementary and a 
critical part of producing a fair redistricting plan.
    The 2002 redistricting maps in Georgia prove what will happen if 
Section 5 of the Voting Rights Act is not renewed and the Ashcroft 
decision not modified. Minority racial and language communities will be 
fractured in order to protect white incumbents. The slices may be small 
at first but it will be a death by a thousand cuts. A few minority 
officeholders will be defeated, even more will retire and not be 
replaced. This loss of officeholders will make it even more difficult 
to prevent further fracturing of minority racial and language 
communities, which will result in an ultimate downward spiral that 
minimizes the number of minority officeholders at all levels of 
American government. To allow this result is particularly unacceptable 
when one realizes that preventing it--as illustrated in the plans of 
the special master in the Larios case--does not have to and should not 
conflict with the other basic precepts of fair redistricting.
           d. what should the scope of section 5 renewal be?
    While I do not pretend to have an answer to the question what the 
scope of renewal should be, I think, as I am sure that you have 
discussed at length, that the two important issues are which 
jurisdictions should be covered and what conduct should be covered. I 
believe that it is clearly the case that since the measuring time of 
November 1, 1964, the jurisdictions that should be covered may have 
changed. One concept is to renew only those that are covered, another 
is to cover all jurisdictions and a third is to reevaluate what 
constitutes a jurisdiction that should be covered. Only covering those 
that are covered now ignores the fact that times have changed. Some 
still probably need to be covered, others probably do not. Covering all 
jurisdictions raises constitutional questions concerning Congress' 
power to intrude so drastically upon states' rights without a 
demonstrated need for the same. Re-evaluating the jurisdictions that 
should be covered is the best and, naturally, the most onerous 
solution.
    An easier question is what should be covered. While no one would 
debate that redistricting decisions should be covered, it seems less 
plausible that a decision to move a polling place in a voting precinct 
from one public building to another or to hold a special election when 
one is required should be the subject of preclearance.
    I would like to thank the committee for its consideration of my 
comments. I will attempt to answer your questions, and I would request, 
given the constraints on time, that I be allowed to revise and extend 
my remarks where appropriate.

    Mr. Chabot. Thank you very much.
    Representative Brooks, you're recognized for 5 minutes.

   TESTIMONY OF THE HONORABLE TYRONE L. BROOKS, SR., MEMBER, 
GEORGIA GENERAL ASSEMBLY, AND PRESIDENT, GEORGIA ASSOCIATION OF 
                    BLACK ELECTED OFFICIALS

    Mr. Brooks. Thank you, Mr. Chairman. And certainly, we want 
to thank Chairman Sensenbrenner for the invitation to appear 
today to offer some advice as to how you should proceed in 
addressing the issue of section 5 and renewal of the Voting 
Rights Act.
    You do have my written testimony, so I will not belabor you 
with going through that. I will point out that in my testimony 
I do mention one of my colleagues, Representative Bob Holmes, 
who preceded me in the House, along with David Scott and 
Sanford Bishop, my colleagues from Georgia.
    I will say to you that my life has been one of working in 
civil rights and voting rights, and the introduction that you 
gave me indicated that. But I want to say to you today that as 
we come back to this great, august body to talk about saving 
the Voting Rights Act in some respect, we have to remember that 
in this country where African-Americans may comprise between 12 
and 15 percent of the U.S. population, we're still less than 2 
percent of the body politic. And in my home State of Georgia, 
where we are 30 percent of the population, we comprise less 
than 6 percent of the body politic, in terms of elected 
officials.
    So that tells you that we need these protections afforded 
to us under section 5. As long as we live in a society where we 
have racially-polarized voting, it is imperative that we have 
the protections of section 5.
    In my State of Georgia, where we've made an awful lot of 
progress, we continue to make progress, without those 
protections, we know that we will have retrogression and 
dilution.
    I'm just happy to know, as we come today as a panel, that 
there is great sentiment among you to consider our testimony. 
But I want to say to you that, as last week, Congressman 
Conyers, as we funeralized and memorialized Rosa Parks for her 
great contributions and touching off the modern-day Civil 
Rights revolution, the greatest tribute we could pay to Rosa 
Parks is to extend the Voting Rights Act. Because she was not 
sitting down just to be on the front of the bus; she was 
sitting down to vote. She had tried to register to vote on 
numerous occasions in Montgomery, and been denied. So when she 
sat down on the front of the bus, it was a message to America, 
``I want to cast a ballot. I want to be a registered voter.''
    So as we come today before you as a panel, hopefully, at 
the end of the day, you will understand the importance of 
extending the Voting Rights Act and section 5. The most 
important law that this Congress has ever adopted, since our 
Nation was founded, since the Emancipation Proclamation, is the 
1965 Voting Rights Act.
    Section 5 is the meat of the act. We need those 
protections. We must have those protections, unless we want 
America to live in a society where we would have a legal 
apartheid in our political system. We can't go back. We must go 
forward.
    So my testimony today will speak to the issue of Ashcroft 
and Georgia. But also, it will speak to the need for us to be 
sensitive to the idea of inclusion in the body politic, by 
allowing for the creation of majority-Black districts. We have 
to have that protection. Influence districts can never be the 
substitute for majority-Black districts, can never be.
    So at the end of the day, we hope and pray that this 
Committee will understand the importance of extension, but also 
the protections afforded to us under section 5. Thank you, Mr. 
Chairman.
    [The prepared statement of Mr. Brooks follows:]
       Prepared Statement of the Honorable Tyrone L. Brooks, Sr.
    I want to thank the committee for giving me an opportunity to 
express my views on the important issues facing the Congress as it 
considers extending the special provisions of the Voting Rights Act 
scheduled to expire in 2007. As a 25 year member of the Georgia 
legislature (House District 63) that passed the redistricting plans 
that were the subject of the Georgia v. Ashcroft litigation, I am 
especially pleased to address and try to clear up some misconceptions 
about the role of the black legislative caucus in the enactment of 
those plans.
    Much progress has indeed been made in recent time in minority 
voting rights and office holding in my state, and in the South, but it 
has been made in large measure because of the existence of Section 5 
and the other provisions of the Voting Rights Act. Had there been no 
federal intervention in the voting and redistricting process, it is 
unlikely that most southern states would have ceased their practices of 
denying and diluting the black vote. The fact that Section 5 has been 
so successful is one of the arguments in favor of its extension, not 
its demise.
    As important, the temptation for manipulation of the law in ways 
that will disadvantage minority voters is as great and irresistible 
today as it was in 1982, when Congress last extended Section 5. Removal 
of the federal oversight that Section 5 provides would doubtlessly 
result in a significant erosion in minority voting rights. That is 
evident, I think, from the fact that Georgia has received a total of 80 
objections under Section 5 since the last extension of the preclearance 
requirement. A list of the state's Section 5 objections is attached.
    And just this year, the state enacted a photo ID requirement for 
voting in person that will without doubt deter or prevent a 
disproportionate number of minorities from voting, as well as the 
elderly and the disabled. It is not only difficult for many people to 
get a photo ID, but it costs $20 and is in essence a fee for voting. 
Fortunately, the federal court recently issued an injunction 
prohibiting use of the photo ID requirement, which it said was in the 
nature of a poll tax.
    Many people have asked me, ``what new strategies and schemes do you 
think the states will come up with to suppress the minority vote?'' My 
state didn't bother to come up with anything new, but reenacted one of 
the most blatant measures adopted after Reconstruction to suppress the 
black vote--the poll tax. I want to add that there was no evidence 
whatever presented to the legislature of the need for a photo ID 
requirement for in-person voting.
    The arguments that the state recently made in the Supreme Court in 
Georgia v. Ashcroft are also very disturbing. They demonstrate a 
continuing disdain for the Voting Rights Act and a willingness to 
disregard the interests of minority voters. The state argued that 
Section 5 as applied by the federal court was unconstitutional. It said 
the retrogression standard of Section 5 should be abolished, that 
majority black districts were no longer needed, and that minorities 
should never be allowed to participate in the preclearance process.
    As a long time member of the Georgia legislature and current chair 
of the Georgia Association of Black Elected Officials, I can 
confidently say that if we abolished the majority black districts for 
the state legislature, we would do away with most of the black 
legislators. The same would be true of black elected officials at the 
county and local levels. The argument that the state made in its 
Ashcroft brief failed to take into account how extensive racial bloc 
voting is, and that when a district is changed from majority black to 
majority white it depresses the level of black political activity. The 
enthusiasm, the spirit, the sense that blacks have a chance are all 
diminished. A formerly majority black district, particularly one 
without a black incumbent, would have a different voting pattern after 
it became majority white. Abolishing majority black districts would 
cause a significant reduction in the number of black office holders. 
The state's advocacy of such a position is, alone, a compelling reason 
for extending Section 5.
    The most notable exception to the pattern of blacks losing in 
majority white districts, and which the state relied upon in its 
Ashcroft brief, have been judicial elections. Judicial elections, 
however, are unique in that they are subject to considerable control by 
the bar and the political leadership of the state. Candidates are 
essentially preselected through appointment by the governor to vacant 
positions upon the recommendation of a judicial nominating committee 
dominated by the bar. The chosen candidate then runs in the ensuing 
election with all the advantages of incumbency. Judicial elections are 
low key, low interest contests in which voters tend to defer to the 
choices that have previously been made. Robert Benham, elected to the 
court of appeals in 1984 and the state supreme court in 1990, and 
Clarence Cooper, elected to the court of appeals in 1990, were 
preselected in this manner.
    Benham received special treatment in other ways. The governor felt 
they could sell Benham in the white community, with the support of the 
bar and the Democratic leadership, because nobody knew he was black. 
The plan was to get out the vote in the black community in the 
traditional way, but to ignore race in the white community. Benham's 
picture could appear only on brochures distributed in the black 
community and there could be no endorsements of Benham by Maynard 
Jackson, Julian Bond, Jesse Jackson, or anybody in the civil rights 
community. The ability of preselected blacks to win low key judicial 
elections does not, however, translate into the ability of blacks to 
elect candidates of their choices in majority white state house and 
senate districts.
    Georgia argued strenuously that its 2002 senate plan could not be 
deemed to dilute minority voting strength because black legislators 
supported the plan. But the support of the plan by black legislators 
should not be confused with their support of the state's arguments in 
the Supreme Court that majority black districts could be abolished, or 
that the retrogression standard should be abandoned, or that minority 
``influence'' could be a substitute for the ability to elect.
    Most of the members of the Legislative Black Caucus voted for the 
senate plan as a way of maintaining Democratic control of the 
legislature and holding onto committee chairs, and because any 
reductions made in their own districts did not compromise their 
reelection or the ability of minority voters to elect candidates of 
their choice. The overriding goals of the Democrats were to protect 
incumbents and increase the number of Democratic seats by not wasting 
the black votes in existing majority black districts. And while black 
caucus members agreed to the population reductions, they would never 
have agreed to the abolition of majority black districts. Black caucus 
member Bob Holmes, who has served in the Georgia house almost as long 
as I have, has said that ``No one would have gone for that. There would 
not have been a black vote for that.''
    Notably, the black civil rights leadership of the state, including 
NAACP, Southern Christian Leadership Conference, RAINBOW/PUSH, 
Concerned Black Clergy, Georgia Association of Black Elected Officials, 
Georgia Coalition of Black Women, and Georgia Coalition for the 
Peoples' Agenda, filed an amicus brief in the Supreme Court urging it 
to affirm the decision of the lower court rejecting the state's senate 
redistricting plan. They asked the Court to reject the state's 
arguments for repeal of the retrogression standard, the abolition of 
majority-minority districts, and excluding minorities from the 
preclearance process.
    Most tellingly, black members of the legislature who had voted for 
the state's plan gave their full support to the filing of the amicus 
brief and said that it was the correct position for the civil rights 
community to take. I made a statement at the time that:

        We fully supported the filing of the amicus brief by the civil 
        rights groups. We voted for the state's plan for political 
        reasons, but we were appalled by the arguments the state made 
        in its brief in Georgia v. Ashcroft. There is no question that 
        abolishing the majority black districts would turn the clock 
        back. The preservation of the majority black districts is 
        critical to minority office holding and minority political 
        participation. As its president, I can speak for the Georgia 
        Association of Black Officials and say that we strongly 
        disagreed with the state's arguments in the Supreme Court.

    I would urge this committee to support legislation restoring the 
protection lost under Section 5 as a result of the Georgia v. Ashcroft 
decision, by making clear that the retrogression standard of Section 5 
protects the ability of minority voters to elect representatives of 
their choice. The ability to influence the election of candidates is 
not an acceptable substitute for the ability to elect. I also want to 
echo the sentiments of my colleagues that Georgia v. Ashcroft provides 
an extremely vague and difficult standard to administer.

