[Senate Hearing 109-569]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 109-569

                   THE CONTINUING NEED FOR SECTION 5 
                             PRE-CLEARANCE

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 16, 2006

                               __________

                          Serial No. J-109-77

                               __________

         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

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    10
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
    prepared statement...........................................   194
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   196

                               WITNESSES

Arrington, Theodore S., Chair, Department of Political Science, 
  University of North Carolina-Charlotte, Charlotte, North 
  Carolina.......................................................     8
Earls, Anita S., Director of Advocacy, University of North 
  Carolina Law School Center for Civil Rights, Chapel Hill, North 
  Carolina.......................................................     3
Gaddie, Ronald Keith, Professor of Political Science, University 
  of Oklahoma, Norman, Oklahoma..................................     6
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of 
  Public Interest Law, and Associate Dean for Research and 
  Academics, Stanford University School of Law, Stanford, 
  California.....................................................     4
Pildes, Richard H., Sudler Family Professor of Constitutional 
  Law, New York University School of Law, New York, New York.....    10

                         QUESTIONS AND ANSWERS

Responses of Theodore S. Arrington to questions submitted by 
  Senators Cornyn, Coburn, Leahy, Kennedy, and Kohl..............    24
Responses of Anita S. Earls to questions submitted by Senators 
  Coburn, Cornyn, Leahy, and Kohl................................    41
Responses of Ronald Keith Gaddie to questions submitted by 
  Senators Kohl, Cornyn, and Coburn..............................    72
Responses of Pamela S. Karlan to questions submitted by Senators 
  Leahy, Kennedy, Kohl, Cornyn, and Coburn.......................    90
Responses of Richard H. Pildes to questions submitted by Senators 
  Specter, Cornyn, Coburn, and Kohl..............................   105

                       SUBMISSIONS FOR THE RECORD

Arrington, Theodore S., Chair, Department of Political Science, 
  University of North Carolina-Charlotte, Charlotte, North 
  Carolina, prepared statement...................................   127
Earls, Anita S., Director of Advocacy, University of North 
  Carolina Law School Center for Civil Rights, Chapel Hill, North 
  Carolina, prepared statement...................................   140
Gaddie, Ronald Keith, Professor of Political Science, University 
  of Oklahoma, Norman, Oklahoma, prepared statement..............   153
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of 
  Public Interest Law, and Associate Dean for Research and 
  Academics, Stanford University School of Law, Stanford, 
  California, prepared statement.................................   174
Pildes, Richard H., Sudler Family Professor of Constitutional 
  Law, New York University School of Law, New York, New York, 
  prepared statement.............................................   198

 
            THE CONTINUING NEED FOR SECTION 5 PRE-CLEARANCE

                              ----------                              


                         TUESDAY, MAY 16, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:32 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Edward M. 
Kennedy presiding.
    Present: Senators Kennedy and Feingold.

