[Senate Hearing 109-562]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-562
 
              MODERN ENFORCEMENT OF THE VOTING RIGHTS ACT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 10, 2006

                               __________

                          Serial No. J-109-75

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     3
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
    prepared statement...........................................   112
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   127
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Cartagena, Juan, General Counsel, Community Service Society, New 
  York, New York.................................................    14
Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas.....    20
Kim, Wan J., Assistant Attorney General Civil Rights Division, 
  Department of Justice, Washington, D.C.........................     4
Landreth, Natalie A., Staff Attorney, Native American Rights 
  Fund, Anchorage, Alaska........................................    18
McDuff, Robert B., Attorney, Jackson, Mississippi................    21
Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta, 
  Georgia........................................................    16

                         QUESTIONS AND ANSWERS

Responses of Juan Cartagena to questions submitted by Senators 
  Cornyn, Coburn, Leahy, Kennedy, and Schumer....................    31
Responses of Gregory S. Coleman to questions submitted by 
  Senators Coburn and Cornyn.....................................    50
Responses of Wan J. Kim to questions submitted by Senators 
  Specter, Sessions, Cornyn, Coburn, Leahy, and Kennedy..........    55
Responses of Natalie A. Landreth to questions submitted by 
  Senators Cornyn, Coburn, Leahy, and Kennedy....................    73
Responses of Robert B. McDuff to questions submitted by Senators 
  Coburn, Cornyn, Kennedy, and Leahy.............................    82
Responses of Frank B. Strickland to questions submitted by 
  Senator Coburn.................................................   100

                       SUBMISSIONS FOR THE RECORD

Cartagena, Juan, General Counsel, Community Service Society, New 
  York, New York, prepared statement.............................   103
Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas, 
  prepared statement.............................................   108
Kim, Wan J., Assistant Attorney General Civil Rights Division, 
  Department of Justice, Washington, D.C., prepared statement....   114
Landreth, Natalie A., Staff Attorney, Native American Rights 
  Fund, Anchorage, Alaska, prepared statement....................   124
McDuff, Robert B., Jackson, Attorney, Mississippi, prepared 
  statement and attachment.......................................   129
Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta, 
  Georgia, prepared statement....................................   151


              MODERN ENFORCEMENT OF THE VOTING RIGHTS ACT

                              ----------                              


                        WEDNESDAY, MAY 10, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:30 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Arlen 
Specter, Chairman of the Committee, presiding.
    Present: Senators Specter, Hatch, DeWine, Sessions, Cornyn, 
Leahy, and Kennedy.

 OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM 
                   THE STATE OF PENNSYLVANIA

    Chairman Specter. Good morning, ladies and gentlemen. It is 
9:30 and the Judiciary Committee will now proceed on the third 
in a series of hearings on the renewal of the temporary 
provisions of the Voting Rights Act. Yesterday, we examined the 
legal issues surrounding reauthorization, and today we will 
focus on how the Voting Rights Act is enforced.
    Just reading the statute does not get one very far until we 
probe on how the Act is enforced. For example, Section 5 
provides that a voting practice must ``not have the purpose and 
will not have the effect of denying or abridging the right to 
vote on account of race or color,'' or a voter's English 
proficiency. That provision, a very important one, has been 
subject to significantly different interpretations.
    Beginning in 1976, the Supreme Court applied a thoroughly 
mechanical formula in evaluating district plans under Section 
5. If the plan decreased the number of majority/minority 
districts, the Court would strike it down. Then in the 1990's, 
the Justice Department went a step further and followed a 
policy of rejecting any districting plan that did not create 
the maximum number of majority/minority districts possible. In 
Georgia v. Ashcroft in 2003, the Court rejected both its own 
approach and that of the Justice Department and held that 
districting plans can pass Section 5 even if they decreased the 
number of majority/minority districts.
    It is likewise important to understand the enforcement of 
Section 203, which requires bilingual election materials in 
certain jurisdictions. That section says nothing about how 
those jurisdictions should distribute bilingual election 
materials. It only requires a jurisdiction to ``provide them.'' 
It is enough that the materials be available on request. Must a 
State locate voters and ensure they receive them? What criteria 
should the States use to develop its programs? How the 
Department of Justice and local jurisdictions answer these 
questions has a great impact on how effective Section 203 will 
be.
    These are all complicated issues. We all recognize the 
overwhelming importance of the Act in securing fair treatment 
for minority voters, and the right to vote and the exercise of 
the right to vote is obviously the basic protection of a 
citizenry and a democracy. To help us examine these issues 
today, we have the head of the Department of Justice Civil 
Rights Division, Assistant Attorney General Wan Kim. We also 
have five distinguished attorneys with extensive experience 
litigating and responding to the Voting Rights Act.
    I thank Senator Kennedy for his leadership on this 
important subject going over--let's see, the 1960's, the 
1970's, the 1980's, the 1990's--five decades, Senator Kennedy. 
You are recognized for your opening statement.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you, Mr. Chairman, again, for the 
breadth and depth of these hearings that will clearly establish 
a record on this very important and fundamental piece of 
legislation, perhaps the most important legislation we will 
consider in the Congress.
    As we know, the Voting Rights Act was adopted to address 
the systematic and egregious discrimination endured for over a 
hundred years in the country, and we heard testimony yesterday 
regarding the unfortunate fact that in numerous ways this 
discrimination still endures today. Laughlin McDonald, the 
Director of the ACLU's Voting Rights Project, provided very 
recent examples, and he testified about a TRO that was just 
issued last month on potentially discriminatory voting changes 
made in Randolph County, Georgia, that were not submitted for 
preclearance.
    Regrettably, it is not surprising that it may take more 
than 40 years to eliminate the blight of racial discrimination 
in voting. The Voting Rights Act combats the ills that are at 
the core of the 14th and 15th Amendments--racial prejudice. And 
while the remedy is strong, it is appropriate, given the 
fundamental importance of the right to vote and participate in 
the political process. And as the Supreme Court has held, the 
electoral franchise is a fundamental right that is preservative 
of all other rights. So we cannot discard lightly the 
safeguards adopted in the Voting Rights Act, particularly in 
Section 5 of the Act. The progress we have made has been great, 
but it is not complete, and we cannot allow it to be 
jeopardized or diminished.
    Today we will be hearing about the Justice Department's 
efforts to enforce the Voting Rights Act, and while I have some 
concern about the Justice Department's recent approach to 
implementing the Act, today we will hear from the Assistant 
Attorney General about the Justice Department's efforts and the 
continuing need for vigorous enforcement. Section 5 has been 
the Federal Government's most effective tool against voting 
discrimination. And even after the Act was passed, there was 
real and substantial danger that discriminatory decisions by 
jurisdictions covered by Section 5 would deny or abridge the 
right to vote. In fact, jurisdictions did adopt a host of 
voting devices and changes, some subtle and some overt, with 
the intent to shut minorities out of voting power. And some of 
those decisions had a discriminatory purpose. Some had a 
discriminatory effect. Others had both. It was because of the 
work of the Justice Department under Section 5 of the Act that 
those invidious voting changes were not implemented and that 
any progress in political participation was not undone.
    Taking a long view, historically the Justice Department has 
vigorously carried out its Section 5 responsibilities precisely 
as Congress intended it to. The record we will be examining, 
which the House hearings examined closely, indicates that there 
is a continuing problem with discriminatory decisionmaking with 
respect to voting by jurisdictions covered by Section 5.
    Today we will also hear from witnesses who will describe in 
more detail the concerns about continuing discrimination in 
some of the jurisdictions covered by Section 5 and Section 203, 
the minority language sections of the Voting Rights Act. As we 
have noted, compiling this record is one of the most important 
purposes of the hearings and will provide a sturdy foundation 
for our actions in this most important piece of legislation.
    We have a number of communities in my own State that are 
covered by Section 203, including Boston and Chelsea and 
Lawrence, Southbridge and Springfield as well.
    So, in addition, we will specifically be hearing about the 
role that Section 203 has played in ensuring the right to vote 
and having that vote count fully and fairly. Section 203 
requires that certain jurisdictions provide for language 
assistance to American citizens who are limited in their 
English proficiency. Section 203 directly addresses barriers to 
voting for Asian Americans, Latinos, and Native Americans, and 
it, too, as a provision should not be allowed to expire.
    So I thank the Chair and look forward to the testimony.
    Chairman Specter. Thank you, Senator Kennedy.
    Senator Cornyn, would you care to make an opening 
statement?

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF 
                             TEXAS

    Senator Cornyn. Just briefly, Mr. Chairman. Thank you again 
for this series of hearings. I look forward to hearing from the 
witnesses along the lines that we previously inquired of other 
witnesses, trying to ascertain what sort of empirical evidence 
exists of changes in voting practices and whether some of the 
stereotypes that certainly were validated by the facts years 
ago in terms of precluding minorities from fully participating 
in the process, whether those stereotypes are still valid today 
in light of some of the dramatically improved changes that we 
have seen. And so I look forward to inquiring of the witnesses 
and hearing from them on those issues.
    Thank you very much.
    Chairman Specter. Thank you, Senator Cornyn.
    Senator DeWine, an opening statement?
    Senator DeWine. Mr. Chairman, I just thank you for holding 
this hearing, and I look forward to the testimony.
    Chairman Specter. Thank you very much.
    Assistant Attorney General Wan J. Kim became the holder of 
that position on November 9th of 2005. Born in South Korea, Mr. 
Kim is the first immigrant to serve as Assistant Attorney 
General of the Civil Rights Division and is the first Korean 
American ever to become an Assistant Attorney General, so you 
have two very distinguished firsts, Mr. Kim.
    He has experience in the Department before becoming the 
Assistant AG, having been the Deputy Assistant, spent most of 
his career at the Department of Justice, was in the Attorney 
General's Honors Program, was Assistant United States Attorney 
for the District of Columbia, served on the staff of Senator 
Hatch here, and was a law clerk to Senator Buckley; an honors 
graduate from both Johns Hopkins University and the University 
of Chicago Law School. He has served as an enlisted soldier and 
a rifle platoon leader in the Army Reserve.
    Thank you for joining us, Mr. Kim. Our practice is to 
allocate 5 minutes for statements and then 5-minute rounds for 
questions by the Senators on the panel. You may proceed.

  STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, CIVIL 
    RIGHTS DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Kim. Thank you very much, Mr. Chairman, and thank you 
for holding these hearings. It is my privilege to appear before 
you and before the other distinguished members of the 
Committee.
    It is my privilege to appear in this hearing on the modern 
enforcement of the Voting Rights Act. As you know, certain 
provisions of the Voting Rights Act are due to expire next 
year. The administration supports reauthorizing these 
provisions of the Voting Rights Act, as the President and the 
Attorney General have made clear. We also support the 
legislative intent of S. 2703 and H.R. 9 to overrule the 
Supreme Court's 2003 decisions in Georgia v. Ashcroft and the 
2000 decision in Reno v. Bossier Parish School Board.
    While the Department of Justice has not yet completed our 
review of this bill's language, we look forward to working with 
Congress to ensure that this legislation is consistent with 
these purposes.
    I am pleased to provide you with an overview of the Justice 
Department's enforcement of three important provisions of the 
Voting Rights Act: Section 5, which involves the Act's 
preclearance mechanism, and Sections 203 and 4(f)(4), which 
contain the Act's language-minority provisions. I am also 
pleased to provide you with an explanation of the Department's 
use of two other provisions of the Act--Sections 6 and 8--which 
pertain to Federal examiners and observers.
    Let me begin with Section 5. The Voting Section of the 
Civil Rights Division receives roughly 4,000 to 6,000 Section 5 
submissions annually, although each submission may contain 
numerous voting changes that each must be reviewed. Our 
function in evaluating Section 5 submissions is, in the words 
of the Supreme Court, ``to insure that no voting-procedure 
changes [are] made that would lead to a retrogression in the 
position of racial minorities with respect to their effective 
exercise of the electoral franchise.''
    Impressively, the outstanding career attorneys in our 
Voting Section undertake this often highly complex examination 
in a brief 60-day period of time, as is required under the 
statute. Employing this standard over the last 40 years, we 
have found retrogression in an extremely small number of cases. 
Since 1965, out of the 125,885 total Section 5 submissions 
received by the Department of Justice, the Attorney General has 
interposed an objection to 1,402. And in the last 10 years, 
there have been 92 objections. In other words, the overall 
objection rate since 1965 is only slightly above 1 percent 
while the annual objection rate since the mid-1990's has 
declined even more, now averaging less than two-tenths of a 
percent. This tiny objection rate reflects the overwhelming 
compliance with the Voting Rights Act by covered jurisdictions.
    In addition to our Section 5 enforcement efforts under this 
administration, the Justice Department has undertaken the most 
extensive Sections 203 and 4(f)(4) enforcement activities in 
its history. The initiative began immediately following the 
Census Bureau's 2002 determinations as to which jurisdictions 
are covered under Section 203. The Civil Rights Division not 
only mailed formal notices and detailed information on Section 
203 compliance to each of the 296 covered jurisdictions, but we 
also initiated face-to-face meetings with State and local 
officials and minority community members in the 80 newly 
covered jurisdictions to explain the law, to answer questions, 
and to foster the implementation of effective legal compliance 
programs.
    These efforts have borne abundant fruit. Since 2001, this 
administration has filed more language-minority cases under 
Sections 203 and 4(f)(4) than in the entire previous 26-year 
history of these provisions. The lawsuits filed in 2004 alone 
provided comprehensive language-minority programs to more 
citizens than all previous 203 and 4(f)(4) suits combined. Our 
lawsuits have significantly narrowed gaps in electoral 
participation. In Yakima County, Washington, for example, 
Hispanic voter registration went up by over 24 percent in less 
than 6 months after resolution of our Section 203 lawsuit. In 
San Diego County, California, Spanish and Filipino registration 
were up by over 21 percent, and Vietnamese registration was up 
over 37 percent, within 6 months following our enforcement 
efforts.
    Finally, the Department of Justice has taken full advantage 
of the Federal observer provisions of the Voting Rights Act. In 
2004, for example, the Civil Rights Division worked with the 
Office of Personnel Management to send nearly 1,500 observers 
to cover 55 elections in 30 jurisdictions in 14 different 
States. Additionally, in 2005, 640 Federal observers were sent 
to cover 22 elections in 17 jurisdictions in 10 different 
States.
    Let me say in conclusion that the Civil Rights Division has 
made the vigorous enforcement of voting rights a primary 
objective. The Department of Justice is proud of the role that 
it plays in enforcing the statute, and we look forward to 
working with Congress during these reauthorization hearings.
    At this point, I would like to submit the text of my 
prepared statement for the record, and I will be pleased to 
answer any questions that the members of the Committee may 
have.
    [The prepared statement of Mr. Kim appears as a submission 
for the record.]
    Chairman Specter. Well, thank you very much, Mr. Kim. 
Without objection, your full statement will be made a part of 
the record.
    As you know, the record basis has to include recent and 
continuing violations. Over the past 10 years, are you in a 
position to say how many jurisdictions have refused to comply 
with Department of Justice enforcement orders and court orders?
    Mr. Kim. Senator, it is my understanding that no 
jurisdiction has refused to comply with our determinations made 
under Section 5. It is the case, however, that some 
jurisdictions have failed to make preclearance submissions 
under Section 5, as is required by the statute, and in those 
jurisdictions we will followup by bringing appropriate 
remedies, if necessary.
    Chairman Specter. How many such cases are there where they 
do not comply with the provisions you just mentioned?
    Mr. Kim. Senator, I would have to get the detailed 
statistics to you, and I will make those statistics available--
    Chairman Specter. Would you make those available to us for 
the record so that we know the extent of that problem and also 
how current it is?
    Mr. Kim. Yes, sir.
    Chairman Specter. Can you give us some examples over the 
past 10 years of States committing unconstitutional voting 
discrimination?
    Mr. Kim. Yes, sir. Certainly with respect to some of our 
Section 203 lawsuits, we have found voters who have been denied 
other protections either by statute or by the Constitution. For 
example, in a recent lawsuit we brought against the city of 
Boston under Section 203 and Section 2 of the Voting Rights 
Act, we found instances where ballots presented to certain 
voters who did not understand English very well were taken from 
those voters and marked out against those voters' will. And 
certainly in instances in San Diego County, for example, we 
found examples where election officials would ask for 
additional information about citizenship from people who seemed 
to be Hispanic. And those kinds of violations are often found 
in the kinds of cases that we bring under the Voting Rights 
Act.
    Chairman Specter. Would you supply for the record the 
details or as much information as you have on unconstitutional 
behavior by a State or jurisdiction to give us as comprehensive 
a record as possible on this important question?
    Mr. Kim. Of course, Mr. Chairman. In fact, we have made 
available and submitted for the House record and we will make 
available and submit for the Senate record all of the objection 
letters that we have submitted under Section 5 in history, 
which number more than 2,000 pages. We will also make available 
all the lawsuits that we have brought in recent years that 
allege constitutional violations.
    Chairman Specter. Mr. Kim, as you know, Federal regulations 
require that jurisdictions covered under Section 203 provide 
bilingual materials to all voters or to develop ``an effective 
targeting system'' to identify ``persons who are likely to need 
them.'' Recently, the House Subcommittee on the Constitution 
found that an elected official from Orange County, California, 
claimed that the Department of Justice requires States to send 
bilingual materials to any voter with a Spanish-sounding 
surname. That has an overtone of racial profiling, assuming 
that anyone with a foreign-sounding surname cannot speak the 
language, regardless of how long they have lived here.
    Does the Department of Justice enforce such a policy? Why 
doesn't the Department of Justice simply require States to send 
bilingual ballots to those voters the census lists as needing 
assistance? Or is the census adequate to pinpoint the need for 
that kind of assistance?
    Mr. Kim. Mr. Chairman, to answer the first part of your 
question, no, the Department of Justice does not make such a 
requirement. The Department of Justice is charged with 
enforcing Congressional intent in Section 203, and we do so 
vigorously. And part of that intent is to make sure that people 
who need the bilingual provisions obtain them and no more than 
that. If we required the jurisdiction that was covered to 
provide bilingual materials to everyone in that jurisdiction, 
obviously that would be a burden that is not commensurate to 
the harm.
    The Census Bureau data only provides information with 
respect to the entire jurisdiction and does not break out those 
individuals in the jurisdiction who actually need the bilingual 
services. And so in each individual jurisdiction, the 
Department of Justice takes a comprehensive view of the facts 
and circumstances in that jurisdiction to determine the best 
method for obtaining compliance.
    Chairman Specter. Mr. Kim, I want to interrupt you because 
I have time for one more question. What are the key reasons, 
the best reasons in your mind about the need for the 
reauthorization of the Voting Rights Act? What currently is 
happening which leads you to believe the Act should be 
reauthorized?
    Mr. Kim. Well, Senator, as you know, the administration 
strongly supports reauthorization of the Voting Rights Act, and 
we have a proud history of enforcing the Voting Rights Act 
since its inception at the Department of Justice. The Act has a 
continuing vitality. We file objections under Section 5 every 
year. We have brought numerous lawsuits in the past 5 years to 
enforce the language-minority provisions, and these are the 
provisions that are due to expire, and we do believe that these 
provisions serve a continuing need.
    Chairman Specter. Thank you very much, Mr. Kim.
    Senator DeWine has graciously consented to chair the 
balance of the hearing, so at this point I turn the gavel over 
to Senator DeWine. Thank you.