                               ATTACHMENT





    Mr. Chabot. Thank you very much, Representative Brooks. And 
before we get to our last witness, you mentioned Rosa Parks and 
the reauthorization of the Voting Rights Act. At the funeral in 
Detroit--where I think just about every Member of this 
Committee was present, at least that's present here now--that 
came up again and again by many of the very distinguished 
speakers at the funeral, how important it was that the Voting 
Rights Act be reauthorized.
    Now, there is some, I would say, misinformation that the 
right to vote is going away after 2 years if this isn't 
reauthorized. There are only sections of this that need to be 
reauthorized. It's not the entire--some of those things are 
permanent, of course; although these things here are very 
important, as well.
    But I just did want to acknowledge that what you're saying, 
we heard time and again at Rosa Parks' funeral last week.
    Mr. McDonald, you're recognized for 5 minutes.

    TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, VOTING RIGHTS 
         PROJECT, AMERICAN CIVIL LIBERTIES UNION, FND.

    Mr. McDonald. Chairman Chabot and Members of the Committee, 
it's indeed a pleasure to appear before you, before so many 
colleagues and friends.
    I agree with what some of the prior--all of the prior panel 
members have said, that the opinion of the majority in Georgia 
v. Ashcroft introduces new and vague and difficult to apply and 
contradictory standards. According to the Court, the ability to 
elect is important, it's integral; but a court must now also 
consider the ability to influence and elect so-called 
``sympathetic representatives.''
    The Court took a standard that was intelligible, easy to 
apply; and it's turned it into something that's subjective, 
abstract, and impressionistic.
    The danger in the Court's opinion is that it will allow 
States to turn Black and other minority voters into second-
class voters who can influence the election of White 
candidates, but who cannot elect their preferred candidates, 
including candidates of their own race. And that's a result, I 
think, that the Voting Rights Act should not allow to exist.
    The inability of Blacks to exercise the franchise 
effectively in so-called ``influence districts'' is apparent, I 
think, from the lack of electoral success of Black candidates 
in majority-White legislative districts in Georgia. As of 2002, 
of the ten Blacks elected to the State senate in Georgia, every 
single one was elected from a majority-Black district. And the 
districts, by the way, had populations of 54 to 66 percent 
Black.
    And of the 37 Blacks elected to the State House, 34 were 
elected from majority-Black districts. And of the three who 
were elected from majority-White districts, two were long-term 
incumbents whose Black percentages were in excess of 45 
percent, and the third was elected from a three-seat district; 
every voter could elect three members to the House.
    I'd also want to comment that the brief which the State of 
Georgia filed in the Supreme Court in Georgia v. Ashcroft I 
think is a present-day example of the willingness of one of the 
States that's covered by section 5 to manipulate the law to 
diminish the protection afforded to racial minorities.
    You should read the brief, because it resurrects the 
language that some White elected officials in the State had 
historically used to denounce the Voting Rights Act. In the 
brief filed in 2003, the State says that section 5 is an 
extraordinary transgression of the normal prerogatives of the 
States; that State legislatures were ``stripped of their 
authority to change electoral laws in any regard until they 
first attained Federal sanction''; the statute was 
``extraordinarily harsh, and intrudes upon the basic principles 
of federalism.'' And the Court even made the argument that 
section 5, as construed by the three-judge court, was 
``unconstitutional.''
    Now, the rhetoric is one thing, but the arguments that the 
State advanced on the merits I think were far more hostile to 
minority voting rights even than its rhetoric was. Because one 
of the State's principal arguments was that the retrogression 
standard of section 5 should be abolished altogether, in favor 
of what it said was a coin toss--50-50 chance of winning or 
losing--standard. Well, by definition, if that were the 
standard that was adopted, you'd do away with half--or more 
than half--of the Black elected officials.
    And the State also made the extraordinary argument, 
directly contrary to case law and to the intent of Congress 
when it extended the Voting Rights Act, that racial 
minorities--the very group for whose protection section 5 was 
enacted--should never be allowed to participate in the 
preclearance process.
    The minority influence theory, moreover, is frequently 
nothing more than a guise for diluting minority voting 
strength. The White members of the Georgia legislature, for 
example, opposed the creation of a majority-Black congressional 
district in 1981, on the grounds that it would diminish 
minority influence. It would cause, it said, White flight and 
the disruption of harmonious working relationships between the 
races.
    Well, the three-judge court said that the so-called 
diminution of minority influence was actually a pretext, and 
that the refusal of the State legislature to create a majority-
Black district in the Atlanta metropolitan area was ``the 
product of purposeful racial discrimination.''
    Well, I would close by saying that because the decision in 
Georgia v. Ashcroft runs counter to the intent of Congress, it 
is crucial that Congress utilize the reauthorization process as 
an opportunity to restore the protection of section 5 and to 
clarify the retrogression standard as articulated in Georgia v. 
Ashcroft. Thank you very much.
    [The prepared statement of Mr. McDonald follows:]
                Prepared Statement of Laughlin McDonald
    Chairman Chabot, Ranking member Nadler and Members of the 
Constitution Subcommittee:
    I am pleased to appear before you today and appreciate the 
opportunity to share my views on the need for Congress to restore the 
protection of Section 5 of the Voting Rights Act, 42 U.S.C. Sec. 1973c, 
eroded by the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003).
    As you know, Section 5 of the Voting Rights Act requires certain 
jurisdictions with a history of racial discrimination in voting to 
obtain preclearance from the U.S. Department of Justice or the U.S. 
District Court in D.C. before they can implement any changes to their 
voting practices or procedures. To obtain preclearance, jurisdictions 
must prove that the proposed voting change is not retrogressive, i.e. 
does not have a discriminatory purpose and will not have the effect of 
denying or abridging a person's right to vote because of their race or 
color or membership in a language minority group.\1\
---------------------------------------------------------------------------
    \1\ 1 42 U.S.C. '1973c.
---------------------------------------------------------------------------
    Prior to the decision in Georgia v. Ashcroft, 539 U.S. 461 (2003), 
the Supreme Court in Beer v. United States, 425 U.S. 130 (1976) held 
that the failure to preserve the ability of minority voters to elect 
candidates of their choice is retrogressive and that such voting 
changes are objectionable under '5 of the Voting Rights Act. This 
standard was also ratified when Congress extended Section 5 in 1982.
    The Georgia v. Ashcroft decision, however, represents a significant 
departure from the retrogression standards applied in Beer and other 
voting rights cases. The Court created a new standard for retrogression 
and allows states to relegate minority voters into second-class voters, 
who can ``influence'' the election of white candidates, but who cannot 
amass the political power necessary to elect a candidate of their 
choice who they believe will represent their interests.
The Decision of the District Court
    Georgia v. Ashcroft was an action instituted by the State of 
Georgia in the District Court for the District of Columbia seeking 
preclearance under Section 5 of its congressional, senate, and house 
redistricting plans based on the 2000 census. The district court 
precleared the congressional and house plans, but objected to three of 
the districts in the senate plan because ``the State has failed to 
demonstrate by a preponderance of the evidence that the reapportionment 
plan . . . will not have a retrogressive effect.'' Georgia v. Ashcroft, 
195 F. Supp. 2d 25, 94 (D.D.C. 2002). Although blacks were a majority 
of the voting age population (VAP) in all three senate districts, the 
district court concluded that the state failed to carry its burden of 
proof that the reductions in BVAP from the benchmark plan would not 
``decrease minority voters' opportunities to elect candidates of 
choice.'' Id. at 89. The standard for retrogression applied by the 
district court was the one articulated by the Court in Beer v. United 
States, 425 U.S. 130, 141 (1976). In Beer, quoting the legislative 
history of the 1975 extension of the Voting Rights Act, the Court held 
that the standard under Section 5 is ``whether the ability of minority 
groups to participate in the political process and to elect their 
choices to office is augmented, diminished, or not affected by the 
change affecting voting.'' 425 U.S. at 141 (emphasis in original). The 
state enacted a remedial senate plan, which was precleared by the 
district court, and appealed the decision on the merits to the Supreme 
Court.
The State's Brief in the Supreme Court
    The brief filed by the state of Georgia in Georgia v. Ashcroft 
provides a dramatic, present day example of the continued willingness 
of one of the states covered by Section 5 to manipulate the laws to 
diminish the protections afforded racial minorities. The state's brief 
resorted to the kind of rhetoric that it had used countless times in 
the past to denounce the Voting Rights Act.
    In April 1965, Carl Sanders, the governor of Georgia, wrote to 
president Lyndon Johnson urging defeat of the pending voting rights 
bill. He argued that states had exclusive power to prescribe voter 
qualifications, and that the abolition of literacy tests in the 
southern states and the federal registrar system was ``an extreme 
measure . . . not even attempted during the vengeful days of the 
Reconstruction Period.'' LBJ Library, LE/HU 2-7, Box 70, p. 2.
    In 1970, in testimony before the U.S. Senateq, Georgia's governor 
Lester Maddox railed against the Voting Rights Act as an ``outrageous 
piece of legislation,'' that was ``illegal, unconstitutional and 
ungodly and un-American and wrong against the good people in this 
country.'' Hearings before the Subcommittee on Constitutional Rights of 
the Committee on the Judiciary, United States Senate, Ninety-first 
Congress, First and Second Sessions, on S. 818, S. 24556, S. 2507, and 
Title IV of S. 2029, Bills to Amend the Voting Rights Act of 1965, July 
9, 10, 11, and 30, 1969, February 18, 19, 24, 25, and 26, 1970, p. 342.
    The state essentially boycotted the 1975 congressional hearings on 
extension of the Voting Rights Act, but Georgia Attorney General Arthur 
Bolton advised Senator John Tunney in a terse letter that ``in a number 
of litigated cases my position with respect to the law in this matter 
is well established, and I do not at this time have anything further to 
add in this matter.'' Extension of the Voting Rights Act, Hearings 
before the Subcommittee on Constitutional Rights of the Committee on 
the Judiciary, United States Senate, Ninety-fourth Congress, First 
Session, on S. 407, S. 903, S. 1297, S. 1409, and S. 1443, April 8, 9, 
10, 22, 29, 30, and May 1, 1975, Arthur Bolton to Sen. John Tunney. In 
one of the cases referred to by Bolton, the state argued that the 
Voting Rights Act was unconstitutional. See Georgia v. United States, 
411 U.S. 526, 530 (1973).
    When Congress considered extension of the Voting Rights Act in 
1981-1982, one of those who testified in opposition was Freeman 
Leverett, a former state assistant attorney general. He proudly 
recalled that he had argued on behalf of Georgia in South Carolina v. 
Katzenbach, 383 U.S. 301 (1966), that the Voting Rights Act was 
unconstitutional and renewed his attack on the act. Disparaging the 
civil rights movement, he said the Voting Rights Act had been passed in 
1965 ``to appease the surging mob in the street,'' and that Section 5 
should be repealed because ``there is no longer any justification for 
it at all.'' Voting Rights Act, Hearings before the Subcommittee on the 
Constitution of the Committee on the Judiciary, United States Senate, 
Ninety-seventh Congress, Second Session, on S. 53, S. 1761, S. 1975, S. 
1992, and H.R. 3112, Bills to Amend the Voting Rights Act of 1965, 
January 27, 28, February 1, 2, 4, 11, 12, 25, and March 1, 1982, pp. 
942, 950.
    In its brief in Georgia v. Ashcroft, the state continued its 
tradition of bashing the Voting Rights Act. It argued that Section 5 
``is an extraordinary transgression of the normal prerogatives of the 
states.'' State legislatures were ``stripped of their authority to 
change electoral laws in any regard until they first obtain federal 
sanction.'' The statute was ``extraordinarily harsh,'' and ``intrudes 
upon basic principles of federalism.'' As construed by the three-judge 
court, the state said, the statute was ``unconstitutional.'' Brief of 
Appellant State of Georgia, pp. 28, 31, 40-1. But the arguments the 
state advanced on the merits were far more hostile to minority voting 
rights even than its anti-Voting Rights Act rhetoric.
    One of the state's principle arguments was that the retrogression 
standard of Section 5 should be abolished in favor of a coin toss, or 
an ``equal opportunity'' to elect, standard based on Section 2 of the 
Voting Rights, 42 U.S.C. Sec. 1973, which it defined as ``a 50-50 
chance of electing a candidate of choice.'' Georgia v. Ashcroft, 195 
F.Supp.2d at 66.\2\ The state also made the extraordinary argument, and 
in contrast to well established law, that minorities, the very group 
for whose protection Section 5 was enacted, should never be allowed to 
participate in the preclearance process.
---------------------------------------------------------------------------
    \2\ Section 2 is a permanent, nationwide prohibition on the use of 
any voting practice ``which results in a denial or abridgment of the 
right to vote on account of race or color [or membership in a language 
minority].''