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

    Senator Kennedy. The Committee will come to order.
    If you are seeing a Democrat up here, you may be in 
disbelief, but it is the real thing.
    [Laughter.]
    Senator Kennedy. I had forgotten what it feels like, but it 
is beginning to feel pretty good. Eternally hopeful in terms of 
the future.
    Our Chairman, Senator Specter, had a previous meeting at 
8:30 this morning on our immigration bill, and we have a judge 
that is going to be voted on at 10 o'clock, so he is 
necessarily detained over on the floor, as I imagine, in 
dealing with that Ninth Circuit. So we will move ahead with 
this morning's hearing. It is enormously important, and we are 
very grateful--I am--for him to have this hearing today. I will 
make a brief opening comment. I will include his statement in 
the record, introduce the witnesses, and then we will get 
started.
    I commend our Chairman for calling this hearing on the key 
question of whether Section 5 is still needed today. President 
Johnson said these words in his message to Congress in the 1965 
voting rights bill: ``In our system, the first right and the 
most vital of all of our rights is the right to vote.'' 
Jefferson described the elective franchise as ``the ark of our 
safety. Unless the right to vote be secured and undenied, all 
other rights are insecure and subject to denial for all of our 
citizens.''
    Section 5 of the Voting Rights Act has been one of the most 
effective defenses of that right. For over 40 years, this 
provision has helped to sustain the progress that was made by 
those who risked their lives and livelihoods in the civil 
rights movement. It is an essential protection against back-
sliding by jurisdictions with a history of discrimination in 
voting. It prevents these jurisdictions from changing their 
voting rules without first showing that the proposed changes 
have neither a discriminatory purpose nor effect.
    As the Supreme Court stated in upholding Section 5 in South 
Carolina v. Katzenbach, ``After enduring nearly a century of 
systematic resistance to the 15th Amendment, Congress might 
well decide to shift the advantage of time and inertia from the 
perpetrators of the evils to its victims.''
    The issue of whether Section 5 is still needed today has 
come up many times in these hearings, and although we bring 
different perspectives to this issue, each member, the 
Committee wants to ensure that any legislation passed in this 
area gets it right. We are mindful that the Supreme Court will 
carefully review the legislation we are considering under the 
standards it has applied in reviewing other civil rights laws 
in the past. In recent years, the Court struck down a key part 
of the AIDS discrimination in employment because it found the 
Congressional Record insufficient, Board of Regents of Florida 
v. Kimel. It also struck down one part of the Americans with 
Disabilities Act, University of Alabama v. Garrett. The Court 
based its decision in both these cases on the sufficiency of 
evidence in the hearing record. Both of those legislations were 
out of my Committee, the Human Resource Committee, and we 
thought we had met the standard in terms of the record in both 
of those areas. But this we want to make sure we are going to 
meet that requirement.
    Congress has a special role in enforcing the 15th Amendment 
that prohibits racial and ethnic discrimination in voting. As 
the Supreme Court has noted, we have broader leeway in this 
area than in others because of the close link of the need to 
prevent discrimination in voting and the special goals of the 
14th and 15th Amendments. In 1999, in Lopez v. Monterey, which 
was decided after the Court made clear the need for a specific 
record to support legislation under the 14th and 15th 
Amendments, the Court acknowledged that the Voting Rights Act 
by its nature intrudes on State sovereignty but noted that the 
15th Amendment permits this intrusion to remedy discrimination 
in voting.
    Despite having greater latitude in this area than in 
others, there is no question we must make a clear record on any 
legislation to extend the expiring provisions of the Act. So I 
thank the panel in advance for their help in evaluating this.
    We have a very distinguished panel, and we want to thank 
them. This is enormously important. These are very 
distinguished individuals who have spent an enormous amount of 
time in this area and developed a great expertise, and we are 
very grateful to them for being with us today: Anita Earls is 
the Director of Advocacy, University of North Carolina Center 
for Civil Rights, Chapel Hill; Pamela Karlan, the Kenneth and 
Harle Montgomery Professor of Public Interest Law and Associate 
Dean for Research and Academics, Stanford School of Law; Keith 
Gaddie, Professor, Department of Political Science, University 
of Oklahoma; Theodore Arrington, Chair, Department of Political 
Science, University of North Carolina; and Richard Pildes, the 
Sudler Family Professor of Law at NYU.
    [The prepared statement of Senator Kennedy appears as a 
submission for the record.]
    So, we thank all of you. We will start in that order. We 
would prefer if you can keep your remarks to 5 minutes so we 
can get some questions in before the break for the vote on the 