    Senator DeWine [presiding]. Senator Kennedy?
    Senator Kennedy. Thank you very much.
    Could you just continue on your answer about Section 203? 
We had a situation in Boston, as you mentioned, and it was 
settled very expeditiously, and the people--the mayor feels 
that the interaction with the Department has been enormously 
constructive and positive. So it is one of those circumstances 
where those that were pointed out where there had been alleged 
kinds of problems benefited significantly from working with the 
Department.
    But besides the 203, in response to the Chairman's 
question, I mean, we have seen the growth of the terms of the 
Hispanic community and a number of different communities, so 
that Section 203 is going to be out there and applicable in 
places where I suppose we did not think were much of a problem, 
but we obviously have to watch these situations. But in Section 
5, if you could--you mentioned that you have been bringing 
cases. Maybe you could just expand on that briefly about what 
has been the record in the period of the last--I don't know. I 
guess you have been in there now for a period, but could you 
give us sort of a rundown of the recent history, say for 5 or 7 
years?
    Mr. Kim. Certainly, Senator. First of all, it cannot be 
overstated that the Voting Rights Act has widely been 
recognized as one of the most successful pieces of civil rights 
legislation ever passed by Congress, if not the most 
successful. It has, during its course of history, significantly 
narrowed gaps in electoral participation by all Americans, and 
that is certainly a proud history and one that we are proud to 
enforce.
    Over the history of the Voting Rights Act, the covered 
jurisdictions are required, of course, to submit for 
preclearance any changes in its voting procedures, and that 
submission by itself creates a deterrent effect. So I think it 
is important, when one thinks about Section 5 and preclearance, 
to recognize that the very fact of submission is an important 
detail that prevents retrogression and prevents harming 
minority voting strength and prevents back-sliding, the very 
types of evils that Congress sought to prevent in passing 
Section 5.
    And even with the submission procedures, it is true that 
the number of objections filed by the Department of Justice has 
declined in the past 10 years to approximately two-tenths of 1 
percent. The need for objections, however, is real, and we do 
make those objections every year. And so the fact of the matter 
is, in the past 5 years, we have raised approximately something 
shy of 50 objections. Stated differently, those are 50 cases 
that we have prevented in terms of allowing a voting change to 
take place that may have had a retrogressive effect or a 
retrogressive purpose. And we think that that is enormously 
important to the work of promoting the very goals that Congress 
sought to promote in the Voting Rights Act.
    Senator Kennedy. Explain to me a little bit the value of 
observers. How do you make the judgment when you are going to 
have observers? And how important have they been in these 
recent cases, recent elections?
    Mr. Kim. Well, Senator, we think that sending observers and 
monitors to help assist local election officials conduct the 
elections is enormously important because they help to prevent 
problems before there is a real problem, and they help to make 
sure that no one at the polls is denied access to the polls 
consistent with Federal law and constitutional law.
    The decision on when to appoint observers and monitors is 
one based upon the facts and circumstances on the ground with 
respect to any particular election.
    Senator Kennedy. Give us some examples about the extent, 
how many different sort of polling areas that you have 
provided--
    Mr. Kim. Well, Senator, those numbers are in my prepared 
statement, and certainly with respect to--in 2004, for example, 
the Presidential election, we sent out nearly 1,500 observers 
to monitor 55 elections in 30 jurisdictions in 14 States. That 
is in addition to Civil Rights and Department of Justice 
personnel--an additional 400 people to monitor 100 elections in 
80 jurisdictions in 27 different States. That was the most 
extensive observer and monitor coverage in history.
    Senator Kennedy. What do you anticipate in this election 
here in 2006?
    Mr. Kim. Senator, we have not reached firm numbers yet. 
Clearly, Presidential elections are different in terms of 
magnitude and scale, and we need to step up our enforcement 
efforts and our monitoring efforts commensurately. But, you 
know, the commitment that I have as the head of the Civil 
Rights Division is to make sure that whatever the need is, we 
will accommodate it.
    Senator Kennedy. Just finally, could you tell us--I 
understand the Department of Justice has offered assistance to 
jurisdictions on ways to reduce costs of compliance with 
Section 203. Could you describe for us some of the outreach the 
Department has done in this regard?
    Mr. Kim. Absolutely, Senator. One of the important things, 
I think, with Section 203 is communication and technical 
assistance because many jurisdictions who are covered do not 
realize exactly that they are covered, nor do they know how to 
comply with the Act in a cost-effective way. Our folks are 
experts in doing so, and we have made contact by mailing 
letters to every covered jurisdiction shortly after the Census 
Bureau made the determination in 2002, having face-to-face 
meetings, and under the facts and circumstances of each 
particular case, designing a targeting method to reach the 
voters to whom the provisions are directed in a manner that is 
cost-effective to the jurisdiction to ensure compliance.
    Senator Kennedy. My time is up. Thank you, Mr. Chairman.
    Mr. Kim. Thank you, Senator.
    Senator DeWine. Mr. Kim, thanks for joining us. You 
mentioned that the Department supports the efforts this bill is 
making to overturn the results of some recent Supreme Court 
jurisprudence, certainly including the case of Georgia v. 
Ashcroft. Could you share with us the practical effect of that 
case and how that has changed how you do business, how the 
Department investigates and prosecutes cases under the Voting 
Rights Act?
    Mr. Kim. Yes, Senator. Certainly, Georgia v. Ashcroft has 
changed the analysis that the United States employs when 
reviewing Section 5 submissions by covered jurisdictions. And, 
of course, the Government's position in Georgia v. Ashcroft was 
the one rejected by the Supreme Court and adopted by only four 
members of the Court.
    I will say at the outset, of course, that the Department of 
Justice will act pursuant to the laws passed by Congress as 
interpreted by the Supreme Court, and we have been faithful in 
our application of Georgia v. Ashcroft. That said, we do 
support what we understand the intent of S. 2703 and H.R. 9 to 
be in terms of overruling legislatively the Supreme Court's 
decision in Georgia v. Ashcroft.
    What Georgia v. Ashcroft did was adopt a totality of the 
circumstances approach to redistricting standards, and since 
Georgia v. Ashcroft was decided in 2003, we have not had 
occasion to review many redistricting submissions employing its 
standard. Clearly, a small proportion of redistricting happens 
after the decennial census. Most of it occurred and was 
evaluated prior to the standards enunciated by Georgia v. 
Ashcroft because, again, we obtain most of our redistricting 
submissions about 2 years after the census, so about 2002.
    We have tried to faithfully employ, and we have, I submit, 
faithfully employed the standard enunciated by Georgia v. 
Ashcroft, but the totality of the circumstances standard 
involves a much more nuanced approach to retrogression. It 
requires not only looking at minority-controlled districts, but 
also influence districts where minorities may not control the 
outcome of elections but influence the outcome of elections. 
And the totality of the circumstances approach is one that is 
in many respects more nuanced and more difficult to administer 
because it requires a greater look at everything that is going 
on rather than focused areas.
    Senator DeWine. You do not have a specific example you 
could cite for me?
    Mr. Kim. With respect to a problem caused by Georgia v. 
Ashcroft, Senator?
    Senator DeWine. Problem or a case where you could show me 
the actual difference in the application of the law.
    Mr. Kim. No, Senator, I do not--
    Senator DeWine. Pre-Georgia v. Ashcroft. In other words, 
compare and contrast how you would approach it. Or if you 
cannot do that, give me a hypothetical.
    Mr. Kim. Sure.
    Senator DeWine. Make up a hypothetical for me.
    Mr. Kim. Absolutely. Well, Senator, I mean, the facts of 
Georgia v. Ashcroft themselves would probably be the best 
hypothetical because that was a plan to which we objected, and 
that was a plan--
    Senator DeWine. What were the facts?
    Mr. Kim. Well, Senator, the facts were--and I am not going 
to do justice to the facts right now, but the facts generally 
were that there was a decrease in the number of minority 
citizens of voting age population in, I believe, three 
legislative districts in the State of Georgia. And the 
benchmark plan had approximately a 55- to 60-percent level of 
minority populations in those covered districts, and the plan 
that Georgia submitted under Section 5 reduced that minority 
population in, I believe, those three districts to closer to 50 
percent, making those districts much more of a toss-up.
    The United States interposed an objection to those 
districts, and I believe it was three, but do not quote me on 
that, and I will get back to you certainly with more specific 
and finely honed details.
    The Supreme Court ruled that that legislative judgment was 
appropriate under Section 5 of the Voting Rights Act and not 
retrogressive because the decreases of minority voting strength 
in those districts was compensated by increases in minority 
voting strength in other districts. Those districts where 
minority strength increased could not be characterized and were 
not characterized as majority-minority districts but 
sufficiently increased the minority voting strength in those 
districts so it transformed them into what was called influence 
districts. And based upon that totality of the circumstances, 
the Supreme Court ruled that under Section 5 that was a 
legitimate decision and choice for the States to make. And 
consistent with our previous practices prior to Georgia v. 
Ashcroft, we thought that that was retrogressive under pre-
Georgia v. Ashcroft law.
    Senator DeWine. Thank you very much.
    Senator Cornyn?
    Senator Cornyn. Mr. Kim, let me ask you, first of all, you 
said the record today in terms of the Voting Rights Act is one 
that demonstrates overwhelming compliance with the law. Is that 
correct?
    Mr. Kim. Yes, sir.
    Senator Cornyn. Let me ask you if you agree with this 
following statement: And today in the American South--in 1965, 
there were less than 100 elected black officials. Today there 
are several thousand. So there has been a transformation. 