---------------------------------------------------------------------------
    Had the state's proposed coin toss standard been adopted, it would 
have had a severe negative impact upon minority voting strength. A 50-
50 chance to win is also a 50-50 chance to lose. If the state were 
allowed under Section 5 to adopt a plan providing minority voters with 
only a 50-50 chance of electing candidates of their choice in the 
existing majority black districts, the number of blacks elected to the 
Georgia legislature would by definition be cut essentially in half, or 
reduced even further.
The Decision of the Supreme Court
    The majority opinion of the Supreme Court in Georgia v. Ashcroft is 
the proverbial mixed bag. As an initial matter, the Court rejected two 
of the anti-Voting Rights Act arguments made by the state, i.e., that 
private parties should never be allowed to intervene in preclearance 
actions, and that the retrogression standard of Section 5 should be 
replaced with the ``equal opportunity'' standard of Section 2. 
According to the majority: ``Private parties may intervene in Section5 
actions assuming they meet the requirements of Rule 24, and the 
District Court did not abuse its discretion in granting the motion to 
intervene in this case.'' 539 U.S. at 477. The Court further held that: 
``Instead of showing that the Senate plan is nondilutive under Section 
2, Georgia must prove that its plan is nonretrogressive under Section 
5.'' Id. at 479.
    The Court, however, vacated the decision of the three-judge court 
denying preclearance to the three senate districts because, in its 
view, the district court ``did not engage in the correct retrogression 
analysis because it focused too heavily on the ability of the minority 
group to elect a candidate of its choice in the majority-minority 
districts.'' 539 U.S. at 490. The Court held that while this factor 
``is an important one in the Section 5 retrogression inquiry,'' and 
``remains an integral feature in any Section 5 analysis,'' it ``cannot 
be dispositive or exclusive.'' Id. at 480, 484, 486. The Court held 
that other factors which in its view the three-judge court should have 
considered included: ``whether a new plan adds or subtracts `influence 
districts'--where minority voters may not be able to elect a candidate 
of choice but can play a substantial, if not decisive, role in the 
electoral process;'' and whether a plan achieves ``greater overall 
representation of a minority group by increasing the number of 
representatives sympathetic to the interest of minority voters.'' Id. 
at 482-83.
    The Court held ``that Georgia likely met its burden of showing 
nonretrogression,'' but concluded that: ``We leave it for the District 
Court to determine whether Georgia has indeed met its burden of 
proof.'' 539 U.S. at 487, 489. But before the district court could 
reconsider and decide the case on remand, a local three-judge court 
invalidated the senate plan on one person, one vote grounds, Larios v. 
Cox, 300 F.Supp.2d 1320 (N.D.Ga. 2004), aff'd 124 S. Ct. 2806 (2004), 
and implemented a court ordered plan. Larios v. Cox, 314 F.Supp.2d 1357 
(N.D.Ga. 2004). As a consequence, the preclearance of the three senate 
districts at issue in Georgia v. Ashcroft was rendered moot.
The Dissent
    The dissent in Georgia v. Ashcroft, relying upon Beer, argued that 
Section 5 means ``that changes must not leave minority voters with less 
chance to be effective in electing preferred candidates than they were 
before the change.'' 539 U.S. at 494. The dissenters also argued that 
the majority's ``new understanding'' of Section 5 failed ``to identify 
or measure the degree of influence necessary to avoid the retrogression 
the Court nominally retains as the Section 5 touchstone.'' Id. at 495.
Problems with the Majority Decision
    The opinion of the majority introduced new, vague and difficult to 
apply, and contradictory standards. According to the Court, the ability 
to elect is ``important'' and ``integral,'' but a court must now also 
consider the ability to ``influence'' and elect ``sympathetic'' 
representatives. The Court took a standard that focused on the ability 
to elect candidates of choice, that was understood and applied, and 
turned it into something subjective, abstract, and impressionistic. The 
danger of the Court's opinion is that it may allow states to turn black 
and other minority voters into second class voters, who can 
``influence'' the election of white candidates but who cannot elect 
their preferred candidates, including candidates of their own race. 
That is a result Section5 was enacted to avoid. As the Court held in 
Beer, ``the purpose of Sec. 5 has always been to insure that no voting-
procedure changes would be made that would lead to a retrogression in 
the position of racial minorities with respect to their effective 
exercise of the electoral franchise.'' 425 U.S. at 141.
    The inability of blacks to exercise the franchise effectively in 
so-called influence districts is apparent from the lack of electoral 
success of black candidates in majority white districts. As of 2002, of 
the ten blacks elected to the state senate in Georgia, all were elected 
from majority black districts (54% to 66% black population). Of the 37 
blacks elected to the state house, 34 were elected from majority black 
districts. Of the three who were elected from majority white districts, 
two were incumbents. The third was elected from a three-seat district. 
2003 House of Representatives, Lost & Found Directory.
The Expert Testimony in Georgia v. Ashcroft
    Despite the lack of success of black candidates in majority white 
districts, critics of the extension of Section 5 have argued, 
erroneously, that the evidence in Georgia v. Ashcroft--specifically the 
testimony of the state's expert Dr. David Epstein--showed that black 
voters have an equal opportunity to elect candidates of their choice in 
districts with a black voting age population as low as 44%. To the 
contrary, the three-judge court concluded that Dr. Epstein's analysis 
was ``entirely inadequate'' to assess the impact of the state's plan on 
the ability of minorities to elect candidates of their choice and was 
``all but irrelevant.'' Georgia v. Ashcroft, 195 F.Supp.2d at 81.
    Among the defects found by the court in Dr. Epstein's analysis were 
(a) his erroneous reliance solely on statewide, as opposed to region or 
district specific, data, (b) his failure to acknowledge the range of 
statistical variation in his estimates of the black percent needed to 
provide an equal opportunity to elect, (c) his use of analyses that 
were marred by errors in ``coding'' that affected his conclusion, and 
(d) his use of a method of analysis (probit analysis) that failed to 
account for variations in levels of racial polarization. 195 F.Supp.2d 
at 66, 81, 88.
    Dr. Epstein also failed to take into account the ``chilling'' 
effect upon black political participation, and the ``warming'' effect 
upon white political participation, caused by the transformation of a 
majority black district into a majority white district. Once a district 
is perceived as no longer being majority black, black candidacies and 
black turnout are diminished, or ``chilled,'' while white candidacies 
and white turnout are enhanced, or ``warmed.'' See Colleton County v. 
McConnell, 201 F.Supp.2d 618 (D.S.C. 2002), Supplemental Report of 
Prof. James W. Loewen, p. 2 (``[s]ocial scientists call the political 
impact of believing that one's racial or ethnic group has little hope 
to elect the candidate of its choice the `chilling effect'' '). A 
formerly majority black district, particularly one without a black 
incumbent, would not be expected to ``perform'' in the same way after 
being transformed into a majority white district.
    Dr. Epstein presented a similar ``equal opportunity'' analysis in 
Colleton County v. McConnell, and it was also rejected by the three-
judge court. Citing the pervasive racially polarized voting that 
existed throughout South Carolina, the court concluded that ``in order 
to give minority voters an equal opportunity to elect a minority 
candidate of choice . . . a majority-minority or very near majority-
minority black voting age population in each district remains a minimum 
requirement.'' 201 F.Supp.2d at 643.
    The three-judge court in Georgia v. Ashcroft further found that the 
United States ``produced credible evidence that suggests the existence 
of highly racially polarized voting in the proposed districts.'' Id. at 
88. That evidence included the analysis of Dr. Richard Engstrom which, 
unlike the analysis of Dr. Epstein, ``clearly described racially 
polarized voting patterns'' in the three senate districts in question. 
195 F.Supp.2d. at 69. The Supreme Court did not disturb these findings 
of the lower court on appeal.
Minority Influence As a Pretext for Vote Dilution
    Minority influence theory, moreover, is frequently nothing more 
than a guise for diluting minority voting strength. White members of 
the Georgia legislature, for example, opposed the creation of a 
majority black congressional district in 1981 on the grounds that black 
political influence would be diminished by ``resegregation,'' ``white 
flight,'' and the disruption of the ``harmonious working relationship 
between the races.'' Busbee v. Smith, 549 F. Supp. 494, 507 (D.D.C. 
1982). The three-judge court, in denying Section 5 preclearance of the 
state's congressional plan, found that these reasons were pretextual 
and that the legislature's insistence on fragmenting the minority 
population in the Atlanta metropolitan area was ``the product of 
purposeful racial discrimination.'' Id. at 517.
    Julian Bond, a state senator at that time, introduced a bill at the 
beginning of the legislative session creating a fifth district that was 
69% black. The Bond plan had the support of two white members of the 
senate, Thomas Allgood, the Democratic majority leader from Augusta, 
and Republican Paul Coverdell. Busbee v. Smith, Deposition of Thomas 
Allgood, p. 15-6. In large measure as a result of their endorsement, 
the final plan adopted by the senate contained a 69% black fifth 
district.
    The house, however, rejected the senate plan. The speaker of the 
house, Tom Murphy, was opposed as a matter of principle to creating a 
majority black congressional district. ``I was concerned,'' he said, 
``that . . . we were gerrymandering a district to create a black 
district where a black would certainly be elected.'' Busbee v. Smith, 
549 F. Supp. at 520. According to the District of Columbia court, 
Murphy ``refused to appoint black persons to the conference committee 
[to resolve the dispute between the house and senate] solely because 
they might support a plan which would allow black voters, in one 
district, an opportunity to elect a candidate of their choice.'' Id. at 
510, 520. Joe Mack Wilson, the chair of the house reapportionment 
committee, and the person who dominated the redistricting process in 
the lower chamber, was of a similar mind and advised his colleagues on 
numerous occasions that ``I don't want to draw nigger districts.'' Id. 
at 501.
    After the defeat of the Bond plan in the house, the fragile 
coalition in the senate in support of the plan broke down. Several 
senators approached Allgood and said, ``I don't want to have to go home 
and explain why I was the leader in getting a black elected to the 
United States Congress.'' Allgood acknowledged that it would put a 
senator in a ``controversial position in many areas of [Georgia]'' to 
be perceived as having supported a black congressional district. He 
finally told his colleagues to vote ``the way they wanted to, without 
any obligations to me or to my position,'' and ``I knew at that point 
the House plan would pass.'' Busbee v. Smith, Deposition of Thomas 
Allgood, pp. 42-5.
    Based upon the racial statements of members of the legislature, as 
well as the absence of a legitimate, nonracial reason for adoption of 
the plan, the conscious minimizing of black voting strength, and 
historical discrimination, the District of Columbia court concluded 
that the state's submission had a discriminatory purpose and violated 
Section 5. The court also held that the legislature had applied 
different standards depending on whether a community was black or 
white. Noting the inconsistent treatment of the predominantly white 
North Georgia mountain counties and metropolitan Atlanta, the court 
found that ``the divergent utilization of the `community of interest' 
standard is indicative of racially discriminatory intent.'' 549 F. 
Supp. at 517.
    As for Joe Mack Wilson, the court made an express finding that 
``Representative Joe Mack Wilson is a racist.'' 549 F. Supp. at 500. 
The Supreme Court affirmed the decision on appeal. Busbee v. Smith, 549 
U.S. 1166 (1983).
    Forced yet again by the Voting Rights Act to construct a racially 
fair plan, the general assembly in a special session enacted an 
apportionment for the fifth district with a black population exceeding 
65%. The plan was approved by the court. John Lewis, one of the leaders 
of the Civil Rights Movement, was elected from the fifth district in 
1986 and has served in Congress ever since.
The Shaw/Miller Decisions
    The fallacy of the notion that influence can be a substitute for 
the ability to elect is apparent from the Shaw /Miller cases, which 
were brought by whites who were redistricted into majority black 
districts. Rather than relishing the fact that they could ``play a 
substantial, if not decisive, role in the electoral process,'' and 
perhaps could achieve ``greater overall representation . . . by 
increasing the number of representatives sympathetic to the[ir] 
interest,'' they argued that placing them in white ``influence,'' i.e., 
majority black, districts was unconstitutional, and the Supreme Court 
agreed. See, e.g., Miller v. Johnson, 515 U.S. 900, 919-20 (1995). In 
addition, if ``influence'' were all that it is said to be, whites would 
be clamoring to be a minority in as many districts as possible. Most 
white voters would reject such a notion.
Clarifying Georgia v. Ashcroft
    Because the decision in Georgia v. Ashcroft runs counter to the 
intent of the Voting Rights Act, it is important that members of 
Congress utilize the reauthorization process as an opportunity to 
restore the protection of Section 5 and clarify the retrogression 
standards as articulated in Georgia v. Ashcroft. Any efforts to address 
this issue should provide that any diminution of the ability of a 
minority group to elect a candidate of its choice would constitute 
retrogression under Section 5.
    Thank you very much.