floor. Thank you.

 STATEMENT OF ANITA S. EARLS, DIRECTOR OF ADVOCACY, UNIVERSITY 
 OF NORTH CAROLINA LAW SCHOOL CENTER FOR CIVIL RIGHTS, CHAPEL 
                      HILL, NORTH CAROLINA

    Ms. Earls. Thank you, Mr. Chairman. I am honored to have 
this opportunity to testify concerning the continuing need for 
Section 5 pre-clearance. Throughout the Section 5 covered 
jurisdictions, minority voters continue to face intentional and 
unconstitutional barriers to full and equal participation in 
the political process. There are at least five main sources of 
evidence documenting continued intentional discrimination in 
voting in the covered jurisdictions. I will list these sources 
and then summarize what they show.
    The sources of evidence are: one, Section 5 objection 
letters; two, unsuccessful Section 5 declaratory judgment 
actions; three, reported opinions in Section 2 litigation; 
four, Section 2 cases resolved by consent decrees or unreported 
opinions; and, five, Section 5 submissions that are withdrawn 
by the submitting jurisdiction.
    First, Section 5 objections since 1982 demonstrate that 
purposeful discrimination continues to occur in matters 
affecting voting. In the nine States that are substantially 
covered, there were a total of 682 objections from 1982 to 
2004. Many of these objections included evidence that the 
change was motivated by a discriminatory purpose. One study of 
these objections reports that in the 1990's, fully 151 
objections were based on purpose alone; another 67 objections 
relied on a combination of purpose and retrogression; and 41 on 
both purpose and the need to comply with Section 2. Thus, the 
intent prong was involved in a remarkable 74 percent of all 
objections in that decade.
    The numerous objection letters from every covered 
jurisdiction document an extensive record of local officials 
seeking to change dates of election, change election district 
boundaries, change city boundaries, and make other changes in 
election procedures out of a desire to suppress, diminish, or 
negate the effect of minority voters.
    The first appendix to my testimony summarizes the number of 
objection letters issued by the Department of Justice from the 
nine States since 1982, and the second appendix summarizes the 
legal grounds for those objections. It is important to note 
that many of the objections since 1982 have been to statewide 
changes, essentially affecting all of the voters in the State.
    Second, declaratory judgment actions where jurisdictions 
were denied pre-clearance are evidence of discriminatory voting 
laws. Since 1982, there have been a total of 25 cases in which 
a three-judge panel considered the proposed change on the 
merits and denied pre-clearance.
    Third are judicial findings of intentional discrimination 
in litigation brought under Section 2. Unfortunately, many of 
these findings are in unreported decisions. Indeed, the 
discrepancy between the number of reported opinions finding 
Section 2 violations and the total number of successful Section 
2 cases is huge. In the nine States that are substantially 
covered by Section 5, since 1982 there have been 66 reported 
cases finding a violation of Section 2 and 587 unreported 
cases. Thus, any review of reported cases along seriously 
understates the findings.
    Nevertheless, while limited to only reported cases of 
published opinions, Katz's study concluded that 24 lawsuits 
since 1982 identified more than 100 instances of intentionally 
discriminatory conduct in voting. Eight of these 24 lawsuits 
were in jurisdictions covered by Section 5; 14 were in non-
covered jurisdictions.
    Many cases involving allegations of unconstitutional 
discrimination are resolved on the more narrow statutory 
grounds because courts always avoid constitutional questions if 
at all possible. Similarly, frequently there are allegations of 
unconstitutional conduct in litigation under Section 2 that is 
resolved by a consent decree. While defendants in such cases 
often must admit liability, typically they are not willing to 
admit to unconstitutional conduct. Thus, the fact that there 
have been so many Section 2 cases resolved in favor of 
plaintiffs is also relevant evidence that unconstitutional 
discrimination has occurred.
    Fifth, Section 5 submissions withdrawn by the submitting 
jurisdiction before the Department of Justice has had a chance 
to issue its determination are further evidence of 
discrimination. From 1982 to 2004, 501 proposed changes 
affecting voting were withdrawn by jurisdictions after receipt 
of a ``more information'' letter. In these instances Section 5 
review resulted in the abandonment of potentially 
discriminatory changes. Section 5 has opened the door for 
minority political participation, but the gains are recent and 
fragile.
    Levels of registration of minority voters do not begin to 
tell the complete story. Congress and the Supreme Court have 
long recognized that the Voting Rights Act is intended to 
guarantee that minority voters get a ballot and have that 
ballot counted equally. Renewal of Section 5 is essential to 
protect that guarantee.
    [The prepared statement of Ms. Earls appears as a 
submission for the record.]
    Senator Kennedy. Thank you very much.
    Professor Karlan?

  STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE MONTGOMERY 
   PROFESSOR OF PUBLIC INTEREST LAW, AND ASSOCIATE DEAN FOR 
  RESEARCH AND ACADEMICS, STANFORD UNIVERSITY SCHOOL OF LAW, 
                      STANFORD, CALIFORNIA

    Ms. Karlan. Thank you very much, Mr. Chairman, and thank 
you for the opportunity to testify today. You have my written 
remarks, and I want to highlight in my oral testimony today 
three points that come out of them.
    The first is I know that you have heard from lots of 
witnesses about the Boerne line of cases, and as I explained in 
my written testimony, I think that the most relevant cases for 
our purposes here are Tennessee v. Lane and Nevada v. Hibbs 
because they recognize that Congress's power is at its apogee 
when it is dealing with fundamental rights or where it is 
dealing with suspect or semi-suspect classifications, and both 
of those are true of the Voting Rights Act. The Supreme Court 
has recognized that voting is a fundamental right, and it has 
recognized that race discrimination is subject to the highest 
form of scrutiny.
    What I think people have not discussed with you perhaps as 
much as they ought to is the two other sources that come out of 
the Constitution and the Supreme Court's recent cases that 
suggest that your power is at its apogee in dealing with the 
Voting Rights Act. The first of these is the Elections Clause--
Article I, Section 4 of the Constitution--which the Supreme 
Court has recognized in post-Boerne cases, including Cook v. 
Gralike and U.S. Term Limits v. Thornton, as giving Congress 
absolutely plenary power over any election in which Federal 
officials are selected. And the Court has made clear in Foster 
v. Love that this includes protecting the right to register, 
protecting the right to vote, protecting the methods of 
election and the like.
    And so when you are dealing with elections at which Federal 
officials are being selected or registration practices that 
deal with where Federal officials are being selected, Congress 
has more power and there is no federalism concern on the other 
side. The Supreme Court has rejected the idea that the Tenth 
Amendment has any role to play there.
    Finally, in Vieth v. Jubelier--
    Senator Kennedy. Just on that point, I guess in your 
statement you talk about a mixed election, too. Could you 
just--
    Ms. Karlan. Yes, any election at which any Federal 
officials is covered. It does not matter that there are also 
State officials on the ballot, and I talk there a little bit 
about the criminal prosecution cases as ones where an 
uncontested House race is on the ballot and someone is 
prosecuted for vote fraud connected with a sheriff's race or 
the like.
    Finally, on this point, in Vieth v. Jubelier, Justice 
Scalia, writing for a plurality of the Court, recognized that 
there are cases where there is a 14th Amendment violation that 
the courts cannot alone deal with because there is not a 
manageable judicial standard. And he points to figuring out 
what a fair and effective process of representation is there as 
something that Article I, Section 4, gives you the power to 
deal with even if the Court can't. And I think that is quite 
relevant to the Georgia v. Ashcroft fix.
    My second point--so my first point is your power is at its 
apogee here. My second point is this case, unlike all of the 
previous Boerne line of cases that have come before the Court, 
deals with a renewal of an act that is already in place, and 
this has important consequences of two kinds. Let me give an 
analogy and then let me talk about the consequences.
    The analogy is if you have a really bad infection and you 
go to the doctor, they give you a bunch of pills, and they tell 
you, ``Do not stop taking these pills the minute you feel 
better. Go through the entire course of treatment because, 
otherwise, the disease will come back in a more resistant 
form.'' And the Voting Rights Act is strong medicine, but it 
needs to finish its course of treatment, and that has not yet 
happened for reasons that you have heard from other witnesses.
    Now, some people have pointed to the fact that the number 
of objections has gone down over time, and they say, well, this 
shows that there is no necessity for the Act. To the contrary. 
If the Act worked perfectly, there would be no objections, 
because if the Act worked perfectly, local- and State-level 
officials would be deterred from proposing changes that they 
cannot show have neither a discriminatory purpose nor a 
discriminatory effect.
    I know from my own experience doing compliance in 
California, dealing with covered jurisdictions there, that the 
Voting Rights Act has a huge deterrent effect, and it has a 
huge effect in telling jurisdictions that the concerns of 
racial minorities should not be at the bottom of the list.
    The third point I want to point to is about the evidentiary 
record in front of you. Some people have said that effects test 
cases are irrelevant to what is going on here. I want to give 
you two reasons why that is untrue.
    The first comes out of the hearings and the legislative 
history of the 1982 amendments in which Congress explained one 
of the reasons for the results test in Section 2 is to avoid 
the difficult problem of having to call people racists in order 
to solve the exclusionary of minorities from the political 
process. So when courts decide cases on effects test reasons, 
they don't reach the question whether there is also a 
discriminatory purpose. But let me tell you from my own 
experience that if we had to show discriminatory purpose in 
lots of these cases, we could do it. But it would be damaging 
to the political system for minority voters who are seeking 
inclusion to call the officials they are then going to have to 
deal with racists in the future. And, therefore, I think the 
effects evidence is quite relevant to you.
    I thank you very much for listening and look forward to 
questions.
    [The prepared statement of Ms. Karlan appears as a 
submission for the record.]
    Senator Kennedy. Professor Gaddie?