Georgia is a different State. It is a different political 
climate. It is a different political environment. It is a 
different world that we live in, really. The State is not the 
same State it was. It is not the same State it was in 1965 or 
in 1975 or even 1980 or 1990. We have changed. We have come a 
great distance. It is not just in Georgia but in the American 
South. I think people are preparing to lay down the burden of 
race.
    Do you agree with that statement?
    Mr. Kim. Senator, I have no reason to disagree with that 
statement, and I certainly agree that the Voting Rights Act has 
effected a great change, and America has changed much over the 
past 40 years.
    Senator Cornyn. That statement is part of sworn deposition 
testimony, as you know--you probably recognize it--in Georgia 
v. Ashcroft by Representative John Lewis.
    I want to ask, in light of this record of overwhelming 
compliance, first of all, I would ask, Mr. Chairman, to make a 
part of the record at the end of my questions and Mr. Kim's 
answers a document that I believe is part of the DOJ testimony 
entitled ``Administrative Review of Voting Changes from 1965 to 
2006.''
    Senator DeWine. Without objection.
    Senator Cornyn. Mr. Kim, this document appears to 
demonstrate that, first of all, as you pointed out, that the 
number of objections to preclearance requests by those 
jurisdictions covered by Section 5 have dropped dramatically. I 
think you mentioned two-tenths of 1 percent?
    Mr. Kim. Yes, sir. That is correct.
    Senator Cornyn. And, in fact, in 2006, according to this 
document, there was one out of 4,094 submitted; out of 4,734 in 
2006, there was one; the previous year, 5,211, and there were 
three objections. Is that indicative of what you have testified 
to earlier, a record of overwhelming compliance obviating the 
necessity of the Department objecting to those plans that are 
submitted for preclearance?
    Mr. Kim. Yes, Senator. There is almost near universal 
compliance with the Voting Rights Act, in Section 5 of the 
Voting Rights Act specifically.
    Senator Cornyn. And as you know, the preclearance 
requirements under Section 5 are regarded by some of the 
political subdivisions that are covered as expensive and time-
consuming and to some extent an onerous requirement. They cover 
only, I guess, nine States and parts of other States, but the 
vast majority of the United States is not covered at all by 
those preclearance requirements.
    Could you cite for the Committee empirical evidence that 
would indicate that the outcomes, in terms of protection of 
minority voting rights, are significantly different in those 
sections that are covered versus those that are not covered?
    Mr. Kim. Senator, I am afraid I do not have a record with 
respect to non-covered jurisdictions in the context of Section 
5 because, of course, we do not receive submissions under 
Section 5 from non-covered jurisdictions. Certainly you are 
correct to note that the Voting Rights Act has a trigger 
formula for coverage, which turns on various factors that 
existed in 1964, 1968, and 1972, leading to approximately 17 
States that are covered either entirely or in part.
    I would also note that there is a bailout mechanism 
employed in the Act that allows covered jurisdictions to bail 
out of coverage under Section 5.
    Senator Cornyn. You are certainly correct the bailout 
provisions exist, but we are being asked to reauthorize 
expiring provisions, and so I would submit that is a slightly 
different issue. But when I ask for the empirical evidence and 
you say that you do not have it for those areas that are not 
covered, is that because you are of the opinion that such 
empirical evidence does not exist or you just do not happen to 
have it?
    Mr. Kim. Senator, I just do not have the evidence. I mean, 
certainly I have statistics with regard to the number of 
submissions that we receive, the number of submissions that we 
evaluate, and the number of submissions that we raise 
objections to under Section 5. But that data only exists 
because of history and because of Congress and the laws that it 
has passed with respect to the covered jurisdictions.
    Senator Cornyn. Would you agree with me that that is an 
important question for Congress to consider in determining how 
to go about reauthorizing the Voting Rights Act, particularly 
the preclearance requirements, whether, in fact, that Federal 
intervention into the practices of local and State political 
subdivisions covered by the preclearance actually produces 
better outcomes in those areas than it would under the Voting 
Rights Act generally?
    Mr. Kim. Senator, certainly the administration supports 
reauthorization of the Voting Rights Act, and it is Congress' 
role, and I think duty in many respects, to make sure that it 
is a policy decision that is consistent with the goals of 
Congress and the facts on the ground. And I think that a wide-
ranging inquiry is something that Congress has always 
undertaken, and I know that the record is still open. I know 
that these hearings are still ongoing, and certainly we will 
act at the Department of Justice consistent with what Congress 
legislates.
    Senator Cornyn. Thank you.
    Senator DeWine. Senator Kennedy?
    Senator Kennedy. Just a question to followup on this. Could 
you relate then--Section 2, which covers the country--how that 
would relate to these areas that are not covered under Section 
5, wouldn't that still be available in those jurisdictions?
    Mr. Kim. Yes, Senator. Section 2 has nationwide 
application. It always has had nationwide application. It does 
not expire, and we certainly enforce the provisions of Section 
2 where the cases present themselves.
    Senator Kennedy. Is it your sense from looking at Section 
2, in looking at these other areas that are not covered that 
the Senator mentions, is there anything you want to tell us 
about whether there are Section 2 cases in those areas? Are 
there a good number in some areas? Do you form any opinion 
about the number of Section 2 cases, that maybe there should be 
greater coverage?
    Mr. Kim. Senator, I can give you some information with 
regard to the number of Section 2 cases that we have brought in 
the past 10 years or so. I will say that with respect to the 
Section 2 cases the Department of Justice has brought in the 
past 10 years, more of them have been brought in non-covered 
jurisdictions than covered jurisdictions, which suggests many 
things, but it certainly could suggest that the preclearance 
mechanisms in Section 5 do have an effect in the covered 
jurisdictions in tamping down abuses of the Voting Rights Act.
    Senator Kennedy. I think if you can provide, you know, just 
some information on that, it would be helpful.
    Mr. Kim. We would be happy to do so, Senator.
    Senator Kennedy. Thank you very much.
    Thank you, Mr. Chairman.
    Senator DeWine. Senator Hatch?
    Senator Hatch. Well, Mr. Kim, we are so proud to have you 
back here again. We appreciate the work you are doing down 
there. Sorry I have not been able to get here before now, but I 
just want everybody to know that I have considered the Voting 
Rights Act the most important civil rights bill in history, and 
there are a lot of important bills. So we are very concerned 
about making sure that we follow through and do what is right 
here. But I appreciate you being here.
    Is there anybody else who wants to question?
    Senator DeWine. It is down to you, Senator.
    Senator Hatch. Well, then we are going to let you go. How 
is that?
    [Laughter.]
    Mr. Kim. Thank you, Senator Hatch. It is always good to see 
you.
    Senator Hatch. Well, thank you. Good to see you. We are 
proud of you.
    Senator DeWine. Mr. Kim, thank you very much. We appreciate 
your testimony and look forward to continuing to work with you.
    Mr. Kim. Thank you, Mr. Chairman.
    Senator Cornyn. Mr. Chairman I have a letter written by the 
Department of Justice Office of Legislative Affairs dated April 
12, 2006, to Hon. F. James Sensenbrenner, Chairman of the 
Committee on the Judiciary. This letter speaks for itself, but 
it addresses the Department's response to Chairman 
Sensenbrenner's request for those cases where the Department 
has been either admonished or been required to pay attorney's 
fees in connection with Section 5 of the Voting Rights Act. I 
would ask unanimous consent that it be made part of the record.
    Senator DeWine. That will be made a part of the record.
    Senator Cornyn. Thank you.
    Senator DeWine. Let me invite our second panel to start 
coming up right now, and I will begin to introduce all of you.
    Robert McDuff is a civil rights and criminal defense 
attorney practicing in Jackson, Mississippi. He is currently 
Vice Chair of the Board of Directors of the Mississippi Center 
for Justice and serves on the Board of Lawyers' Committee for 
Civil Rights Under Law. Prior to opening his own practice, in 
1992 he was a faculty member of the University of Mississippi 
Law School.
    Gregory Coleman is a partner in the Litigation Department. 
He has an appellate litigation practice in a variety of areas 
and has argued and won four cases before the U.S. Supreme 
Court. He previously served as the Solicitor General for the 
State of Texas from 1999 to the year 2001.
    Natalie Landreth is a staff attorney for the Native 
American Rights Fund. Ms. Landreth has worked with the Native 
American Rights Fund since July 2003 and currently practices 
entirely in the area of Federal and State American Indian and 
Alaska Native Law. Most recently, she authored a report 
entitled ``Voting Rights in Alaska 1982-2006.'' Prior to 
joining the Native American Rights Fund, she worked in the 
first Office of Tribal Justice in the United States Department 
of Justice.
    Frank Strickland is a partner in the Atlanta law firm of 
Strickland Brockington Lewis and a regular speaker on the topic 
of election law. During the 1990's, he served as redistricting 
counsel to the Georgia Republican Party and represented two 
voters in Jones v. Miller, the 1992 case arising from Georgia's 
1991 redistricting. He has been the attorney on a number of 
other high-profile election cases, as well.
    Juan Cartagena is a civil rights attorney who serves as a 
general counsel at the Community Service Society of New York, 
where he litigates voting rights cases on behalf of poor 
communities. He has held previous positions with the Puerto 
Rican Legal Defense and Education Fund and was the Commonwealth 
of Puerto Rico's Department of Puerto Rican Community Affairs. 
Since 1991, he has represented Latino and African-American 
communities in voting rights litigation in a number of States, 
including Pennsylvania, New York, Illinois, New Jersey, and New 
Hampshire. He also currently serves as co-chair of the New York 
Voting Rights Consortium, a collection of major legal defense 
funds that protects the voting rights of racial and language 
minorities.
    We welcome all of you here today. We will start on my 
right. Mr. Cartagena, thank you for joining us. You are first.