    Mr. Chabot. Thank you very much. I would like to thank the 
entire panel for staying within the 5-minute rule so well. So 
thank you very much for that.
    I now recognize myself for 5 minutes. And I'm going to, 
again, try to encourage Members to keep within the 5 minutes. 
And I will apply that to myself, as well, because we do have 
another hearing after this.
    I'll address this to all the panel members, and we can just 
go down the line here. And you all touched upon this, 
obviously, during your testimony; but would you tell us again 
why Congress should be so concerned about the 2003 Supreme 
Court case of Georgia v. Ashcroft, and how it has impacted 
minority voters and their ability to elect candidates of their 
choice? Mr. Shaw, we'll start with you, if we can.
    Mr. Shaw. Thank you, Mr. Chairman. The Georgia v. Ashcroft 
decision is a substantial weakening of section 5's standard of 
review in the preclearance process. What it does is move away 
from the goal of full participation, of pursuing full 
participation in the political process for racial minority 
groups. What it does is substitute ``influence,'' which is ill 
defined, vaguely defined, for the ability to represent--or 
rather, to elect representatives of choice.
    That's not a close call, in our view at the Legal Defense 
Fund. And it invites dilution. It invites the attempts to 
spread minority voters out under the guise of saying that they 
can have ``influence.'' But in the scenario where there is 
racially-polarized voting--and that's the touchstone here, 
that's a key--it means that they will not be able to elect 
representatives of their choice consistently. And that is a 
step backwards.
    That's what Georgia v. Ashcroft did. That's what it 
threatens. And we believe that if we're going to see a 
restoration of the Voting Rights Act's full strength, and of 
section 5's full strength, we have to undo Georgia v. Ashcroft.
    Mr. Chabot. Okay. Thank you very much. Ms. Lewis, is there 
anything you would like to add to that, or expound upon?
    Ms. Lewis. Well, I agree with Mr. Shaw. I think, also, that 
what we saw in Georgia v. Ashcroft --I think Mr. McDonald 
alluded to it--was that the ability to elect a candidate of 
choice was reduced to a 50-50 chance. Except that really it was 
reduced to a 44-56 chance, because the State's expert testified 
that at 44 percent Black voting-age population, it was an equal 
opportunity to elect a candidate of choice.
    And so I think that in Georgia v. Ashcroft, we don't have a 
refutation of that by the Supreme Court. And in fact, when the 
Supreme Court reversed and remanded to the district court, the 
Supreme Court ordered the district court essentially to take up 
the case and look at it. But if you read the opinion, I think 
it's pretty clear what the district court was supposed to do. 
It was supposed to preclear that plan.
    And I think that in the context of section 5, that Ashcroft 
is definitely a dangerous decision. And I think that one of the 
perhaps unnoticed portions of Georgia v. Ashcroft, that Mr. 
McDonald also alluded to, is there was a concerted effort to 
keep out minority voice in the process. Our clients--four 
minority citizens; two Republicans, two Democrats--wanted to 
participate in the Ashcroft case; as they would have been able 
to do had the case been administratively precleared. But the 
State fought us at least ten times on that issue.
    So I think that I agree with Mr. Shaw. And I also think 
that you see a tremendous reduction in minority voting.
    Mr. Chabot. Thank you. Representative Brooks, anything 
you'd like to add to that?
    Mr. Brooks. Well, Mr. Chairman, I do concur with my 
colleagues. You know, from 1965 through every renewal or 
reauthorization, drawing majority-Black districts was our goal, 
and having a majority-Black district was the standard.
    When Ashcroft became the law, then obviously we move away 
from that standard. So that influence districts, less-than-
majority-Black districts, could be drawn. That will reduce our 
numbers in the body politic. We will see a reduction not only 
in Georgia, but across America, in covered States, if we allow 
this to stand.
    That's why it's very, very important for Congress to say, 
``We're going to maintain the full enforcement of section 5 as 
we go forward with reauthorization.''
    Mr. Chabot. Thank you. I've got 27 seconds left, Mr. 
McDonald.
    Mr. McDonald. I would just say that the impact of Georgia 
v. Ashcroft has not been great, for the reason that most of the 
redistricting after 2000 has already taken place. But how to 
treat Georgia v. Ashcroft is left up to the individual covered 
jurisdictions. And some could continue to draw districts that 
provide an equal opportunity to elect, but the real danger is 
that they will not; that they will draw so-called ``influence 
districts,'' which will minimize the ability of minorities to 
elect candidates of choice. And that's the very real danger.
    Mr. Chabot. Thank you very much. And my time has expired.
    The distinguished Ranking Member of the full Committee, Mr. 
Conyers, is recognized for 5 minutes.
    Mr. Conyers. Thank you. I'm so happy to see everybody here. 
What we're considering is whether influence districts, which 
some consider as a dilution process, and opportunity districts, 
which is a concentration of African-American voters, probably 
60 percent or more, should both be allowed.
    And so my question to you, Mr. McDonald, is should we allow 
both of them to be allowed in moving forward with this new 
legislation that will be coming out from the 2005 hearings on 
the Voting Rights Act?
    Mr. McDonald. Representative Conyers, I think that there 
really are three kinds of districts that people talk about. One 
is the district that provides minorities an equal chance to 
elect representatives of their choice. And the second is a so-
called ``coalition district,'' in which minorities are not a 
majority of the population in the district, but they 
nonetheless retain the ability to coalesce, or to vote as a 
block, either with another minority group or with White 
crossover voters, to elect a candidate of their choice.
    And I think if you destroy either one of those kinds of 
districts, that ought to violate the retrogression standard of 
section 5.
    Then people also talk about so-called ``influence 
districts.'' But I must say, I think that is a somewhat 
amorphous and not a very meaningful term. For example, there 
was a political scientist, a woman named Lisa Handley, who did 
a study several years ago to try to determine the influence 
that a given percent of minority voters would have in a 
district. And I think everybody assumes that the relationship 
is a linear one: that the more minorities you have in a 
district, the more responsive and sympathetic the elected 
officials will be to the concerns of the minority.
    But what she discovered was that there actually was a 
curvilinear relationship. Where there were very few minorities 
in the district, the elected officials were relatively 
responsive; because the minorities were no threat. But as the 
minority population increased, there was a perceived threat 
from the minority and the elected officials were actually less 
sympathetic; until you reached a point where the minority group 
had an ability to elect candidates of choice, and then you saw 
that there was responsiveness. So I think that influence really 
is not this linear pattern.
    Mr. Conyers. Mr. Shaw, do you think we should be 
considering how we tweak or modify Georgia v. Ashcroft? And do 
you agree with the assessment of Mr. McDonald?
    Mr. Shaw. I think that, to the extent that Georgia v. 
Ashcroft has substituted, or opened the door to substituting, 
an influence district standard for the opportunity to elect 
representatives of choice, that Congress ought to restore the 
Beer standard of retrogression. And we should not be stepping 
away from the opportunity to elect representatives of choice.
    I think it's a simple question. If you ask any voter does 
that voter want the ability to be able to influence who may be 
sitting at the table when legislation is made, as opposed to 
the ability to actually have a voice in choosing who's going to 
be at the table, I think the latter is a clear choice. They 
want an opportunity to elect representatives that they believe 
will represent their interests.
    Mr. Conyers. Well, gentlemen, remember now, the former 
majority leader in Texas in the Texas congressional plan relied 
on the majority districts. They said, ``We're packing this in. 
This is good for you.'' Well, we ended up realizing it was bad 
for us. Right, Mr. McDonald?
    Mr. McDonald. I'm certainly not in favor of packing, 
Representative Conyers. That's a traditional form of diluting 
the minority vote.
    Mr. Conyers. Is it, Mr. Shaw?
    Mr. Shaw. Well, clearly, packing and cracking can be 
problematic. It's a very factually intensive analysis that has 
to be done in each instance. So you can see attempts to 
discriminate by packing and over-packing majority-minority 
districts; but you can also see an attempt to dilute voting 
strength.
    I think all of us who do voting rights litigation know that 
there are two forms of discrimination that may be in play here. 
And I'm also not naive. There is a partisan aspect of what the 
Committee Members may be considering.
    We at the Legal Defense Fund, a 501(c)(3) organization, we 
have to think about the Voting Rights Act, which is focused on 
voters and on protecting minority voters. And that's a little 
bit of a different focus; although I understand where those two 
things sometimes meet. But our interest is in preserving the 
Voting Rights Act and section 5 as a strong protection against 
discrimination, whether it's packing or cracking. And what 
Georgia v. Ashcroft does is open a door to cracking, dilution.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Iowa, Mr. King, is recognized for 5 
minutes.
    Mr. King. Thank you, Mr. Chairman. And you know, as I 
listen to this testimony, it's many days of this by this point, 
and I appreciate the passion that comes to the table. I had an 
interesting conversation with Mr. Watt on the way over to vote, 
and I would reflect that we see this from two different 
viewpoints.
    And one of them is all the things we can do from an 
affirmative standpoint. Some believe that that helps the 
assimilation process and diminishes the resistance, the racism 
that has been there in the past. And at some point, we need to 
get to that situation where we can say, ``We've arrived.''
    How do we define--can you define for me, Mr. Shaw, your 
vision for what the, I'll say, the optimum circumstances might 
be where we could sit here one day, you and I, look at each 
other, and say, ``We don't need the Voting Rights Act any more; 
America is now assimilated and we are all one people''? Would 
you have a definition for that?
    Mr. Shaw. Congressman King, I appreciate the question, and 
understand the sincerity of the question. I answer the question 
this way. When we no longer have, or face, the phenomenon of 
racially-polarized voting, in which consistently minority 
candidates--or rather, the candidates of choice of the minority 
community will lose in a majority-White district, then I think 
we can lay down parts, if not more than parts, of the Voting 
Rights Act.
    Believe me, Mr. Congressman, nobody would like to get to 
the point where we no longer have the need for these 
protections more than those who are protected by these 
statutes. And it's nice to wish that we could get there, and 
want to get there; but we're clearly not there now.
    Our testimony and my testimony includes a footnote which 
cites instances of section 5 review and the necessity of 
section 5 review for decades now, right on up to the present. 
So we still need the act.
    Mr. King. Mr. Shaw, I received some good news in my e-mail. 
Actually, it was at 11:07 last night, after the polls closed 
across this country, at least closed in Iowa. And I'll just 
read it to you directly. ``I wanted to let you know that I 
received a call this evening from the Dallas County auditor, 
and Isaiah McGee was the top vote-getter in Waukee City Council 
race. There were three open seats, so the top three vote-
getters out of five candidates were elected. Voters could vote 
for up to three candidates. Out of 1,365 voters that voted in 
the election, Isaiah pulled 1,015 votes.'' And I would submit 
he may have been the only African-American that voted in that 
election.
    So I mean, that doesn't prove anything across this Nation 
from an empirical standpoint, but I want to tell you that I 
believe that there are a lot of very successful islands here. 
And there are other things involved. We focus on race in this 
discussion, but I also know that partisan politics are another 
big part of this.
    And I direct my question to Representative Brooks on that. 
You've seen the polarization because of party. And we know 
polls say that 90 percent of African-Americans vote for the 
Democrat candidate, roughly speaking, across this country. It 
seems to me that you have to factor in the partisan politics in 
any analysis of any discrimination or any difficulty of getting 
representation in the body politic. Representative Brooks?
    Mr. Brooks. Well, to some extent, you do. The reality of 
competition between the parties is a reality that we will face 
for many, many years in this republic that we live in, as long 
as we have democratic elections.
    But riding on the plane up this morning, I received a call 
from the Mayor of Millersville, Georgia, the Honorable Floyd 
Griffin, who is a four-star general and who came out of 
Vietnam; worked with Colin Powell here at the Pentagon; went 
back home; became mayor; served in the State senate two terms. 
He said, ``I lost.'' And he said, ``The reason I lost is 
because I couldn't get enough White crossover votes to be 
reelected.''
    Also, we discovered that over in Cuthbert, Georgia, Willy 
Martin, the Mayor of Cuthbert, lost. Over in Richland, Georgia, 
Olin Falk lost, who worked for former Senator Sam Nunn. And 
they all say, ``We couldn't get enough crossover votes from the 
White community.'' So racially-polarized voting is a reality. 
Those are municipal, non-partisan races; not Democrat-
Republican, but non-partisan----
    Mr. King. But don't we know, Representative Brooks, that 
we've got a pretty good idea of the political philosophy of 