   STATEMENT OF RONALD KEITH GADDIE, PROFESSOR OF POLITICAL 
       SCIENCE, UNIVERSITY OF OKLAHOMA, NORMAN, OKLAHOMA

    Mr. Gaddie. Mr. Chairman, my thanks for the invitation to 
appear today. My written testimony deals mainly with the 
summary of analysis performed by myself and my colleague, 
Charles Bullock, at the University of Georgia funded by the 
American Enterprise Institute. This set of studies is an effort 
to document progress, or lack of progress, in voting rights in 
States covered by Section 5 of the Voting Rights Act.
    To that end, in my oral statement what I would like to do 
is illuminate and highlight in summary fashion the findings of 
those reports and also point out some areas of concern with 
regard to what a renewed Section 5 should look like. No one can 
deny that there is a continuing need for Section 5 of the 
Voting Rights Act. The question that arises is: In what form 
should Section 5 appear? What should it be applied? To that 
end, what I hope to do is to illuminate these questions a bit 
further.
    We have seen dramatic changes in American politics over the 
past 40 years. Minority voter participation has increased 
substantially. Descriptive representation of racial and ethnic 
minorities has never been so widespread. Southern blacks 
register and vote at rates as high or higher than African-
American and white voters in the rest of the Nation.
    There is a two-party system in the South which fosters 
black political empowerment and office holding, but this 
empowerment is realized as the party of choice for most 
African-Americans, the Democratic Party, has been relegated to 
minority status in legislatures in five Section 5 States of the 
South.
    When we look at the Section 5 States in the South and we 
consider them in the context of two other Southern States, 
Arkansas and Tennessee, what progress do we see in terms of 
minority participation in office holding? Well, first, Southern 
blacks have made dramatic gains at both the mass and the elite 
level. However, if the objective of the Voting Rights Act is 
proportional representation, that is an elusive goal, more 
easily achieved through voting than through elite 
participation.
    In 2004, African-Americans registered at higher rates than 
whites in three Section 5 States and voted at higher rates in 
four Section 5 States. Of all the Southern States except 
Virginia, African-Americans registered and voted at rates at 
least 80 percent of that of white voters in the same States.
    Overall, in terms of success in voter participation and 
also elite office holding, Alabama and Mississippi emerge as 
States in which African-Americans have been more successful 
politically, followed by North Carolina, and then Georgia, 
Louisiana, and South Carolina--all of which cluster closely 
together. Mississippi ranks first in black registration and 
turnout and for the proportionality of black mayors. Alabama 
ranks first in terms of African-American elected officials in 
general and in electing African-Americans to county 
commissions, city councils, and school boards. Mississippi 
ranks second in elected officials and city council members. On 
no dimension does Mississippi place worse than eighth among the 
11 Southern States. Alabama, which scored second in terms of 
registration, State House members, and Senators, fares very 
poorly in terms of African-American representation in statewide 
offices, including statewide judicial offices.
    The top six States in terms of overall progress are the 
ones that were caught by the initial trigger mechanism of the 
Voting Rights Act. The two States brought in later, Florida and 
Texas, place seventh and ninth in an 11-State South, 
respectively, in terms of voting rights progress.
    The States never required to comply with Section 5, 
Arkansas and Tennessee, rank last and eighth, respectively. Of 
the States covered by pre-clearance since 1965, Virginia has 
the poorest performance, placing tenth on the composite scale.
    Now, with regard to Section 5, what other questions do I 
have of concern as an empirical social scientist?
    One, after two generations of implementation, are the goals 
of the Voting Rights Act achieved? The answer is variable by 
State. The progress of some States makes one wonder why the 
State continues to be covered in toto by Section 5.
    Two, has Section 5 been altered by politics and the tool 
with which to advance party causes? Certainly political motives 
for the implementation of the Voting Rights Act are evident in 
the record of behavior of national and State actors and the 
implementation of Section 5, especially in the redistricting 
process. There are partisan political consequences that arise 
from these political motivations.
    Third, have the efforts to satisfy political goals and also 
the goals of the Voting Rights Act led to problematic or even 
illegal representative maps? Yes.
    Fourth, has the standard for satisfying retrogression been 
altered by practice and the interpretation of the Supreme Court 
to possibly result in unintended consequences? Again, the 
answer is yes. The Ashcroft decision presents to me as a 
testifying expert and a political scientist a particular 
empirical challenge when making assessments of retrogression.
    Thank you.
    [The prepared statement of Mr. Gaddie appears as a 
submission for the record.]
    Senator Kennedy. Thank you.
    Professor Arrington?