STATEMENT OF JUAN CARTAGENA, GENERAL COUNSEL, COMMUNITY SERVICE 
                  SOCIETY, NEW YORK, NEW YORK

    Mr. Cartagena. Thank you, Mr. Chairman, members of the 
Committee. Thank you for the invitation to appear before this 
distinguished Committee and testify on S. 2703, the Voting 
Rights Act Reauthorization and Amendments Act of 2006. In 
particular, I want to focus on the provisions that provide for 
language assistance for American citizens who speak English as 
a second language. I have been a voting rights attorney since 
1981 who has used the promises of equal opportunity and full 
political access established in the VRA to assist racial and 
language minorities in a number of States.
    The Community Service Society, where I work, is an 
independent, nonprofit organization that for more than 160 
years has engaged in social science research, advocacy, policy 
analysis, direct service, and volunteerism to address the 
problems of poverty and strengthen community life for all. 
Since 1989, we have used the Voting Rights Act and other legal 
norms to benefit these most marginalized communities by 
ensuring full and fair representation, especially of African-
American and Latino voters.
    I will limit my remarks this morning in light of previous 
work that I have submitted to the record on the reauthorization 
debate before the House Subcommittee on the Constitution as it 
considered the reauthorization of the Voting Rights Act. I have 
attached those documents to my statement as appendices. These 
include the testimony I gave in November, which highlighted the 
reauthorization of Section 203 of the Voting Rights Act in New 
York City as well as in New Jersey, with a special emphasis on 
the voting rights of Puerto Rican voters; a report that I 
drafted called ``Voting Rights in New York 1982-2006'' for the 
Leadership Conference on Civil Rights, which summarizes the 
state of compliance with the three expiring provisions of the 
VRA in New York; and an article I drafted for the National 
Black Law Journal at Columbia Law School, ``Latinos and Section 
5: Beyond Black and White,'' which addresses important issues 
for Puerto Rican voters under Section 4(e).
    I just want to emphasize a few points for you.
    One, we applaud the bipartisan efforts that this Congress 
has used to address the critical issues of political 
participation for racial and language minorities. The VRA has 
consistently received bipartisan support since its inception 
and its amendments, and we welcome the manner in which these 
important debates have been held.
    Two, the right to vote, the very right that is 
``preservative of all rights,'' is just too important a right 
to delay, impede, or otherwise fail to make fully and 
meaningfully available to American citizens who speak English 
as a second language. Regardless of the concerns that some 
opponents of the VRARA may have about the primacy of English in 
our country, democracy is too precious and voting is too 
fundamental to condition on full mastery of English for 
American citizens in certain areas of the country who have yet 
to master English. In saying this, we echo the U.S. Supreme 
Court in Katzenbach v. Morgan, which upheld the language 
assistance provisions of Section 4(e) for Puerto Rican voters 
in the original Act of 1965 as a valid exercise of 
Congressional enforcement powers under the 14th and 15th 
Amendments by noting that Congress may have questioned at that 
time ``whether the denial of a right deemed so precious and 
fundamental in our society was a necessary or appropriate means 
of encouraging persons to learn English, or of furthering the 
goal of an intelligent exercise of the franchise.''
    Three, we cannot emphasize enough that the rights we are 
advocating for today this morning are the rights of citizens of 
this country to full and fair access to the franchise. With the 
equally important and pressing matters before the Senate 
regarding immigration policy, we cannot conflate these issues. 
The Voting Rights Act Reauthorization and Amendments Act, as 
currently proposed, addresses the rights of American citizens 
who speak English as a second language. Recent research by the 
Arizona State University has documented that three-quarters of 
all voters who depend on language assistance are native-born. 
Section 203 of the Act was created to address concerns of 
access to the ballot and under significant educational 
disparities as highlighted by higher than average illiteracy 
rates for certain language minorities in the U.S. More severe 
forms of exclusion for language minority citizens led to the 
adoption of Section 4(f)(4) in 1975. Both provisions still 
operate today to benefit native-born citizens. Puerto Rican 
voters would be a case in point: All of them are U.S. citizens 
by operation of law, significant numbers of them are either 
monolingual in Spanish on the island or because of educational 
disparities in the U.S. have still not mastered English 
proficiently here, and circular migration patterns between both 
of those points--the U.S. and Puerto Rico--are still present 
today.
    Four, the major factors which led to Sections 203 and 
4(f)(4) are still present today for Latino citizens. 
Educational Attainment still lags far behind white or black 
counterparts. Illiteracy rates are far higher than national 
averages; 75 percent, compared to 18 percent nationwide, speak 
a language other than English at home, and Latino registration 
rates are lower than either black or white registration rates 
nationally.
    Finally, Section 203 is self-maintaining. It adjusts itself 
depending on changing demographic patterns, even more so with 
the amendments in the proposed Act for using ACS data in 5-year 
cycles, and contains a bailout provision that is hinged on 
improving illiteracy rates for these language minority groups. 
All of it demonstrates, consistent with Katzenbach v. Morgan, 
that it is a proper exercise of Congressional authority in 
furtherance of Congress' enforcement powers under the 14th and 
15th Amendments where Congressional power, I would submit, is 
at its zenith, even under the current case law of the U.S. 
Supreme Court.
    I will gladly accept any questions at the appropriate time. 
Thank you very much.
    [The prepared statement of Mr. Cartagena appears as 
submission for the record.]
    Senator DeWine. Thank you very much.
    Mr. Strickland?

STATEMENT OF FRANK B. STRICKLAND, STRICKLAND BROCKINGTON LEWIS, 
                     LLP, ATLANTA, GEORGIA

    Mr. Strickland. Good morning, Mr. Chairman and members of 
the Committee, and thank you for the opportunity to provide 
testimony regarding the important issue of the renewal of 
certain provisions of the Voting Rights Act. Although I have 
been involved in a number of redistricting cases, as you 
mentioned in my resume, I want to talk to you today in a 
different capacity, and I am not here in an official capacity, 
but I am one of five members of the Fulton County Board of 
Registration and Elections, which is a bipartisan board in 
Fulton County which has general supervision of all voter 
registration and election processes in Georgia's largest 
county.
    First, I would raise a question: Should Georgia continue to 
be a covered jurisdiction? The election results in Georgia over 
the years, not only in Fulton County but statewide, suggest 
that the answer is no. In 1969, there were 30 African-American 
office holders, 14 of whom served in the legislature. By 2001, 
this number had increased to 611. And the makeup of Georgia's 
Congressional delegation is even more revealing. Four of 13 
Members of Congress are African-American, and that share of the 
Georgia House seats, 31 percent, exceeds the African-American 
population in the State. And at the State level, there is a 
significant number of African-American elected officials, 9 of 
34, including our Attorney General, and members of the Supreme 
Court and court of appeals.
    The experience in Fulton County is similar. The Board of 
Commissioners of Fulton County has a 4-3 African-American 
majority. The mayor of Atlanta has been an African-American 
since 1972. The Fulton County legislative delegation to the 
Georgia General Assembly includes a majority of African-
American representatives.
    In addition, an examination of the people who run the 
elections in Fulton County is illuminating. Approximately 95 
percent of the Election Department staff is African-American. 
In primary and general elections, more than half of the paid 
poll workers in the 356 voting precincts in Fulton County are 
African-American.
    Some might suggest that rather than trying to escape 
coverage in renewal legislation, Georgia, and particularly 
Fulton County, should pursue the bailout mechanism under 
Section 4. That section allows a jurisdiction to bail out of 
the preclearance requirements of the Act if it has had no 
objections interposed by the Justice Department for a period of 
10 years; in other words, it has to have a perfect record. That 
might appear to be the obvious choice for Fulton County, but 
there is a catch. Here is how it works. Because there are 11 
cities within Fulton County, if any one of those cities has had 
a single objection interposed by the Department during the 10-
year period, Fulton County is automatically prevented from 
seeking to bail out of the preclearance requirements, even if 
its own 10-year record is flawless.
    A recent example that stopped Fulton County from pursuing 
the bailout provision resulted from the failure of one of those 
cities to obtain timely preclearance of one or more annexations 
into the city in an area where the African-American population 
is probably less than 5 percent. This means that Fulton County 
has to start over and achieve a new 10-year record of 
perfection in its own preclearance procedures and hope that all 
the cities in the county will also achieve perfection. There 
has got to be a better way to do that, and I see no reason why 
Fulton County's perfect record should not stand alone and that 
the time period for compliance should not be shortened.
    Even if these jurisdictions remain covered, Congress should 
still examine what changes should remain covered. As another 
example, the Fulton County Election Board spends considerable 
staff and board time reviewing and approving simple changes in 
the location of a polling place from one public building to 
another. In many instances, the polling place is in a church 
and is being moved to another church because the current 
location is no longer available for use as a polling place.
    Similarly, the simple task of setting a date for a special 
election must also be precleared, despite the fact that the 
requirements for special elections are a matter of Georgia law 
which cannot be varied by any action of the Election Board.
    I think I am about to run out of time, so I will conclude 
by saying thank you for your consideration of my comments, and 
I would ask that my written testimony be made a part of the 
record and I be allowed to revise and extend my remarks where 
appropriate.
    Thank you very much.
    Senator DeWine. It will be made a part of the record.
    [The prepared statement of Mr. Strickland appears as 
submission for the record.]
    Senator DeWine. Ms. Landreth?

   STATEMENT OF NATALIE A. LANDRETH, STAFF ATTORNEY, NATIVE 
            AMERICAN RIGHTS FUND, ANCHORAGE, ALASKA

    Ms. Landreth. Good morning. I would like to thank the 
Committee for allowing me to speak today. It is a true honor to 
be here. My name is Natalie Landreth, and I am a staff attorney 
at the Native American Rights Fund in Anchorage. I am an 
enrolled member of the Chickasaw Nation of Oklahoma and a 
descendent of the Imatobby family, who survived the Trail of 
Tears.
    I am here to discuss the impact of the Voting Rights Act in 
Alaska and the need for reauthorization and enforcement of the 
Act. Alaska is subject to Section 4(f)(4) and 203--the minority 
language provisions--as well as Section 5, the preclearance 
requirement. Under the auspices of the Lawyers Committee for 
Civil Rights and the Native American Rights Fund, I prepared a 
report detailing the Alaska Native experience under the Act. 
The evidence gathered in preparation of the report shows that 
there is still a very real need for minority language 
assistance and Federal oversight in the form of preclearance. 
To our surprise, however, we also discovered, one, that, with 
all due respect to the State of Alaska, it has been out of 
compliance with the VRA for more than 30 years and, two, that 
the Act has largely not been enforced in Alaska.
    First, however, I must give you a small picture of the 
Alaska Native population to enable you to understand the 
reality on the ground. It is naturally very different than the 
previous two scenarios described. Alaska has the single largest 
indigenous population in the United States at 19 percent. Most 
of these people reside in rural Alaska, which is largely 
inaccessible by road; all supplies must be flown in. It 
consists of about 200 Native villages with no services, hotels, 
roads of any kind. Only 70 to 75 percent of these homes even 
have sanitation systems, and the rest use well water. They live 
off subsistence, literally fishing and hunting off the land. In 
places like this, a ballot box often has to move up and down 
the river on Election Day in order to hit all of the polling 
places, and you have half an hour to vote. In November, this is 
no mean feat. On Election Day in 2004, 24 of these villages did 
not even have polling places.
    Today, an Alaska Native is likely to be unemployed--fewer 
than 50 percent have jobs--and when he does get a job, he will 
earn just 50 to 60 percent of what non-Natives earn in Alaska. 
As a result, they are 3 times more likely than other Alaskans 
to be poor. They also have the lowest level of education. At 
the time the VRA was extended to Alaska in 1975, only 2,400 
Natives had graduated high school at all. This is incredibly 
important because this is now your elder population that are 
having a very hard time understanding the English ballot.
    Seventy-five percent of all Alaska Natives have now 
graduated from high school. There have been gains, but at the 
same time, our dropout rate is actually increasing. The 2005 
standardized test results reveal that 80.5 percent of the new 
Alaska Native voters, graduating seniors, did not pass reading 
comprehension in English--80.5 percent.
    This enduring but disadvantaged population speaks about 20 
different indigenous languages. Yet it is a well-known fact 
that Alaska does not provide ballots or election materials in 
any languages other than English and Tagalog out in Kodiak 
Island. Yet all of Alaska is covered by 4(f)(4), and 14 census 
areas are also covered by 203. The Native population still 
meets or exceeds all the population and illiteracy benchmarks 
set forth in the VRA. Yet Alaska provides nothing more than 
intermittent oral assistance upon request.
    In addition to this clear noncompliance with the letter of 
the law, we know there is a real need for language assistance. 
In the Bethel census area, a Yup'ik-speaking region, 21 percent 
of the population is limited English proficient, and there are 
17 villages in which Yup'ik is the only language that is 
spoken. It is one of the oldest written languages in North 
America. Signs are Yup'ik, school is taught in Yup'ik, and the 
Pledge of Allegiance is recited in Yup'ik. They consider it 
their first language.
    We now know also that the English ballot is interfering 
with the exercise of the right to vote. For example, in 1995, 
18 non-English-speaking Inupiat sued the city of Barrow 
claiming that the absence of written materials in Inupiaq and 
the absence of a standardized oral translation led them to vote 
the wrong way. A class of elders wanted to vote to institute an 
alcohol ban to protect the children being born in the village, 
and because they did not understand a single-sentence ballot 
measure in English, they accidentally voted to repeal that 
measure.
    Alaska is also subject to preclearance, and there has only 
been one objection in Alaska's history. But it is hard to 
overstate the importance of that objection.
    While the Alaska Supreme Court approved the redistricting 
plan put together after the 1990 Census, the astute staff of 
the Department of Justice caught a retrogressive district 
called District 36 that showed evidence in racially polarized 
voting that actually reduced the Native voting-age population. 
What the court had not objected to and what would have been 
permissible under Alaska was only prevented by the intervention 
of the DOJ. Without it, Alaska may have been subject to 
retrogressive policies throughout the 1990's until the next 
census.
    I see that I have, unfortunately, run out of time, so I 
would like to--I apologize. I would like to submit the entire 
text of my comments for the record, if I may.
    [The prepared statement of Ms. Landreth appears as 
submissions for the record.]
    Senator DeWine. Thank you very much.
    Mr. Coleman?