those candidates? And often there's a partisan undercurrent to 
that election?
    Mr. Brooks. Probably so.
    Mr. King. And could you speak, though, to the partisan 
races? Say, for example, if you were a Black candidate running 
in a Republican race, how difficult would it be to get the 
Black crossover to come from the Democrat Party to come vote 
for you as a Republican?
    Mr. Brooks. Well, if I----
    Mr. Chabot. The gentleman's time has expired. But the 
gentleman can answer the question.
    Mr. Brooks. If I could get the Republican Party to return 
to the philosophy of Lincoln and Eisenhower, maybe we'd have a 
better chance.
    But let me tell you, Andrew Young, one of the most popular 
African-Americans in America, known around the world, who lives 
in Georgia, lives in my neighborhood, wanted to become Governor 
of Georgia. In 1990, he ran, and lost. And he said, ``The only 
reason I lost is because I couldn't get enough White crossover 
votes.'' Everybody loves Andrew Young. You know, he wanted to 
become a U.S. Senator last year. He decided, after testing the 
waters, that he couldn't get enough crossover votes.
    So the reality of racially-polarized voting is real. And 
that's why it's so imperative that you understand--even though 
you're from Iowa; you're not a covered State--we have to have 
the full protection of section 5, in order to create 
opportunities to elect candidates of choice; be they Republican 
or Democrat, Black or White.
    Mr. King. Mr. Chairman, I should ask for an opportunity for 
rebuttal, but I'll just yield back. Thank you.
    Mr. Chabot. All right. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott of Virginia. Thank you, Mr. Chairman. 
Representative Brooks, one of the compelling reasons to extend 
section 5 is that it eliminates the advantage people might have 
by implementing--by passing an illegal plan and then 
benefitting from it until such time as it can get thrown out. 
And one of the real problems is that, even if you get it thrown 
out, the person who benefitted from the illegal plan gets to 
run in the legal plan, but as an incumbent.
    As a veteran legislator, can you say whether or not an 
incumbent generally has an advantage in an election?
    Mr. Brooks. Absolutely. Incumbency is a powerful weapon to 
have. When you're running for reelection, it allows you to 
compete and raise funds at a higher level than those who are 
challenging you. Incumbency carries name recognition, 
seniority. So, it certainly does; no doubt about it.
    Mr. Scott of Virginia. Thank you. Now, when you talk about 
the ability to elect a minority candidate, is there any bright-
line number that applies all over the country, or even all over 
Georgia? Or do you have to look at each district individually 
to determine the voting patterns in that district, to determine 
whether or not a minority candidate would reasonably have an 
ability--a minority community would have a reasonable ability 
to elect a candidate of its choice?
    Mr. Brooks. Well, Congressman Scott, I think that when you 
look at Georgia, since we're talking about Ashcroft, you look 
at the history of Georgia, which has had some of the most 
regressive laws over the years: poll taxes, literacy tests, the 
county unit system, at-large voting, resistance to change. My 
home State; born there. You have to look at the fact that 
racially-polarized voting is probably more severe in the State 
of Georgia than any State in the Union.
    Mr. Scott of Virginia. Yes, but I mean, looking at the 
district, do you have to look at the individual district, or is 
it something that can apply over the State?
    Mr. Brooks. You have to look at demographic makeup. You 
have to look at racial makeup. You have to look at who's 
running, who has the ability to compete. You have to look at a 
lot of factors.
    Mr. Scott of Virginia. And you would have to apply those 
factors to the specific district?
    Mr. Brooks. I think you would. But in general, you have to 
have a standard. And till 1965, through every reauthorization, 
we basically had a standard. Majority-Black district was the 
standard.
    Mr. Scott of Virginia. Well, in some areas, a simple 
majority would be enough for the minority community to elect a 
candidate of its choice. In other districts, you would need 
more than just 51 percent; is that right?
    Mr. Brooks. You would need--you would look at the voting--
--
    Mr. Scott of Virginia. In that district?
    Mr. Brooks. Yes. You would look at voter registration. You 
would look at Black voting strength----
    Mr. Scott of Virginia. But I'm talking--in that district.
    Mr. Brooks. In that district.
    Mr. Scott of Virginia. Okay. Now, in your testimony, you 
quote Representative Holmes, who said that the Black Caucus 
members would not have supported the district if it had 
actually abolished majority-Black districts; is that right?
    Mr. Brooks. That's correct.
    Mr. Scott of Virginia. Does anybody on the panel agree that 
we ought to allow--however you consider the influence; a 
coalition, anything--whether or not you ought to eliminate 
existing minority-majority districts?
    Mr. Brooks. I do not.
    Mr. Scott of Virginia. Anybody?
    [No response.]
    Mr. Scott of Virginia. Okay. Now, Mr. Shaw, you indicated 
in your testimony a difference between influence and coalition 
districts.
    Mr. Shaw. Well, I'm not--yes, it's in my testimony, the 
written testimony.
    Mr. Scott of Virginia. In your written testimony.
    Mr. Shaw. Yes. Yes.
    Mr. Scott of Virginia. Can the coalition--influence is hard 
to pin down.
    Mr. Shaw. Yes.
    Mr. Scott of Virginia. Can you mechanically determine 
whether or not--with some degree of accuracy, whether or not a 
district is in fact a coalition district, by voting pattern? Is 
that something that is a workable standard?
    Mr. Shaw. Well, I think, Congressman, that, again, it's a 
factually intensive question. And we have to look at the 
district, the degree of polarization in elections in that 
district.
    Mr. Scott of Virginia. But it's a standard you can work 
with. Now, you're not going to trade a majority-Black district 
or an opportunity--where you have a real opportunity for a 
coalition district. We've agreed on that. In the abstract, if 
all you've got in the area is a possibility for a coalition 
district, and you have a coalition district, should that 
district be able to be protected under the Voting Rights Act? 
Can you crack a coalition district and create two districts 
where you go from coalition to nothing?
    Mr. Shaw. It's a hypothetical question that I can't answer 
with any specificity. I think that the answer to the question 
of whether I would trade a majority-Black district for a 
coalition district is----
    Mr. Scott of Virginia. We know the answer to that is 
``No.''
    Mr. Shaw. Well, I think, Congressman, the question is 
whether you get an opportunity to elect representatives of your 
choice.
    Mr. Scott of Virginia. Right. Right. That's fine. Now, if 
the choice is----
    Mr. Chabot. The gentleman's time has expired. Would you 
like an additional minute?
    Mr. Scott of Virginia. Yes, please.
    Mr. Chabot. The gentleman is recognized for an additional 
minute.
    Mr. Scott of Virginia. If the choice is coalition district 
or no coalition district--you're in an area where you can't do 
a majority-Black district, but you can put together a coalition 
district where you can routinely elect a candidate of choice, 
but you've got to form coalitions to do it--should that 
district be protected under the Voting Rights Act?
    Mr. Shaw. I believe it should be.
    Mr. Scott of Virginia. Okay. And if you have the 
opportunity to create a majority-minority district where you 
have a reasonable opportunity to elect a candidate of your 
choice--in the Georgia case, several of the legislators agreed 
to have their percentage reduced a little bit to create nearby 
coalition districts. Should that be legal? Maintaining the 
opportunity district.
    Mr. Shaw. Yes.
    Mr. Scott of Virginia. You should be able to consider 
whether or not they are coalition districts?
    Mr. Shaw. I believe that should be legal.
    Mr. Scott of Virginia. Okay. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentleman from Florida, Mr. Feeney, is recognized for 5 
minutes.
    Mr. Feeney. Well, thank you. And I thank our panelists.
    I want to tell you that I love Justice O'Connor. I had a 
nice lunch with her where the members of the Supreme Court eat 
lunch. And she will probably be retired by the time we deal 
with the next set of Voting Rights Act cases; at least in the 
redistricting cycle.
    Much as I love her, I have to tell you I'm amazed at the 
hair-splitting she can do in some of her written opinions. It 
brings the nano-science of hair-splitting to new levels. And I 
think that the Georgia v. Ashcroft case is an example of that, 
in which she really threw out the old retrogression standards 
as we knew them.
    She did things like say that retrogression inquiries should 
include the opportunity to participate in the political 
process. Well, that's only partially true. It's section 2 that 
deals with the opportunity to register and to actually vote. 
Section 5 guarantees a meaningful vote, where the opportunity 
to elect a candidate of your choice matters.
    And she basically says that we can substitute now a certain 
number of coalition or influence districts, or even other 
considerations, in her opinion, that are added. How many people 
do you have, for example, that are minorities in leadership 
positions or in chairmanship positions?
    And the point of that is that under her ``totality of the 
circumstances'' test--some of you were very kind: you said that 
that was a subjective standard. And what I said in the last 
hearing is that it is totally unintelligible, not only by the 
next Supreme Court who has to follow Georgia v. Ashcroft, but 
if you happen to be involved in the Justice Department or a 
lower Federal court, or if you happen to be drawing new 
district lines or deciding on an annexation case or any other 
policy-making decision, there is absolutely no standard 
whatsoever.
    So if section 5, in my view, is to have any meaning, we are 
going to have to decide here in Congress what it means. And 
it's going to have to be consistent with the Constitution, the 
14th amendment, and other concerns.
    Mr. Shaw, I really appreciated your written testimony. You 
point out the five major problems; the fact that under Georgia 
v. Ashcroft tangible minority gains can be sacrificed, point 
one. Point two: invites vote dilution.
    Ashcroft invites the very thing that happened in Florida 
for 100 years. When we had between 14 and 17 percent African-
American voting-age population, we didn't have one single Black 
Congressperson elected since Reconstruction was over. Very 
similar to other Southern States.
    And yet, Ashcroft invites that, on the theory that you can 
influence the outcome of an election. I don't know what 
``influence'' means. She says voters sympathetic to minority 
causes. Well, if you were able to decide, in a Democratic 
primary in the early '60's, if you were a Black American in 
Alabama, whether you wanted George Wallace or ``Big Jim'' 
Folsom to be elected governor, I guess you had a chance to 
influence that election. I don't know what ``influence'' means.
    And then she talks about sympathy to minority interests. By 
the time their careers were over, at least on the face of it, 
people like George Wallace and Strom Thurmond actually 
genuinely appeared to show some sympathy. But I don't know how 
a judge is supposed to interpret who has sympathy and who does 
not have sympathy, and at what point in their career they may 
or may not have sympathy.
    So I guess my question is this, for the attorneys here, Mr. 
Shaw and Ms. Lewis: given the Georgia v. Ashcroft standard, if 
I were deciding whether to do an annexation where section 5 
retrogression principles would be implicated, or a 
redistricting process, for example, would you take my case, 
assuming you were a for-profit lawyer and needed to make a 
profit, and give me a money-back guarantee if we had any 
complex issues--influence versus coalition versus minority-
majority districts? Are you confident enough that the standards 
we have here give you any reasonable guidance whatsoever to 
advise clients that have to make policy decisions at this 
level?
    Mr. Shaw, I really appreciated your written brief, so I 
will invite you first to express your level of confidence, if 
you can rely on the unintelligible--it was my word--standard in 
Georgia v. Ashcroft.
    Mr. Shaw. Well, thank you, Congressman. First, I hope that 
my testimony was not opaque--or rather, oblique. I hope that 
you understand that we could--I agree with your statement that 
there's a lack of a standard and clarity here. And if I were 
asked to take the case that you put to me, I would not be 
confident that there would be a standard that is intelligible.
    So my short answer is that I agree with you. And that's why 
we're saying that we need to restore the pre-Georgia v. 
Ashcroft standard of retrogression, defined in Beer.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Feeney. Mr. Chairman, with the permission of the 
Committee, I also asked Ms. Shaw [sic]. She's got some--Ms. 
Lewis. She's got some experience in this regard.
    Mr. Chabot. Yes. Ms. Lewis, you can respond.
    Ms. Lewis. And I'll give a very short answer. I would not 
give you a money-back guarantee on that. I think that any plan, 
redistricting plan, whether it's a city council plan up to a 
State legislative or congressional plan, from here on out, is a 
very difficult process and involves years of work; which means 
tons of fees, and no guarantee.
    Mr. Chabot. Thank you. The gentleman's time has expired.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman. I'm glad to see my 
friend, Mr. King, stayed today, so we can have our dialogue on 
the record; rather than off the record. And I was listening 
intently to his example from Iowa. And I would just say to him 
publicly that it would be interesting to see what the outcome 
of that race would have been, if it had been a single-Member, 
Black-on-White race; rather than a multi-Member district.
    A number of us--Lani Guinier was at the front of that, 
until people started shooting her down--have been strong 
advocates of multi-member districts, for the very reason that 
you are talking about. It is clear that in a lot of situations 