   STATEMENT OF THEODORE S. ARRINGTON, CHAIR, DEPARTMENT OF 
  POLITICAL SCIENCE, UNIVERSITY OF NORTH CAROLINA-CHARLOTTE, 
                   CHARLOTTE, NORTH CAROLINA

    Mr. Arrington. Thank you, Mr. Chairman, for this invitation 
to speak before the Committee. Let me begin by stating that the 
Voting Rights Act is still needed and, therefore, should be 
reauthorized with some clarifications made necessary by the 
Supreme Court decisions in Georgia v. Ashcroft and Bossier 
Parish II. I will focus my comments on Georgia v. Ashcroft and 
the continuing impact of racially polarized voting on minority 
participation.
    There is no question that we have come a long way since 
1965. The Voting Rights Act, National Voter Registration Act, 
and other statutes have removed many barriers to voter 
registration by minorities. However, we still have a long way 
to go. Substantial disparities in both registration and turnout 
remain for many minorities, particularly Asian and Hispanic 
voting-age citizens. Even where those disparities may not be 
present, such as African-American voters in some areas, 
minority vote dilution is still a problem. It is still a 
problem because voting throughout the country is still strongly 
racially and ethnically polarized, as I have discovered in my 
expert testimony in voting rights cases throughout the country. 
When the candidates chosen by minority voters and those chosen 
by a majority group differ, election systems and arrangements 
must be able to provide equal opportunity for the minority 
voters to elect representatives of their choice. Section 5 of 
the Voting Rights Act requires covered jurisdictions to 
consider whether minority voters have such an equal 
opportunity. Section 2 of the Voting Rights Act provides a 
mechanism for assuring such equal opportunity throughout 
America. Both parts of the Voting Rights Act are still needed 
because seemingly racially neutral election procedures such as 
at-large voting, major vote requirements, and anti-single-shot 
provisions may combine with racially polarized voting to erect 
effective barriers to the ability of minority voters to have an 
equal opportunity to participate in the political process and 
an equal opportunity to elect representatives of their choice.
    Georgia v. Ashcroft is an unworkable standard that 
undermines the ability of minority voters to have an 
opportunity to elect representatives of their choice. In that 
case, a narrow 5-4 majority of the U.S. Supreme Court concluded 
that a jurisdiction could satisfy Section 5--and perhaps, by 
implication, Section 2--by substituting what are called 
influence district to provide substantive representation 
instead of creating or maintaining districts in which minority 
voters have a reasonable opportunity to elect representatives 
of their choice.
    There are a number of problems with this. There are no 
clear guidelines for measuring influence districts or 
substantive representation. Like the Court's decisions about 
district shape in Shaw v. Reno and its progeny, we are left 
with no clear guidelines for drawing districts. There is no way 
to know how to comply with the Court's mandate. This is quite 
unlike the one-person/one-vote standard, which can be 
mathematically determined as the districts are being drawn.
    At what level of minority concentration, short of a 
reasonable opportunity to elect representatives of their 
choice, does a district provide influence? Do minority voters 
have influence over a representative they voted against and 
whose policies they oppose? How many influence districts are 
equal to one opportunity to elect district to provide equal 
participation? The right to vote is not based on substantive 
representation, but an equal and meaningful right to 
participate and elect representatives of choice as the Congress 
has recognized in Section 2 of the Voting Rights Act.
    Expert witnesses in voting rights cases are an essential 
part of the process because litigation involving Section 2 and 
the pre-clearance process of Section 5 are fact-intensive 
efforts. In the Gingles case, the United States Supreme Court 
specifically authorized the use of bivariate ecological 
regression analysis to measure the extent of racially polarized 
voting. The Court authorized this technique and the plurality 
opinion specifically rejected what is called ``multivariate 
analysis'' because the probative questions in voting rights 
litigation involve the extent to which minority and majority 
voters differ in their choice of candidates to represent them.
    Racially polarized voting continues to be a pervasive 
feature of American politics. Race, ethnicity, and partisanship 
are inextricably intertwined, as every student in an 
introductory American politics course knows. Some experts for 
defendants in voting rights cases argue that partisanship or 
some other variable related to race or ethnicity is the ``true 
cause,'' but the truth cause can always be traced back to race 
or ethnicity. The reauthorization of the Voting Rights Act 
should make it clear that influence districts and substantive 
representation are not acceptable substitutes for districts in 
which minority citizens have a reasonable opportunity to elect 
representatives of their choice.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Arrington appears as a 
submission for the record.]
    Senator Kennedy. Thank you very much.
    Professor Pildes?