  STATEMENT OF GREGORY S. COLEMAN, WEIL GOTSHALL AND MANGES, 
                         AUSTIN, TEXAS

    Mr. Coleman. Thank you, Mr. Chairman. I appreciate the 
opportunity to come and visit with the Committee today. As I 
noted in my written remarks, I would like to address the issue 
of the reauthorization of the preclearance provisions of 
Section 5. I believe that preclearance should not be 
reauthorized. I believe that it is unnecessary, unfair and that 
it would probably be unconstitutional.
    With respect to the necessity of Section 5, there is a lot 
of data that has been put before the Congress, both in the 
hearings on the House side and now on this side. But that data, 
in my view, does not amount to a justification for the 
reauthorization of Section 5. It is largely anecdotal. It does 
not establish a need for preclearance provisions at all, and it 
certainly does not establish a need for preclearance provisions 
in the States only and political subdivisions that have 
historically been subjected to preclearance. This is not 1965. 
This is not 1975.
    The bill that has been introduced notes that the original 
problems that the Voting Rights Act sought to remedy have in 
fact largely been remedied and moves the focus toward, I think, 
what it calls secondary barriers. There are no findings in the 
record, and there cannot be any findings that those secondary 
barriers, to the extent that they really do exist, exist only 
in the jurisdictions that were pegged to be covered under 
Section 5 in the 1960's and 1970's.
    Most of the significant litigation in the Voting Rights Act 
area in the past 10 years has been Shaw-based, suggesting a 
need to get rid of preclearance. An analogy that one might make 
is another very successful statute and that is the Americans 
with Disabilities Act. Enforcement of that Act has been very 
successful, and yet, Congress did not require every company, 
every city, every State to submit its building plans to the 
Department of Justice for review before they have been 
approved, but has relied on enforcement mechanisms. Those 
enforcement mechanisms have been extremely successful, and as 
noted by those who have testified today, as well as in prior 
hearings, Section 2 and other provisions of the Voting Rights 
Act have been extremely successful, and they remain a very 
potent force to remedy any voting rights issues that may exist 
today or that may come up in the future.
    There is, as noted today by Mr. Kim, more Section 2 
litigation outside the covered jurisdictions. Perhaps Congress 
might want to consider freeing all the covered jurisdictions 
from Section 5 and putting all of the remaining States and 
political subdivisions under coverage for a period of time, so 
that they can remedy the problems that they appear to have.
    It is also unfair--I note in my written remarks that the 
preclearance provisions, while very effective in the early 
years of the Voting Rights Act, have become largely rote and 
ineffective. In the tens of thousands of submissions in recent 
years, the objection rate has moved to where it has become 
infinitesimally small. Even among those objections, there are 
many that are withdrawn or that are simply not good objections, 
and ultimately shown to be so. But there is no case today when 
you have a team of lawyers that are essentially costing States 
and political subdivisions within those States tens or hundreds 
of millions of dollars in the preparation of Section 5 
preclearance submissions, when you have an objection rate that 
is in the single digits per 10,000 submissions. That type of 
enforcement, I think, is costly and no longer effective.
    The coverage formula, too, is not changing, and yet none of 
the evidence that is before the Congress contains any 
connection to the coverage formulas that the Congress initially 
put in place.
    Finally, I would like to just say a word that the Supreme 
Court has increasingly recognized the federalism concerns that 
Section 5 implicates, and there is a strong possibility that if 
reauthorized, that Section 5 would very shortly be struck down 
as an unconstitutional exercise of Congress's power.
    I am available for questions at the Committee's bidding.
    [The prepared statement of Mr. Coleman appears as 
submission for the record.]
    Senator Hatch [presiding]. Thank you.
    Mr. McDuff?