we've made enough progress that White people will cast one of 
three votes for a Black candidate. That makes them feel good. 
You know, it's a sign of progress.
    But if they are brought to the choice between casting a 
vote for a Black candidate or a White candidate, racially-
polarized voting sets in very quickly, and you don't get the 
result that you just described in the example you're talking 
about.
    I even introduced a bill--until I gave up on it because I 
couldn't get any support for it--to make it possible for States 
to go back to multi-member congressional districts. There's 
nothing in the law that prohibits multi-member congressional 
districts. It is Federal statutory law that says there must be 
single-member congressional districts.
    I think we could deal with a lot of racially-polarized 
voting issues if we had multi-member congressional districts. 
We could create more influence districts if we had multi-member 
districts. And, you know, elections might cost more, and that 
would be a disincentive to do it--and I recognize that--because 
you'd be running in larger geographic areas.
    But, you know, we've explored this in so many different 
ways. And it's great to be able to create a dialogue with my 
friend, who understands it. And I want to associate myself 
fully--I told you this going across the street--with the 
comments of Ted Shaw. There's nobody in America who would love 
to be at this point where we have a color-blind society and no 
need for the Voting Rights Act than minorities. I guarantee 
you.
    But in the meantime, between now and the time we get there 
to that desired goal, we can't just bury our heads in the sand 
and say, ``Let time take care of this and take its course.'' 
You know, because there's too much to be lost in that meantime 
while we're waiting on that to happen. We didn't have the right 
to vote, and we could have said, well, attitudes were changing, 
so let's just wait while attitudes change, and we don't need a 
Voting Rights Act. So, enough--enough already.
    Let me, Mr. McDonald, ask you if you can talk a little bit 
more about this distinction between coalition districts and 
influence districts, so that we have a better understanding of 
what that distinction is.
    Mr. McDonald. Well, I would define a coalition district as 
one that's not majority-minority, but in which the minority can 
join another block of voters, another minority group or White 
crossover voters, to elect a candidate of choice.
    Mr. Watt. That's kind of like the district that I represent 
in North Carolina.
    Mr. McDonald. Yes.
    Mr. Watt. That's what you're talking about?
    Mr. McDonald. Yes.
    Mr. Watt. Not a majority-Black district, but it's a 
coalition district because I can form coalitions with----
    Mr. McDonald. White voters----
    Mr. Watt. Yes.
    Mr. McDonald. --or Hispanic voters.
    Mr. Watt. Right.
    Mr. McDonald. And whether or not the right to have a 
coalition district is protected by the Voting Rights Act is a 
matter that has not been determined. The U.S. Supreme Court has 
assumed, but expressly without deciding, that you could bring a 
section 2 challenge, even if the minority group cannot be a 
majority in a single-member district, if you could show that 
the minority could coalesce with another group and create a 
coalition district.
    And I think on four occasions the Supreme Court has assumed 
that, but has not decided it. And the lower Federal courts are 
split on that issue. There are some that say you cannot bring a 
claim for a coalition district; that the Gingles standard 
requires you to show that the minority can be a majority in one 
or more single-member districts. But there are other decisions 
that say that you can bring a claim where you can draw a 
coalition district.
    And I agree with Mr. Shaw that you ought to be able to do 
that, under section 2 of the Voting Rights Act, and that 
section 5 of the Voting Rights Act ought to protect minority 
voters from the destruction of one of those coalition 
districts.
    Mr. Watt. Mr. Chairman, I know my time is up, but the 
second part of that question was: contrast that to influence 
districts.
    Mr. McDonald. Well, an influence district, I think, is one 
in which the minority doesn't have the ability to coalesce with 
other groups and elect candidates of choice.
    And I don't think that concept of influence really has very 
much meaning. I mean, I cited this political science study that 
said that it actually has a negative meaning; that if you have 
a substantial minority population, it often makes the White 
elected officials even more hostile to the interests of the 
minority voters, because they see them more as a threat. I 
mean, I think that's the sad reality.
    Mr. Chabot. The gentleman's time has expired.
    The Chair would extend the same privilege to the gentleman 
from Georgia on this side of the aisle, Mr. Westmoreland, who 
is also from Georgia, to ask questions for 5 minutes, as the 
Chair has already indicated he would extend that opportunity to 
the Members on this side. So the gentleman from Georgia is 
recognized for 5 minutes.
    Mr. Westmoreland. Thank you, Mr. Chairman. And let me say 
that, Ms. Lewis, Mr. Brooks, and Mr. McDonald, it's good to see 
you. And Mr. Shaw, I just don't know you, but I know that the 
other three really believe in the Voting Rights Act and 
standing up for people regardless of their race or political 
affiliation.
    Mr. McDonald, you read something from the brief, I believe, 
that was filed in the Ashcroft case. Do you know who wrote that 
brief?
    Mr. McDonald. Well, it was signed by the attorney general 
of the State, but my deep suspicion is that the special counsel 
that they hired actually wrote it. But I haven't talked to----
    Mr. Westmoreland. But that attorney general would be 
Thurbert Baker?
    Mr. McDonald. That is correct.
    Mr. Westmoreland. And he is an African-American.
    Mr. McDonald. That is correct.
    Mr. Westmoreland. Okay. And Mr. Shaw, you made an 
interesting comment. You said those who are protected don't 
want to be protected. We all agree with that. We don't think 
there needs to be any protection. And especially, those people 
who are under this protection don't want to feel like there's a 
need for it. Is that correct?
    Mr. Shaw. Well, I want to be clear. I wasn't saying that 
those who are protected don't want to be protected. I was 
saying that I think that they would welcome----
    Mr. Westmoreland. Right, they would rather not be----
    Mr. Shaw. --the commonality that they wouldn't have to be 
protected.
    Mr. Westmoreland. Right. That's correct. Right. Thank you. 
Do you think that the very people who are protected under the 
Voting Rights Act should be allowed to get out from under that 
protection if it's their choice?
    And let me tell you where I'm going with that. And my 
friend, Mr. Brooks, which I served with for 12 years and has 
been my friend--I was on the Georgia Reapportionment Committee, 
and I was there doing the cases. And I listened to all the 
arguments. And I was there when Ashcroft came through. I 
presented some maps that gave African-Americans more 
representation in the State of Georgia than the Democratic map. 
Mr. Brooks voted against that map that I presented. He voted 
for the map that Ashcroft upheld.
    So I guess if somebody's going to steal your bicycle, and 
stealing is a crime, you can say, ``Well, it's okay if Billy 
steals my bicycle; but if Bobby steals my bicycle, it's not 
right.''
    And if you look at polarized voting in Georgia--ask David 
Scott, my good friend over there, or Sanford Bishop. Thurbert 
Baker has won the attorney general's seat twice, statewide; 
Leah Sears on the supreme court; Michael Thurmond, labor 
commissioner; Willy Charlton, from Haralson County, a Black 
Republican elected in a majority-White district; Melvin Everson 
just won a special election in Gwinnett County in a majority-
White district. Champ Walker, on the other hand, an African-
American, was beat by Max Burns in 2002, because people felt 
Max Burns was a better candidate, although other Black 
candidates actually won in that district.
    And so we're a very candidate-driven State, I think. And I 
know that Mr. Brooks has talked about polarized voting. Would 
you say that all of Georgia is a polarized voting State, Mr. 
Brooks?
    Mr. Brooks. I think that, Lynn, Mr. Congressman, my 
friend----
    Mr. Westmoreland. Thank you.
    Mr. Brooks. Racially-polarized voting is a reality in 
Georgia. I do think there are aberrations to what we call the 
electability of African-Americans statewide. And you do recall 
that Leah Sears was appointed to the bench first. Thurbert 
Baker was appointed attorney general. Robert Benham was 
appointed. Most judges get appointed first, and then run as 
incumbents. And they have the incumbency with them, they have 
money with them, and they run. Those are not the kind of 
intensified races, as a U.S. Senate race, or a Governor's race, 
that you would find the kind of polarization.
    Now, let me say to you, I know we've made an awful lot of 
progress in my home State of Georgia. We've made an awful lot 
of progress. But we have not made sufficient progress to the 
extent that I would ever want Georgia to be removed from the 
protection of section 5.
    We're headed in the right direction. I think we're making 
progress, but I do not believe we can ever say--in any very 
near future, where we could say we don't need the protection of 
section 5.
    I think that what we're debating here now, as you go 
through the process of reauthorization, we're debating whether 
or not section 5 needs to remain intact and we need to overturn 
Ashcroft. I think what you would find in the State of Georgia 
is that there are some candidates who can and who will win, 
when they have the opportunity to raise the money, get known, 
build up the support. They may be Black; they may be White. 
They may run in majority-Black districts, or White-majority 
districts.
    But I can tell you this. African-Americans stand a better 
chance of winning in majority-Black districts, based on the 
political makeup of our State today, than in majority-White 
districts.
    Willy Charlton--a fine man, I've known him for years, 
deputy sheriff in Haralson County. Mr. Everson, I don't know 
very well, in Gwinnett County. But I would tell you that if we 
remove section 5 and all of the protections it affords us, our 
numbers will drop across Georgia and across the South. There's 
no doubt in my mind. But we are making progress.
    Mr. Westmoreland. Could I just ask one follow-up question?
    Mr. Chabot. The gentleman's time has expired. The gentleman 
is given an additional minute.
    Mr. Westmoreland. Thank you.
    Mr. Chabot. Including the answer, if possible.
    Mr. Westmoreland. Okay. Mr. Brooks, one last question. Do 
you think if--well, we sat on the reapportionment committee 
together. Was there ever a number that came up that was a 
number of influence, what percentage might be an influence 
district? And do you think that Ashcroft helps or hurts the 
Voting Rights Act?
    Mr. Brooks. Well, I think Ashcroft is a detriment. I think 
Ashcroft is a dangerous precedent. I think this Congress has to 
override Ashcroft. And I think we've got to move forward for 
the restoration of section 5 in all of its aspects as we've 
known it since 1965.
    Now, as I voted for the maps that you talked about earlier, 
your maps were broad. And it was more partisan politics than 
anything else. It was more partisan politics than anything 
else. So I think when you bring up your map, and you look at 
the map that was floated by Governor Barnes and the Democratic 
leadership, we were making political decisions at that time. We 
were in no way saying that we did not want the full protections 
of section 5 of the Voting Rights Act.
    Mr. Chabot. The gentleman's time has expired. I don't know 
if he wants to respond to the partisan politics remark or not.
    Mr. Westmoreland. Well, I promise you, if you can say that 
the map you voted for was not partisan politics, and my map 
was, then----
    Mr. Brooks. I think it was partisan on both sides. Yes, for 
sure.
    Mr. Westmoreland. Well, I disagree. But thank you, though.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Georgia, Mr. Lewis, is recognized for 5 
minutes.
    Mr. Lewis of Georgia. Thank you very much, Mr. Chairman. I 
think during the exchange, Mr. Brooks, one of the questions 
that I wanted to ask you--and I wanted you to be very candid 
and very open with us and with the Committee--that would you 
agree that the Georgia v. Ashcroft is the result of cold, down-
home, partisan politics?
    Mr. Brooks. Yes.
    Mr. Lewis of Georgia. Okay. You know, Mr. Brooks, there has 
been a great reliance on my testimony and the testimony of 
other Black elected officials in Georgia v. Ashcroft. I think 
Justice O'Connor cited my testimony.
    Mr. Brooks. She did.
    Mr. Lewis of Georgia. Does this new standard in Georgia v. 
Ashcroft give too much deference to State officials? What are 
the dangers of this standard? And maybe Mr. McDonald would like 
to respond to it.
    Mr. McDonald. Well, it does. It allows the States to make a 
judgment that they can destroy the districts that provide 
minority voters an opportunity to elect candidates of choice in 
favor of some nebulous, difficult to quantify or apply 
standard.
    And I don't have much doubt, Congressman Lewis, given the 
anti-Voting Rights Act rhetoric in the State's brief in Georgia 
v. Ashcroft, the positions that it took on the merits, that you 
could destroy all the majority-minority districts, consistent 
with its view of what section 5 would provide, I think it would 
have a devastating impact on minority voting strength.
    Mr. Lewis of Georgia. If you had an opportunity--and you 
have an opportunity--to tell this Committee in extending or 
renewing section 5, would you like to see any changes?
    Mr. McDonald. Well, there's a coalition of civil rights 
groups that supports an extension, and they also support 
strengthening or restoring the Voting Rights Act to its former 
strength in several areas.
    And one of them is to deal with Georgia v. Ashcroft. The 
other is to deal with the Bossier II decision, which provided a 
retrogressive purpose standard for section 5 which I think is 
utterly indefensible. It would have--if that had been the 
standard in effect in 1980, then that congressional district 