  STATEMENT OF RICHARD H. PILDES, SUDLER FAMILY PROFESSOR OF 
  CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW 
                         YORK, NEW YORK

    Mr. Pildes. Thank you very much, Mr. Chairman. I consider 
it a great honor and a great responsibility to testify on 
renewal of the Voting Rights Act. I also consider it a somewhat 
painful moment for me because I have three concerns in 
particular I want to raise here.
    First, I am concerned that the evidence in the record does 
not address an essential issue to the constitutionality of the 
proposed bill, and I am not aware that this concern, though I 
think it may be essential, has been addressed in the House 
hearings or in the previous hearings before this Committee.
    The assumption so far of all of the evidence I have seen, 
or most of the evidence at least, is that it is sufficient to 
document continuing instances of problems in the area of race 
and voting rights in the covered jurisdictions. But I am very 
concerned that under the congruence and proportionality test 
that the Court now applies in this area, the Court is going to 
insist that there be some account of systematic differences 
between the covered and the non-covered areas of the United 
States.
    There is very little evidence in the record on this, and, 
in fact, the evidence that is in the record suggests that there 
is more similarity than difference. For example, Professor 
Arrington has discussed racially polarized voting findings. The 
National Commission on the Voting Rights Act Report, which is 
an essential study and is part of this record, documents 23 
cases from 16 States, since 1982, of polarized voting in 
statewide redistricting cases. Half are from covered States. 
Half are from non-covered States. So the racial polarization 
problem is not unique to the covered areas of the South, at 
least in this set of cases.
    The Report also quotes judges making findings in various 
cases on discriminatory voting practices, but the language, 
which is very identical in these cases, comes from States like 
Maryland and Massachusetts and Florida, as well as the covered 
States. In fact, there are 24 cases reporting findings of 
intentional discrimination since 1982, 13 in non-covered 
States, 11 in covered States.
    Now, I want to be clear about why I raise this point. It is 
not to assert that the bill as proposed is unconstitutional. 
But I look at this record as a lawyer concerned about how the 
courts will respond to it, trying to determine how best to 
ensure the constitutionality of a renewed Section 5, and I 
think this is an essential issue that has been neglected until 
now.
    The second point I want to make is related to this issue. 
For the most part, national legislation in the voting rights 
area since the 1980's, in fact, has been a broad, uniform 
national type of legislation, whether in the Help America Vote 
Act or in the National Voter Registration Act, as two examples. 
And though not widely recognized, these statutes are very 
different models of how to protect voting rights through 
national legislation than is reflected in Section 5.
    Section 5 has never protected the right to vote as such, 
and I think we tend to forget that. Section 5 is narrowly 
targeted in two respects: it is geographically targeted, and it 
is targeted to the problem of racial discrimination in voting.
    The more recent models of legislation from Congress, such 
as HAVA or the NVRA, are not selectively targeted in either of 
these ways. These statutes provide an alternative model that 
ought to be part of the discussion when we think about voting 
rights policy going forward in the important context provided 
by this renewal discussion and debate.
    And the third point I want to make is about Georgia v. 
Ashcroft and the comments Professor Arrington mentioned about 
that case. The bill proposes to overrule Georgia v. Ashcroft. I 
consider that to be a mistake, one that will harm the long-term 
interests of minority voters, frustrate the formation of 
interracial political coalitions in the South, and be damaging 
to American democracy. And let me just remind the Committee of 
the facts of this case, which also powerfully illustrate and 
concretely demonstrate the changes even since 1982 in the 
Voting Rights Act in the South.
    At the time of the Georgia redistricting at issue there, 20 
percent of the State legislators were black, and with their 
virtually unanimous support, a coalition of white and black 
Democrats sought to unpack slightly three safe minority 
districts that the Act had been thought to require in the 
1990's.
    This was done because of the rise of robust two-party 
competition in the south, which was not present in 1982. This 
coalition of white and black Democrat legislators agreed that 
to maximize the possibility that the Democrats would retain 
control of the Senate in Georgia, a few seats would be put 
marginally more at risk for the prospect of minority 
legislators and Democratic legislators having Committee 
chairmanships and the like, and the power to effectively 
represent their constituents' interests.
    The DOJ argued that the plan violated the Voting Rights 
Act. The Supreme Court, had it not rejected that view, would 
have, in my view, adopted or endorsed a policy that would have 
inverted the basic purposes of the Voting Rights Act. After 
all, here were black and white legislators willing to make 
their seats more dependent upon interracial voting coalitions. 
Here was a large contingent of black legislators, having 
entered the halls of legislative power, who now determined that 
they and their constituents would have more effective power as 
part of a Democratic Senate. Here was Congressman John Lewis, 
his life risked in the Selma march to help get the VRA enacted, 
his seat not at stake, testifying that this plan was in the 
interest of minority voters. And here were black legislators 
taking risks, cutting deals and exercising political agency to 
forge a winning coalition.
    Yet the Act, under the interpretation of the Justice 
Department, would have denied these political actors the 
autonomy and the agency to make the hard choices at issue--and 
they were hard choices--even with partisan control of a major 
institution of State government in the south at stake.
    The Court's decision permitting this deal instead 
recognizes room in the statewide redistricting context for some 
modest flexibility in Section 5, given the changes between 1982 
and today. Indeed, the Georgia plan involved a modest amount of 
flexibility in a circumstance about as compelling as one can 
envision. If Congress overturns Georgia v. Ashcroft, it will 
make even this limited amount of flexibility illegal.
    More generally, I hope that debate over Section 5 does not 
remain locked within the models of the past. I suggest that 
much of the work of the Voting Rights Act that began in 1965 is 
most effectively taken up today by building on the models of 
HAVA and the National Voter Registration Act, and protection of 
the right to vote as such.
    Thank you very much.
    [The prepared statement of Mr. Pildes appears as a 
submission for the record.]
    Senator Kennedy. Thank you very much. Let me ask you just 
what is your response to the fact that the test is rather vague 
in the Georgia v. Ashcroft?
    Mr. Pildes. I think I would have three things I would say 
in response to that, Senator. First, the decision is only from 
2003. It has never been applied, as far as I am aware, in any 
court case or in any DOJ objection. It is simply too early to 
know how the courts or the Justice Department will apply it on 
a case-by-case basis, No. 1.
    No. 2, remember, Section 2 is always present, so the worst-
case scenarios that people describe or worry about will be 
protected against by virtue of Section 2. It is not possible to 
go back to a situation of 30 percent minority voters spread 
across every district in Alabama, given section 2 of the Act.