 STATEMENT OF ROBERT B. MCDUFF, ATTORNEY, JACKSON, MISSISSIPPI

    Mr. McDuff. Thank you, Mr. Chairman. As a native of 
Mississippi, who lives there and has spent most of his life 
there, and as a lawyer who has represented black voters in a 
number of voting rights cases in Mississippi and elsewhere, I 
want to urge you to renew Section 5, and I want to talk a 
little bit about the experience in Mississippi.
    After the Civil War and the passage of the 14th and 15th 
Amendments, some progress was made in the racial integration of 
public life in the south, but when the Federal Government lost 
interest after Reconstruction, it was all nullified by actions 
like those taken at the Mississippi Constitutional Convention 
of 1890, and the south was plunged into decades of horrific 
racial discrimination. It was only after Congress passed the 
1964 Civil Rights Act and the 1965 Voting Rights Act that the 
promise of those amendments began to be restored. But in 
Mississippi, as in some other States, Government officials 
continued to try to nullify and minimize the vote of black 
citizens, leading the Department of Justice to object to voting 
changes in Mississippi 169 times since the passage of the Act, 
112 of those since the Act was reauthorized in 1982.
    Now, Section 5 has led to a great deal of progress in 
Mississippi and elsewhere. In absolute numbers, Mississippi has 
the highest number of black elected officials among any of the 
50 States. But despite the fact that it also has the highest 
percentage of black population among the 50 States, no black 
citizen has been elected to office in a statewide election in 
Mississippi in the 20th century, and at every level of 
government, viewed from a statewide perspective, the percentage 
of black officeholders is lower than the black voting-age 
population percentage in the State, and the percentage of white 
officeholders is higher than the percentage of white voting-age 
population, and we continue to see disturbing signs of the 
destructive role that race plays in public life.
    In the second most recent legislative redistricting process 
in Mississippi, the one in 1991 and 1992, the legislature 
defeated a proposed redistricting plan that would have 
increased the number of black majority districts with 
legislators repeatedly referring to it on the floor as the 
``black plan,'' and some privately calling it the ``nigger 
plan,'' even though it was supported by a biracial coalition of 
20 black legislators and 38 whites.
    The legislature passed a plan that created fewer majority 
black districts than this proposal, but fortunately, the 
Department of Justice objected to it on racial purpose grounds, 
citing as part of the evidence these racial characterizations.
    In 2001, the all-white city council of Kilmichael, 
Mississippi, canceled city elections 3 weeks before they were 
to be held, after new data showed the town's voting population 
had become majority black and after, for the first time in the 
city's history, a number of black citizens qualified to run for 
office. Fortunately, the Department of Justice objected to that 
cancellation.
    In 2003, in the most recent statewide election in 
Mississippi, a 46-year-old black candidate for State treasurer, 
who had served as the State's Director of Finance 
Administration, who had a wealth of public finance and private 
sector experience, was defeated in an election marked by 
racially polarized voting by a 29-year-old white candidate, 
whose only experience was that he had worked as a mid-level 
bank employee, demonstrating that it is still difficult for a 
black person, no matter how qualified, to be elected to 
statewide office in Mississippi.
    In 2004, a sitting white trial court judge, running against 
the only black supreme court justice in the State, used the 
slogan ``one of us'' when referring to himself, implying that 
there is a them, and his opponent is one of them, a throwback 
to a slogan condemned as a racial appeal 20 years earlier by a 
three-judge Federal District Court in Mississippi, when it was 
used by a white congressional candidate, who defeated a black 
candidate trying to become Mississippi's first black Member of 
Congress in the 20th century.
    And finally, in 2005, a three-judge Federal District Court 
had to enjoin the city of McComb, Mississippi, from changing 
the qualification requirements and removing a black city 
council member without seeking preclearance of the change.
    These examples show that, unfortunately, some of those in 
power still fall back on old ways and old prejudices. William 
Faulkner said ``the past isn't dead, it isn't dead, it isn't 
even past.'' And certainly that is not always true. Some things 
have certainly changed and some of the past is in the past. But 
we have to recognize the echoes and the vestiges that still 
exist, and if the protections of section 5 are withdrawn, I 
think we will see some elected officials changing the rules and 
changing the districts to take advantage of the racially 
polarized voting that still exists--this is not anecdotal, this 
is systemic--to diminish the racial integration that has been 
achieved in Government.
    And so I join with many Mississippians, black and white, to 
urge you to renew the Voting Rights Act and help us build on 
the progress that has already been made.
    Thank you.
    [The prepared statement of Mr. McDuff appears as submission 
for the record.]
    Senator Hatch. Thank you.
    Senator Cornyn, you were here before me. Would you care to 
start?
    Senator Cornyn. Thank you, Mr. Chairman. I have a few 
questions.
    I think at the outset of these hearings, members of the 
Committee on both sides of the aisle stated one of our goals is 
to pass a reauthorization of the Voting Rights Act that would 
be sustained, and congressional will sustained, in the face of 
any litigation that might reasonably be successful to overturn 
it. So it is for that reason I want to focus some of my 
comments on the preclearance requirements, and ask Mr. Coleman 
to start with, what has the Supreme Court said about how they 
will regard Section 5 preclearance requirements? In other 
words, what sort of burden is there on Congress to demonstrate 
the necessity for those preclearance requirements, which are 
admittedly intrusive, into local electoral affairs in those 
jurisdictions covered? What sort of burden is required on 
Congress?
    Mr. Coleman. Well, the Supreme Court, in South Carolina v. 
Katzenbach, one of the earliest voting rights cases, upheld 
Section 5, and the Court did it so again on the Rome 
litigation.
    In more recent years, in Monterey County v. Lopez, members 
of the Court began to recognize more the federalism concerns. 
Justice Thomas himself indicated that there was a strong 
likelihood that it was becoming unconstitutional.
    Many scholars have spoken on this issue and have looked to 
the case of City of Boerne v. Flores, where the Court said, in 
the 14th Amendment context, that Congress, in acting, under 
Section 5 of the 14th Amendment, needs to ensure that its 
legislation is congruent and proportional to the problems that 
it seeks to fix. The Court has never specifically said that 
that would apply to Section 2 of the 15th Amendment, although 
in the early litigation over the Voting Rights Act in the 
Katzenbach v. Morgan case, the Court did rely strongly on the 
14th Amendment.
    In other courts, cases have suggested that the 14th and 
15th Amendments would be considered together.
    So the congruence and proportionality analysis that the 
Court set out suggests that there has to be a strong 
evidentiary link between the data that is presented and a very 
real and cognizable systemic violation of constitutional rights 
or threatened violation of those rights. I do not believe that 
the record before Congress today suggests that there continues 
to be a systemic violation or a threatened systemic violation 
of those rights.
    Senator Cornyn. Mr. Coleman, when looking at the empirical 
evidence that does exist--and I hope we get that evidence in 
front of us so we can take a hard look at it and understand it 
better--are we talking about an all or nothing proposition, in 
other words, or will it be on the basis of individual political 
subdivisions that that analysis would have to be made, whether 
there is sufficient justification based on the evidence of 
maintaining the preclearance requirements in Section 5?
    Mr. Coleman. Congress could, if it desired, make specific 
findings that relate to individual States or individual 
political subdivisions. Thus far, to my knowledge, there has 
been no attempt to do that. There has simply been a proposal to 
reauthorize the coverage as it exists and has existed since the 
1970's.
    Senator Cornyn. Mr. Strickland, you talked about the 
intrusiveness and the burdens on political subdivisions when it 
comes to the preclearance requirements, and then also about the 
bailout provision. Some might say, well, you have a bailout 
provision, so why shouldn't we just maintain the preclearance 
requirements? Those seem to me to be apples and oranges. But 
could you talk about the financial and other burdens on 
political subdivisions to comply with the preclearance 
requirements?
    Mr. Strickland. Well, the example that I gave in my 
testimony was a pretty simple process of changing a polling 
place from one location to another. It is essentially a 
ministerial function. It is not normally a public building. But 
what is required as a practical matter is election department 
staff has to produce a map of that area, and it has to locate 
the old polling place, the new polling place, and the election 
board will just get a sheaf of papers about--suppose they are 
changing a dozen or 15 or 20 polling places--we would just get 
a sheaf of papers that show Point A and Point B. There is never 
an issue about it, and to my knowledge--I served on the 
election board in the `70's and I am now serving again--I do 
not remember a single instance when there has ever been a 
problem with any of these, what I call ministerial functions, 
in relocating a polling place from one place to another.
    So it seems to be an unnecessary consumption of time, 
energy and expense by the election department staff in 
complying with that aspect of preclearance.
    Senator Cornyn. If I can ask just one final question of any 
member of the panel. Are any of you familiar with any studies 
or empirical evidence that indicates that there are significant 
differences and outcomes, in other words, of minority voting 
participation in those jurisdictions that are covered by the 
preclearance requirements of Section 5 versus those that are 
not?
    Mr. McDuff. Senator, I am certainly not aware of any. I do 
not know that anyone has undertaken that sort of study, and I 
am not quite sure how one would do it. What I think we do know 
is that the formula that was created by Congress in 1965 and 
has been modified several times, has been repeatedly upheld by 
the Supreme Court as a constitutional exercise.
    I do think that a record is being built, both in the House 
and here, about the problems that still exist in the 
jurisdictions that are presently covered.
    Now, one, I guess, could attempt to build a similar record 
in other jurisdictions that are not covered. I do not know if 
anyone has tried to do that, but I think the more you expand 
the scope of Section 5, the more of a record you need to build, 
and the greater risk you take that it might be held 
unconstitutional.
    Mr. Coleman. Very briefly, Senator. I believe the Gaddie-
Bullock studies that are in the record very systematically show 
that there are, in fact, no differences.
    Senator Cornyn. Anyone else?
    Mr. Cartagena. Yes. If I may, Senator. The effectiveness of 
Section 5 cannot only be measured by the number of objections 
issued by the Department of Justice. There is a significant 
deterrent effect, a prophylactic effect upon these 
jurisdictions that are covered by Section 5. In many ways, we 
really cannot speak about Section 5 without also speaking about 
what are called more information request letters, MIRs, that 
are issued by the Department of Justice to numerous 
jurisdictions. MIRs get responded to. They basically are 
simply, do you have more information that allows us to make a 
determination? Some States withdraw the changes. Some States 
supersede them. Some States ignore it. In all those three cases 
I just cited, it demonstrates the effectiveness, as well, of 
Section 5 objections above and beyond the number of objections 
issued.
    I cited a study by Fraga and Ocampo out of Stanford 
University in my materials appended to my statement, in which 
they have researched the MIRs that were issued in 1989 through 
2004. And their study demonstrates that it doubles the amount 
of objections--excuse me--submissions that would have otherwise 
received a denial of preclearance just because many 
jurisdictions withdraw the request upon receiving a more 
information request letter from the Department of Justice.
    Ms. Landreth. Senator, I would like to add one thing to 
respond to some of the comments that were made that would 
hopefully also help answer your question. One of the aspects 
that has been discussed is the burdensome requirement of having 
to submit paperwork for preclearance for simple things such as 
a polling change. In Alaska, that is an incredibly big deal 
because, if you move a polling station in a community that does 
not have cars and operates by snow machines or walking in 10-
below weather in November, you may actually disenfranchise an 
entire community.
    We have had some of that situation in Anchorage, where they 
move polling places out of very poor places in Anchorage, and 
most of the folks could not get time off of work to go to the 
new polling station, so there are examples of even something 
like that that another jurisdiction with adequate 
transportation and adequate systems established would be very 
ministerial and seem unimportant. In Alaska, it is actually an 
incredibly important aspect of preclearance.
    Senator Hatch. Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman.
    Mr. McDuff, I had watched some of this before I came over 
here. You heard from the hearing yesterday, and others have 
said, that Section 5 is so successful we do not need it any 
longer. You practice in a covered jurisdiction. I would assume 
you have seen some significant progress in minority 
participation over the decades. If we did away with Section 5, 
if that is no longer operational, does that really provide any 
kind of deterrent, or would it be your position that we should 
keep Section 5 as a deterrent?
    Mr. McDuff. Yes. It does provide a tremendous deterrent. I 
cannot tell you how many times I have talked to legislators, 
city council members, lawyers in the State Attorney General's 
Office, or lawyers for localities who have really now 
internalized sort of the goals of Section 5, and who, when 