that the legislature drew purposefully, to keep from drawing a 
majority-Black district in the Atlanta area, would have been 
precleared, presumably.
    And then I think that the Supreme Court has ruled that in 
successful voting rights cases plaintiffs are not entitled to 
recover attorneys' fees. That really makes it almost impossible 
for minority communities to bring voting rights lawsuits, 
because they don't have the ability to hire lawyers, they don't 
have the ability to pay for experts. And in a typical voting 
rights case, you need probably three experts: a demographer, to 
draw plans; a statistician, to analyze voting patterns; and a 
political scientist or historian, to talk about what, you know, 
the present-day impact of race is in a jurisdiction.
    So somebody's got to eat that expense. And it just makes it 
much more difficult for the minority community to implement the 
Voting Rights Act. And I would suggest that's a positive thing 
that Congress ought to look at and address.
    Mr. Lewis of Georgia. I think each member of the panel 
would agree that, say, in Georgia, and maybe in some of the 
other covered States and political subdivisions, we have made 
some progress. You would agree?
    Mr. McDonald. Yes.
    Ms. Lewis. Yes.
    Mr. Lewis of Georgia. But we have not created what we used 
to call in the movement ``the beloved community,'' or a truly 
interracial democracy. We may not see it in our lifetime. So 
there may be a need for section 5 and other sections in the 
Voting Rights Act for generations yet to come.
    I would like to have some just maybe statements about what 
do you see, our path down the road? Can we take a long, hard 
look? Because there's some people saying, ``Get rid of the 
Voting Rights Act, get rid of section 5, make it nationwide.'' 
I'd like to have your feelings about that.
    Mr. McDonald. Well, Congressman Lewis, can I respond to 
that? You know, I've asked myself that question, and more of 
late than before, you know: when will we get beyond the issue 
of race? And I must say, I'm constantly reminded of the words 
of the great modern, contemporary, American poet, Bob Dylan, 
who asks himself those very questions, you know, in ``Blowin' 
in the Wind'':
    ``How many years can a mountain exist before it's washed in 
the sea?''
    ``And how many times can a man turn his head and pretend 
that he just doesn't see?''
    ``The answer my friend, is blowin' in the wind.''
    And I must say, if Bob Dylan doesn't know the answer, I 
don't presume to know it. [Laughter.]
    But I am an optimist. But I also know that we're stuck with 
our basic humanity; you know, our ego, our biases, our lack of 
knowledge, and our ambitions. And I think that what we must do 
as a nation is to have strong laws that provide for equal 
rights for all of our citizens, and they must be effectively 
enforced by the courts.
    Mr. Lewis of Georgia. I appreciate it.
    Mr. Chabot. The gentleman's time has expired.
    Mr. Lewis of Georgia. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you. And the gentleman has now succeeded 
in getting Bob Dylan in the Congressional Record here. 
[Laughter.]
    It may be a first. I'm not sure.
    The gentleman from Georgia, Mr. Scott, is recognized for 5 
minutes.
    Mr. Scott of Georgia. Thank you very much, Mr. Chairman. 
I'd like to focus, if I may, on what it's going to take for us 
to excise Georgia v. Ashcroft out of the law. I mean, that is 
our purpose here. And I believe, in order to do that, we need 
to establish a record at this hearing of purposeful 
discrimination.
    Because it is clear that our efforts are going to be held 
up in courts; there's going to be pleas of unconstitutionality. 
And before these hearings, I wasn't as concerned about the 
viability and the continuation of the Voting Rights Act; but I 
certainly am now. I think that the Voting Rights Act, 
especially section 5, is severely threatened.
    And probably, the most cancerous part of it is this 
Ashcroft decision. Because if we're able to change that 
retrogression standard from Beer to influence, we could see a 
chilling effect and an unraveling of the progress of African-
Americans in the political scheme of things.
    And I, too, wish that day would come. I know the answer is 
blowing in the wind. But maybe we can do a little bit of help 
to get a hurricane behind that wind, so that we can get an 
answer.
    But I do believe this, and this is what I want to ask each 
of you. We have to show purposeful discrimination. We have to 
be able to show that Ashcroft and Georgia has an intent of 
discrimination; that it does in effect violate either parts of 
the 14th amendment or the 15th amendment; and specifically, the 
15th amendment.
    In other words, it must show that Ashcroft intended to 
discriminate, there was purposeful discrimination in there, and 
it does in fact abridge and deny the ability for African-
Americans to vote, or for citizens to vote, on the base of race 
or color; and in the case of the 15th amendment, the addition 
was, and also servitude or slavery.
    So with that in mind, I'd like to ask--first, let me ask 
you, because I think, Representative Brooks, you really need to 
clarify for the record what's going to come up, as a reason of 
why in the world can we show that this had racial intent, when 
the Georgia Black legislators voted for that plan.
    I was there. You were there. Westmoreland was there, 
Congressman Westmoreland was there. I mean, we were all very 
much active in that part. And it's very much important, I 
believe, for us to understand and dissect that the Black 
legislators' vote for this was not an endorsement or support of 
the State's position in their argument against the Supreme 
Court.
    Mr. Brooks. Absolutely.
    Mr. Scott of Georgia. It was a political reality of the 
situation, and did not diminish--and our support of that was 
not to support an influence district away from a majority 
district.
    But you were very instrumental in that. And I'd like to get 
your comments on the record to show that that vote by the Black 
legislators was in no way condoning this sliding scale of 
retrogression.
    Mr. Brooks. Well, you've stated it very well. You've stated 
it very well. We made a political decision to vote for maps 
that would shave off percentages of African-American districts, 
so that we could create opportunities to elect Democrats. It 
was a political decision.
    Our voting for those maps were in no way an endorsement of 
retrogression or dilution. We wanted to maintain the premise of 
having majority-Black districts going forward, but we saw a 
political opportunity that was before us. And of course, as you 
recall, our former Governor Barnes, and others in the 
Democratic Party, we made a decision, Majority Leader Charles 
Walker from Augusta and others. We decided that we would take 
this chance.
    But as I've said over and over, even in the case that 
Laughlin filed on our behalf, I am quoted as saying this was a 
political decision that we made, but this was not an 
endorsement of dilution or retrogression. This was an 
aberration in the old political scheme.
    This is not to say that we would go forward and ever 
consider across-the-board, carte blanche, drawing minority 
districts and shaving off percentages that would put African-
Americans in those majority districts at risk. We wanted to 
maintain majority-Black districts going forward.
    Mr. Scott of Georgia. Thank you very much, Mr. Brooks.
    My time is short, but Mr. McDonald, can you pinpoint and 
give us your own opinion that Georgia v. Ashcroft had 
purposeful discrimination intent?
    Mr. McDonald. Well, we filed an amicus brief on behalf of 
GABEO, of which Tyrone Brooks is the President, and others, and 
we never raised that argument. But I think that you're 
absolutely right that the civil rights community and others in 
Congress who want to, you know, strengthen and extend the 
Voting Rights Act, must establish a record of the need to do 
so.
    And I think that it is clearly possible to do that. I mean, 
the office that I'm involved in alone, since 1982, since the 
last extension, has been involved in some 300 lawsuits, voting 
rights lawsuits. And we're in the process now of summarizing 
all of those, so that we can make a report to give to the 
Committee and Congress.
    And I must say, I'm really sort of--I had almost forgotten, 
you know, how the pattern of purposeful discrimination is 
evident in my review of all of these cases. I think that we 
plainly will be able to do that.
    Mr. Chabot. The gentleman's time has expired. The Chair 
would recognize--excuse me.
    Mr. Scott of Georgia. I just wanted to get one more point 
in that I think would help us----
    Mr. Chabot. Go ahead.
    Mr. Scott of Georgia. --establish facts, from Mr. Shaw.
    And I think that you established a pattern here. In your 
opposition to it, in your statement, you said that--you gave 
four counts: the national preference for single-member 
electoral districts, principally based upon geographic 
consideration; the continued existence of racially-polarized 
voting patterns; the persistent effort to dilute minority votes 
by depriving the minority communities of the benefit of fairly-
drawn redistricting plans; and that you had stated that you 
wished to direct the remainder of your remarks to explaining 
several reasons why Congress should act to restore protection 
for the abilities of minority voters to elect candidates of 
their choice as a touchstone of the retrogression analysis.
    Would you say that the Ashcroft plan denied that ability, 
and therefore did abridge, on the base of race or color, the 
ability of that community to elect a person of their choice?
    Mr. Shaw. I think Georgia v. Ashcroft opened the door to 
that, and I also think it's very important to add that. I think 
that while we have to lay a record here for the need of the 
extension of the Voting Rights Act, that all Congress has to 
do--and I don't mean to in any way diminish the task--but all 
Congress has to do with respect to section 5 is to restore 
Beer.
    I don't think you were suggesting that we need to introduce 
an intent standard with respect to retrogression. I think 
you're just talking about going back to what Beer said; which 
was retrogression was prohibited.
    Mr. Scott of Georgia. Right. But I am saying that those who 
would be in opposition to this will take it to court, will 
probably move to the Supreme Court. We all know what is 
happening with the Supreme Court. It's getting a more 
restrictive manner.
    Mr. Shaw. Yes. Yes, sir.
    Mr. Scott of Georgia. And I think that, wherever we can, we 
must understand that that's going to be the case. And we have 
to specifically show where Ashcroft, Georgia v. Ashcroft, does 
impact, run square into----
    Mr. Shaw. Yes, sir.
    Mr. Scott of Georgia. --that 15th amendment.
    Mr. Shaw. I agree, sir.
    Mr. Chabot. The gentleman's time has expired.
    The Chair would recognize himself for just a point of 
clarification. Mr. Brooks, I just wanted to follow up on one of 
your statements.
    The Voting Rights Act--the purpose of the Voting Rights 
Act, was to protect people, specifically African-Americans, in 
this country from being discriminated against in their ability 
to vote. Now, you stated before, to paraphrase what you said, 
something along the lines that you all had made a partisan 
decision to basically protect Democratic districts, or the 
Democratic Party. And do you believe that that's an appropriate 
use of the Voting Rights Act?
    Mr. Brooks. No, I do not. I do believe that in the context 
of the political environment in which we all serve--whether 
you're in Congress or whether you're in a general assembly or a 
county commission or a city council--from time to time, you 
have to make tough political decisions.
    And what we had before us during the last reapportionment 
in Georgia was a plan that would afford those of us who 
happened to be Democrats, the Democratic Party, an opportunity 
to elect more Democrats. We took a chance, voting for a plan 
that really, in my opinion, was not really in the best 
interests of what the Voting Rights Act stands for and what we 
fought for; what John Lewis and I and Hosea Williams and others 
marched across the Edmund Pettus Bridge for.
    So it was a political decision. But in hindsight, it was 
the wrong decision as it relates to upholding what the Voting 
Rights Act was intended for.
    Mr. Chabot. I thank you.
    I think the gentleman from New York, Mr. Nadler, had a 
question?
    Mr. Nadler. Yes. Thank you, Mr. Chairman. Since I was on 
the floor on the motion to instruct on the Patriot Act, I 
missed most of the testimony, which is why I haven't been 
taking my normal turn of asking 5 minutes of questions. But I 
do want to ask Representative Brooks a question, based on the 
statement that you made a moment ago with regard to this 
political decision on that Georgia reapportionment.
    Is your testimony--or maybe it's not your testimony. Is 
your belief--you said that you made a--you and others, I 
presume--made a political decision to vote for a plan because 
you thought it was better for political reasons, etcetera, 
etcetera; even though on Voting Rights Act grounds, you might 
have had a problem with it. That's essentially what you said, 
right?
    Mr. Brooks. It was a political decision.
    Mr. Nadler. Okay. You made a political decision for 
political reasons that you thought politically the right thing 
to do was ``X,'' even though you thought on voting rights 
grounds it might be ``Y,'' something might be better.
    Mr. Brooks. Well, when we were making that decision, the 
issue of retrogression, dilution, maintaining section 5, was 
not even on the table. It was a matter of plans before us.
    Mr. Nadler. I understand.
    Mr. Brooks. Plans that would help either party.
    Mr. Nadler. Okay. Now, my question is----
    Mr. Brooks. The Democratic or the Republican Party.
    Mr. Nadler. My question is, do you believe that the Voting 
Rights Act should be amended to prohibit you from making that 
decision if it came up again? In other words, do you think 
that, whether that decision was right or wrong in retrospect, 
it should be illegal?
    Mr. Brooks. I do believe this. I do believe that those of 
us, particularly African-Americans, who are the beneficiaries 
of the Voting Rights Act----
    Mr. Nadler. I'm sorry?
    Mr. Brooks. I do believe this, that those of us who happen 
to be African-Americans and minorities who are chief 
beneficiaries of the Voting Rights Act--because I wouldn't be 
sitting here as a legislator, talking to you, were it not for 
the Voting Rights Act; my colleagues wouldn't be in Congress, 
were it not for the voting--I think we have to be very, very 
sensitive, going forward, as we make these political decisions, 
that we do not ever send the wrong messages, as it relates to 
the protections afforded us under 2 and 5 of the Voting Rights 
Act. I mean, we have to be very sensitive and very careful.
    Mr. Nadler. Of course. Of course, and I----
    Mr. Brooks. This is a lesson for us.
    Mr. Nadler. I certainly would agree with you. But the 
question I'm trying to get is, do you think that the Voting 
Rights Act should be amended so that that decision would not be 
discretionary with a very sensitive legislator, but the 
decision that you made would be prohibited? And I'd like to ask 
each of the members that question.
    Mr. Brooks. Not at the expense of the full protections of 
section 5, no, I do not.
    Mr. Nadler. Okay, and the other members of the panel?
    Mr. McDonald. I would just underscore that the plan that 
Tyrone voted for did not destroy any of the majority-Black 
districts.
    Mr. Nadler. Any of the what?
    Mr. McDonald. Any of the majority-Black districts. The 
three senate districts that were denied preclearance, the 
three-judge court simply ruled that the State had not carried 
its burden of showing that the reductions----
    Mr. Nadler. So you do not believe that we should amend the 
law to make that illegal?
    Mr. McDonald. To make what illegal, Congressman?
    Mr. Nadler. Voting for that plan.
    Mr. McDonald. Well, my own feeling is that the Supreme 
Court ought to do its duty and establish standards for partisan 
gerrymandering. I mean, we had the Davis v. Bandemer decision, 
in which the Court for the first time said that you stated a 
claim. But there is no decision that I'm aware of that has ever 
ultimately struck down a plan on the grounds that it was a 
partisan gerrymander.
    Mr. Nadler. You're misunderstanding my question. I'm not 
asking you if it should be illegal because it was partisan. I'm 
asking if you think that, given the impact it did or didn't 
have on retrogression, or whatever the implications were--which 
I'm not really that familiar with because I didn't hear most of 
it--that that should be--it was obviously a legal decision to 
vote for that plan. Should we amend the Voting Rights Act so 
that what that plan did would be illegal under the new Voting 
Rights Act?
    Mr. McDonald. Because it was driven by partisanship?
    Mr. Nadler. No, not because of that. Because of whatever 
problems or concerns that we have, or that you had, with regard 
to the Voting Rights Act implications, because it took some 
districts below 50 percent.
    Mr. McDonald. I thought the decision of the three-judge 
court was entirely proper; that even though it didn't destroy 
any majority-Black district, that it simply found that the 
State had not carried its burden of showing that there was no 
retrogression, that the reductions would not interfere with the 
ability of Blacks to elect representatives of its choice. And I 
think that was an entirely appropriate decision.
    Mr. Nadler. Ms. Lewis----
    Mr. Chabot. The Chair would just make a point. I'm not sure 
how much time you're going to use, but we didn't put you on the 
clock----
    Mr. Nadler. I just wanted to get an answer from Ms. Lewis, 
Mr. Chair, on the same question.
    Mr. Chabot. If they could make it relatively quick. We've 
got another hearing at 4. So if we could make the brief 
responses, the Chair would appreciate it.
    Mr. Nadler. I see.
    Ms. Lewis. Well, I can make my response very brief. I 
think, although I don't have the answer for you in how you 
would prohibit that problem from occurring again, I think in 
reauthorizing section 5, you have to focus on minority voters' 
rights, versus the preferences of incumbents.
    And I think in Georgia the problem came down to exactly 
that. In fact, one of the incumbents, who thought that lowering 
his district to 51 percent Black voting-age population was just 
fine for him--he had been there a long time; he was the 
majority leader in the State senate; he wouldn't get beaten. 
That was an error in two respects: one, he did get beaten; and 
two, it doesn't look out for the next person coming along, 
which should be the focus of the minority voting.
    Mr. Nadler. I was told he was running when he was under 
criminal indictment. That may affect his judgment somewhat.
    Ms. Lewis. Well, no, he actually won when the indictment 
came out.
    Mr. Nadler. Mr. Shaw?
    Mr. Shaw. Well, I agree, with respect to drawing a 
distinction between incumbents and Black voters. That's an 
important distinction. It's one to which I referred earlier, I 
think. Perhaps you weren't in the room at the time. And I just 
want to underscore that again.
    I also want to say that what we want, with respect to your 
question about what ought to be illegal and what ought to be 
legal--what we want is a restoration of section 5 to the Beer 
standard, the retrogression standard. And if we get that----
    Mr. Nadler. That's the pre-Ashcroft v.-whatever?
    Mr. Shaw. Pre-Ashcroft, that's right. If we get that, we 
will be satisfied that we are protecting the interests of 
minority voters.
    Mr. Nadler. Thank you very much.
    Mr. Chabot. The gentleman's time has expired. If the 
gentleman from Georgia would bear with us, I think that this 
gentleman from Georgia wanted to make a very quick point here.
    Mr. Westmoreland. I just wanted to ask one question. I know 
Mr. Brooks, that he voted for the map for political reasons. If 
you saw an opportunity for Ms. Pelosi to be Speaker of the 
House, for Mr. Conyers to be Chairman of the Judiciary, for 
Steny Hoyer to be the Majority Leader, would you think that it 
would be okay to reduce the numbers in majority-Black 
congressional districts to produce that result?
    Mr. Brooks. It depends on how far you reduce them. If you 
are putting the African-American community in a position where 
they can no longer determine----
    Mr. Westmoreland. But Mr. Brooks, we've already determined 
there is no number.
    Mr. Brooks. Well, you know, when we passed the Voting 
Rights Act in '65 and the reauthorization----
    Mr. Westmoreland. And I'm not trying to interrupt you, but 
a simple ``Yes'' or ``No.''
    Mr. Brooks. It just depends. It's a hypothetical that you 
are----
    Mr. Westmoreland. Do you think that it would be the wise 
political move to do that, even if it retrogressed majority-
Black districts?
    Mr. Brooks. Well, retrogression would be something I could 
never accept. I would not ever sacrifice the full protections 
of section 5----
    Mr. Westmoreland. Okay.
    Mr. Brooks. --simply to promote a particular candidate or a 
political party. And I think that's basically what it came down 
to in 2001 in Georgia. We were putting political decisions 
ahead of what the Voting Rights Act really is all about, and I 
think we made a mistake.
    Mr. Westmoreland. Thank you.
    Mr. Chabot. Thank you. The gentleman yields back.
    The gentleman from Georgia, Mr. Bishop, is recognized for 5 
minutes.
    Mr. Bishop. Thank you very much. I was really wanting to 
ask Mr. Brooks if he would put into the context what was 
actually happening. Because as I understand it--although I was 
not there at the time, I tried to keep my ear pretty close to 
the ground there--there were very strong feelings by White 
Democrats, led by the governor, with regard to the partisan 
outcome of redistricting. And there were very strong concerns 
within the Georgia legislative Black caucus with regard to 
protecting the non-retrogression standards.
    And those two issues were tugging against one another. And 
as a consequence, the political and the voting rights ended up 
with a compromise in the plans that ultimately were voted on, 
which resulted in Ashcroft.
    It's my understanding--and correct me if I'm wrong--that 
the governor at the time, who was very aggressive and very bold 
and, unlike many governors before him, decided to get involved 
in redistricting up-front----
    Mr. Brooks. He did.
    Mr. Bishop. --and personal, he was responding to what he 
perceived as good precedent from the Supreme Court that 
political gerrymandering was okay within the bounds of the 
Supreme Court, as long as it didn't violate the Voting Rights 
Act. And he was trying to stretch that standard to the point 
that he could, to accomplish both the incumbency protection, 
the party protection, and to get as few squeaks or cries from 
the Black caucus in terms of retrogression. Would you say 
that's a fair statement?
    Mr. Brooks. I think you summarized it very well, 
Congressman Bishop. I think the governor was relying on the 
Shaw v. Reno decision. I think he was reading it as a lawyer, 
as you are, reading it very well, and he was trying to hold 
onto a Democrat-majority general assembly. The African-American 
legislators, who were all Democrats, were trying to hold onto 
their chairships, and were looking at going forward to the next 
election cycle, to elect more Democrats. So it was strictly a 
political decision. And you've summarized it very well.
    Mr. Bishop. So then, with respect to Ashcroft, it's the 
consensus of all the panelists, as I understand it, that 
effective enforcement under section 5 would be better without 
the Ashcroft standard, back to Beers [sic].
    Mr. Brooks. Yes.
    Mr. Bishop. And that, as I heard from Mr. Shaw, if we were 
to just go back to pre-Ashcroft law in our renewal of the 
Voting Rights Act, that we'll be where we need to be with 
regard to better and more effectively having standards for 
enforcing section 5 and the Voting Rights Act. Is that a fair 
statement?
    Mr. Shaw. Yes.
    Ms. Lewis. Yes.
    Mr. Bishop. I appreciate very much all of your 
contributions to this discussion. I have some questions that 
bother me with regard to the abolition of the expiration of 
section 5, or the application of section 5 to all 50 States. 
Could I just get what your reactions would be to either of 
those consequences?
    What do you think? What do you view the enforcement of the 
Voting Rights Act and of voting rights and the progress that 
has been made thus far, if, one, section 5 is allowed to expire 
or, two, if section 5 is expanded to all 50 States?
    Mr. Shaw. If section 5 is allowed to expire, we will lose 
what has been part of this crown jewel civil rights 
legislation. We will find that there will be much less 
protection on behalf of minority voters against schemes that 
dilute their voting strength.
    If it is extended to all 50 States, it will lay the 
groundwork for a Supreme Court decision which will strike down 
the Voting Rights Act, or at least section 5, as 
unconstitutional; because the Court has made it clear that 
there has to be a record that supports the extension of this 
kind of legislation to jurisdictions. And to extend it would be 
a terrible mistake. It would be a Trojan horse.
    Mr. Chabot. The gentleman's time has expired. Did the 
gentleman want to respond, very briefly?
    Mr. Bishop. Would you foresee any trends such as occurred 
post-Reconstruction, if the Voting Rights section 5 were not 
extended? For example, most recently, in Georgia the picture 
ID. If there were other pieces of legislation such as that that 
impacted on voting and the ability to vote, that had no 
oversight from the Justice Department or no cause of action in 
court to review that particular action as is provided in the 
Voting Rights Act, do you foresee a recurrence of that pattern 
from 100 years ago?
    Mr. Shaw. I think that, just as there were numerous Black 
Congressmen and Senators in the Reconstruction era, and we lost 
that in the post-Reconstruction era after the redemption, I 
think that there would be a threat of diminished 
representation.
    I don't think we'll go back to where we were before. I 
don't think we'll ever do that. But I think there could be a 
lot of damage that could be done.
    Mr. Chabot. The gentleman's time has expired.
    The Chair has several announcements to make here. First of 
all, we do have a ninth hearing scheduled for next week. The 
staffs are aware of this. It's on Tuesday at 12:30. It's on 
sections 6 and 8 of the Voting Rights Act, the Federal 
Examiners and Observer provisions.
    We want to thank very much this panel for their very 
helpful testimony here this afternoon. This is, as we know, a 
very important topic. And we want to thank all the Members for 
their attendance.
    I would also note that we have another hearing that was 
supposed to start at 4. We're obviously a little behind that. 
We apologize to the witnesses, who are probably here waiting.
    We're going to take a 2-minute break, just to reset up the 
tables, and then we're going to begin right away. And it's been 
brought to our attention that we have votes coming up 
relatively soon----
    Mr. Conyers. Mr. Chairman?
    Mr. Chabot. --so we're going to try to get along as quickly 
as we can.
    Yes, the gentleman from Michigan.
    Mr. Conyers. I wanted to indicate for the record that there 
is Lawrence Guyot, Esquire, in the chambers. And I met him in 
Mississippi, when I was a lawyer and he wasn't a lawyer. And 
I'm very glad that he is covering these hearings at this 
moment.
    Mr. Chabot. Excellent. Would the gentleman like to stand 
and be recognized here? [Applause.]
    Mr. Conyers. Civil rights leader.
    Mr. Chabot. Thank you. Okay, if there is no further 
business to come before the Committee, we are adjourned. We'll 
be back in 2 minutes.
    [Whereupon, at 5:03 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

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



   Prepared Statement of Theodore S. Arrington, Professor and Chair, 
   Department of Political Science, University of North Carolina at 
                               Charlotte



   Letter from MALDEF, NCLR, NALEO, and LULAC to the Honorable Steve 
     Chabot regarding Georgia v. Ashcroft and the Latino community



  Prepared Statement of Robert A. Kengle, former Deputy Chief, Voting 
         Section, Civil Rights Division, Department of Justice





           Georgia v. Ashcroft (539 U.S. 461, 123 S.Ct. 2498)



                                 
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