voting changes are being made, assess the impact on all groups, 
all racial groups, and reach out to all groups, to try to 
determine if a solution can be developed that satisfies 
everyone's concerns in light of the very deep racial fault line 
that still exists in the south and in other parts of the 
country due to the history of discrimination.
    We have a persistence, I know in Mississippi, and I think 
in a number of other places, of racially polarized voting. I 
gave an example a minute ago that clearly the best qualified 
candidate for State treasurer in Mississippi lost as a result 
of racially polarized voting. That is a systemic problem that 
still exists.
    And the problem is that if you withdraw the protection of 
Section 5, two things can happen. No. 1, the sorts of officials 
who canceled the elections in Kilmichael, Mississippi, when it 
looked like black candidates would be elected--those sorts of 
people will take advantage of the absence of those protections 
and will change the rules and will change the district lines.
    Senator Leahy. Conversely, is it a protection for those 
people who want to do what is right?
    Mr. McDuff. Oh, yeah, exactly, because everyone knows that 
the law has to be satisfied and that retrogression is illegal, 
and it has become a part of people's thinking and of the 
process of local government to make sure that doesn't happen. I 
think this is--
    Senator Leahy. So you would not change the existing 
coverage formula requiring preclearance of changes?
    Mr. McDuff. No, I wouldn't. I think it has worked very 
successfully, and I think there is still a need for it.
    Senator Leahy. Thank you.
    Ms. Landreth, I listened to what you were saying about 
Alaska. A majority of the actions brought to enforce Section 
203 have been in the last 3 years, 4 years; am I correct?
    Ms. Landreth. In general we have had no enforcement actions 
under 203 in Alaska.
    Senator Leahy. Was there insufficient enforcement of 
Section 203 previously?
    Ms. Landreth. It has never been complied with in Alaska, 
and it has never been enforced in Alaska, so, yes, in my 
opinion, there is insufficient enforcement of Section 203.
    Senator Leahy. So you wouldn't do away with it?
    Ms. Landreth. Absolutely not. I think Alaska is the perfect 
example of a climate where people are discussing immigration, 
and I have seen in some articles, confusing the Voting Rights 
Act and the bilingual ballot with the Voting Rights Act. And 
the fact is that these are indigenous American citizens, who 
don't understand the English ballot to such a degree--and here 
is a perfect example--they didn't understand to such a degree 
that they actually voted for an English-only law in Alaska, 
that was then subsequently struck down by our Supreme Court 
because they had no written translation, and the poll workers 
simply told them, ``Just vote yes.''
    Senator Leahy. I will go to you, Mr. Cartagena. How will 
the bill provision--before we get into the language--how about 
the bill's provision permitting recovery of expert witness 
fees? How does that allow the enforcement of the Voting Rights 
Act language assistance provisions?
    Mr. Cartagena. It is a very important point, Senator.
    Section 203 enforcement actions really have not, from what 
I can see in the case law, have not come to judgment. Many 
times these actions are settled well before judgment.
    But we have--and the cases that I have worked on indicated 
to me to need either historians or other experts to allow us to 
present a full picture of both Section 203 noncompliance and 
potentially Section 2 violations. In those kind of situations, 
recovery of expert attorney fees--excuse me--expert fees in a 
successful action that does come to judgment, would be a very, 
very important tool to use. We are, as you can imagine, private 
attorneys general. The Department of Justice has done 
incredible work under Section 203 enforcement in the last 
several years. But there is so much work to do, and there is 
just too much noncompliance.
    And the state of noncompliance is what it is, as I have 
indicated in the report, particularly like in New York and New 
Jersey, that we don't have the person power to get to all of 
these jurisdictions. The ability to collect expert fees would 
be an incredible assistance in that regard.
    Senator Leahy. And you would want to maintain the 
preclearance provisions of--
    Mr. Cartagena. Yes, I do, and I think the preclearance 
provisions, Senator, are important on various levels. And I 
have indicated the deterrence value already to the panel. I 
also would indicate--and this is where I differ with Mr. 
Coleman--Section 5 is a model of the constitutional exercise of 
both the 14th and 15th Amendment power of the Congress, in 
large part because it is time limited, it is geographically 
focused, and because it has bailout provisions. All of those 
elements, I mean, where Mr. Coleman cited the Lopez case, I 
think I cited on my last footnote of my testimony, on page 285, 
that the Supreme Court noted that in short the Voting Rights 
Act, by its nature, intrudes on State sovereignty. The 15th 
Amendment permits this intrusion, however, and a holding today 
adds nothing of constitutional moment to the burdens the Act 
imposes, close quote. And it said that when it talked favorably 
about the constitutionality of Section 5.
    Senator Leahy. My time has expired. I have other questions, 
especially of Mr. Coleman and others, and I will submit those 
for the record.
    I understand Senator Biden is on his way over here.
    Senator Cornyn [presiding]. Thank you, Senator Leahy.
    I just have a very few more questions myself. Just out of 
curiosity, Mr. McDuff, you indicated that clearly the best 
candidate for State treasurer lost in Mississippi. That was an 
African-American candidate, I take it. What is the percentage 
of black voters in Mississippi?
    Mr. McDuff. The black--
    Senator Cornyn. At the time of that election.
    Mr. McDuff. The black voting age population, under the 2000 
Census, is 33 percent.
    Senator Cornyn. Was that candidate a Democrat, or 
Republican, insurance Independent?
    Mr. McDuff. He was a Democrat. He did lose. There was 
another white Democrat running for an open seat on a down-
ticket race, the Attorney General, who won with 66 percent of 
the vote. So this was not a situation where Republicans swept 
all statewide seats during the election.
    Senator Cornyn. That was Michael Moore?
    Mr. McDuff. It was actually his successor, Jim Hood, right.
    Senator Cornyn. His successor, all right.
    Mr. McDuff. Mike Moore had retired at the end of his prior 
term.
    Senator Cornyn. OK. Now, the Governor and the two United 
States Senators from Mississippi are Republicans, are they not?
    Mr. McDuff. That's true.
    Senator Cornyn. I just wanted to probe a little bit about 
your confidence level that this candidate lost because he was 
an African-American, when 31 percent of the voting population 
is African-American, and when other high-level statewide 
officials elected are Republicans, how can you state with such 
confidence that that demonstrates the nature of polarized 
voting, or that this candidate lost because he was an African-
American?
    Mr. McDuff. The polarized voting is clear from some 
statistics I have set out in my written testimony. Of the 25 
majority black counties of Mississippi, Mr. Anderson, the 46-
year-old black candidate who had this history of public finance 
and private sector experience, won 24 of the 25. Of the 
majority white counties, he won 18 and lost 39. It was very 
clear that he was treated differently in white areas as 
compared to black areas. Again, it was not a Republican sweep. 
In fact, most of the statewide offices were won by Democrats 
that year, in 2003. The Governor was Republican. I believe 
every other--the Lieutenant Governor was Republican. I believe 
every other down-ticket race was won by a Democrat.
    But here is what is important, to me. The treasurer's 
office and the Attorney General's office were both open seats. 
In the Attorney General's race, the white candidate won with 
nearly two-thirds of the vote, in a down-ticket ballot with an 
open seat. The black candidate, 46-years-old with a wealth of 
experience, lost to a 29-year-old white candidate who had very 
little experience. In the Attorney General's race, the white 
Democrat won. In the treasurer's race the white Democrat lost. 
I have no doubt in my mind that if the two treasurer candidates 
had been of the same race, Gary Anderson, the 46-year-old 
Democrat with a wealth of experience, would have won over the 
29-year-old candidate who had no relevant experience.
    Senator Cornyn. I do not question the sincerity of your 
statement. I just would note from my experience--and I think 
shared by other people who run for statewide office--the 
elections are usually multifactorial and not--it is hard, even 
though sometimes people tend to point to a single cause, it is 
hard I think to justify it.
    Mr. McDuff. And I don't disagree with the multiplicity 
factors--
    Senator Cornyn. Since my time is limited--
    Mr. McDuff. I'm sorry.
    Senator Cornyn.--let me, please, go to ask one other 
question. This has to do with the legal standard. Mr. Cartagena 
made I think a good point talking about the legal standard that 
has been applied, and Mr. Coleman has talked about that too, 
for maintaining the preclearance requirements in those 
jurisdictions that are covered. But I would like to know--and 
maybe we will start with you, Mr. Coleman--in terms of the 
ultimate protection for minority voting rights, what additional 
protections, if any, are provided by the preclearance 
requirements under Section 5? In other words, if a lawsuit is 
filed by the Department of Justice for violating the Voting 
Rights Act, will they look to the standard vote in Section 2 
and Section 5, or is there somehow, are minorities 
disadvantaged in those areas where the preclearance requirement 
no longer exists?
    Mr. Coleman. A Section 5 lawsuit would largely simply 
determine whether he should have precleared something. If the 
U.S. is filing a lawsuit alleging a violation of voting rights, 
it would ordinarily be brought under a substantive provision, 
Section 2 or Section 203 that has been talked about. So that 
the Section 5 litigation tends to be really very little of the 
law suits given the Department's lack of recent activity in the 
Section 5 area. So those lawsuits would generally be under the 
substantive provisions. The Department of Justice has been 
active in those areas. Private lawyers have been very active in 
those areas. In my view, Section 5 adds very little to the mix.
    Ms. Landreth has talked at length about violations that 
continue to exist in Alaska. My understanding is the Department 
of Justice hasn't interposed an objection in Alaska since 1994 
or something like that. There are bad people, but by and large, 
the covered jurisdictions are in compliance as much as or more 
than jurisdictions who are not covered under the provision. At 
this day and age there is simply no added protection or use 
that comes from the continuation of Section 5.
    Senator Cornyn. Ms. Landreth, I thought you gave a good 
sort of an example of how different parts of the country 
perhaps should be regarded differently based on geography and 
history and experience, as opposed to what Congress is 
especially good at as the one-size-fits-all, but I thought the 
point you made was an interesting one.
    If, as Mr. Coleman says, that there have not been 
objections interposed in Alaska by the Justice Department, can 
you explain the lack of private litigation or other litigation 
involving the sorts of violations that you have alleged?
    Ms. Landreth. I am glad that you asked that question, 
because that is what sticks out like a sore thumb to us as 
well. I have been practicing in Alaska for only a few years. 
There has only been one case brought about Section 203 
violations. It was settled, so there is no written decision. It 
is only available at the clerk's office. But it is indicative 
of other situations that have happened. In a situation where 
almost half the children are born with fetal alcohol spectrum 
disorder, the elders tried to pass a ballot measure to ban 
alcohol in the village, and then the ``young 'uns'', who didn't 
want them to do that, would translate the ballot for them, 
conveniently telling them to vote against it, and, of course, 
defeat their own ability to participate in their own democracy.
    And one of the interesting aspects of that--it is 
unfortunate there is no written decision--but we have found, 
when I tell other folks in Alaska this story, other villages 
have said, that happened to us too. Kasigluk, Akiachak, Akiak, 
all those communities had the same issue, and people have not 
brought enforcement. I think--
    Senator Cornyn. Why not?
    Ms. Landreth. That is a very good question. I wish that I 
had the answer to that. One part of the answer to that question 
may be that although I won't claim that our study that we have 
recently done is comprehensive, it is the first of its kind to 
actually study what Alaska is doing versus what it was supposed 
to have been doing. I think this is the first time it has been 
widely known that Alaska has not complied with these aspects of 
the Act.
    Senator Cornyn. And you say widely known. Is that because 
of the reports that you have recited to us here?
    Ms. Landreth. Yes. I believe our 50 or so page report has 
been distributed fairly widely, both within the State 
Government, to our representatives here in Congress, and to 
communities in rural Alaska, who--several of those that I 
vetted it through to make sure I was portraying their 
communities accurately, had no changes to make.
    Senator Cornyn. Thank you.
    I think the presentations have been very helpful to the 
Committee. Obviously, I am the only one left here, but that is 
not for lack of interest I assure you. The Senators and the 
Senate, usually we have to multi-task and have a lot of 
conflicting hearings and requirements, including floor 
activity.
    What I would do is to say thanks to each of you for your 
testimony. Of course, your written testimony is going to be 
made a part of the record in addition to your oral comments.
    Customarily we leave the record open for a period of time, 
for 1 week in this case, for members of the Committee who were 
not able to come to ask written questions, or of those who were 
able to come to followup with written questions. So I would 
just ask you when you get those, if you get those, please 
respond to those as promptly as you can so we can have a 
complete record for our further consideration.
    Thank you very much, and the hearing is now adjourned.
    [Whereupon, at 11:07 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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