    And third, the standard proposed in the bill to overturn 
Georgia, no ``diminished ability to elect'' itself has a 
rigidity and a mechanical quality that can lock into place 
minority districts in the south at populations that do not 
serve minority voters' interests. I don't know under a ``no 
diminished ability to elect'' standard if dropping the minority 
population from 60 percent to 55 percent is a violated, 
dropping it from 55 to 50 percent is a violation, or dropping 
it from 50 to 45 is. No ``diminished ability to elect'' is, in 
my view, a very rigid and very extreme overreaction to a 
decision which I believe is right on the facts, in Georgia v. 
Ashcroft. I am not sure if everybody agrees with me about that 
on this panel.
    Senator Kennedy. We are going to find out.
    [Laughter.]
    Mr. Pildes. But one question is whether Georgia is right on 
the facts, and a second and separate question is, whether the 
standard in the case is a troublesome standard and what to do 
in light of that?
    Senator Kennedy. And you do not believe that the pre-
Georgia rule has the sufficient kind of flexibility to be able 
to deal with some of those issues?
    Mr. Pildes. Well, if it did not permit the black-white 
legislative coalition and districting plan in Georgia, 
apparently not. And the Justice Department, remember, objected 
to that plan.
    Senator Kennedy. Professor Karlan?
    Ms. Karlan. Well, I think it is worth remembering one 
critical fact about Georgia v. Ashcroft, which is the 
Department of Justice got it right, because after the plan was 
put into effect, not only did one of the black legislators lose 
his seat, but a number of the black voters who were moved into 
districts where they were supposed to have influence did in 
fact elect white Democrats, who turned around in the 2-weeks 
between the election and inauguration and became Republicans. 
Now, I am sure that the Republicans in Georgia are very fair 
folks, but those black voters have no influence in those 
districts.
    The question about whether you can reduce the percentage of 
black or Latino voters in a district and still meet the 
retrogression standard is a red herring. Districts that were 80 
percent after the 1970 round of redistricting are now 55 
percent, and they are pre-cleared consistently by the 
Department of Justice. So the ability-to-elect standard has 
always been a standard that works. And this idea of being 
locked in a model of the past, you know, to quote Faulkner, 
``The past is not dead, it's not even past.'' There are still 
people in the Georgia legislature who were found to have 
engaged in racist behavior by a Federal District Court in 
previous rounds of redistricting in Georgia. So the idea that 
we should start by looking at 2001, and ask how things are 
going there, seems to me deeply problematic.
    Senator Kennedy. Could you comment, Professor Karlan, about 
the concerns about over-coverage and under-coverage?
    Ms. Karlan. Let me give two answers to that question. One 
is about the law of the Voting Rights Act and the other is 
about the facts. In the law there is a bailout provision which 
has been available to jurisdictions since 1982, and 
jurisdictions that ought not be covered, but that are brought 
within the trigger, can get out.
    On the other side there is what is called the pocket 
trigger, and I litigated one of the few cases that actually 
resulted in a pocket trigger. And that is when courts find 
pervasive intentional racial discrimination in jurisdictions 
that are not covered, they can order that those jurisdictions 
come under pre-clearance, and we actually did that in a part of 
Arkansas, which you heard from, I think, Professor Gaddie's 
testimony, is one of the worst States in the south because it 
wasn't brought within the Voting Rights Act in 1965.
    As a factual matter, if you say, well, half of the examples 
of racial discrimination since 1982 occurred in covered 
jurisdictions and half occurred in non-covered jurisdictions, 
it is worth remembering the denominator there, which is, there 
are 9 fully covered States that are covered jurisdictions and 
there are 41 States that are not fully covered. So half of the 
discrimination is occurring in those 9 States. It suggests that 
there is actually more of a problem in the covered 
jurisdictions than in the non-covered ones.
    Mr. Pildes. Senator Kennedy, can I just respond to at least 
that last point?
    Senator Kennedy. Yes.
    Mr. Pildes. It seems to me that legally the right 
denominator would have to be the minority population in 
different jurisdictions. We are not going to have Voting Rights 
Act issues in Idaho, for example. So when we are comparing the 
covered and the non-covered parts of the country, the fact that 
55 percent or so of African-Americans live in the south means 
that about half of African-Americans live in the south in 
covered areas, half do not. That is a very simple figure. And 
so the fact that the pattern shows about half of the problems 
are in covered States and half in non-covered States, does I 
think suggest something that is more general in the United 
States. I think Professor Arrington's testimony went to exactly 
that point. You find racial polarization in Boston and Chicago, 
in Philadelphia, in Cicero. The cases of vote dilution under 
Section 2 are spread out across the country. It seems to me the 
right denominator has to be where the minority populations are, 
and how do those problems compare across different States that 
have similar minority populations? Number one.
    Number 2. I am more worried than Professor Karlan is about 
the lack of evidence in the record about the differences 
between covered and non-covered States. I agree, the power of 
Congress in the area of voting rights is at its highest, but 
the Voting Rights Act in Section 5 is also an extremely 
unusual, indeed unique, provision, as you know, in Federal law. 
It singles out part of the country.
    Now, the constitutional jurisprudence has changed greatly 
since the courts last looked at this singling out of one part 
of the country. And it seems to me it is one thing, with the 
Family Medical Leave Act and cases like Hibbs, to base national 
uniform law on evidence from a number of States, but not all 
the States. It seems to me, constitutionally, it is a very 
different question to base geographically selective national 
law, the only one we have, as far as I know, on evidence that 
does not today show that that targeting is congruent to the 
constitutional violations that are out there. That is what I am 
worried about with the evidence in the record so far.
    Senator Kennedy. I see others have a comment. And then I 
want to get into sort of this block voting.
    But, Professor Arrington, did you want to comment?
    Mr. Arrington. Just that I wanted to point out that nobody 
says that racially polarized voting is in and of itself 
evidence of discrimination. The question is how that interacts 
with election procedures, with the traditions in the community, 
with a number of things, and so I think just to say that 
racially polarized voting exists everywhere and therefore there 
is no difference between the covered and uncovered 
jurisdictions, is simply not true.
    That is all I wanted to add.
    Senator Kennedy. How do you distinguish this between other 
types of voting? I mean Italians vote for Italians, Greeks vote 
for Greeks, Irish vote for Irish, comment.
    Mr. Arrington. I don't distinguish it at all. I think it is 
exactly the same thing. The difference is that in some places 
that racially polarized voting has interacted with election 
procedures to create a situation in which minority voters do 
not have an opportunity to elect candidates of their choice. 
And I suspect that happened way back when to Irish voters when 
they were a minority in certain places. So I don't think it is 
different in that sense at all.
    But we do have special obligations regarding race and the 
like because of the 15th Amendment.
    Senator Kennedy. Let me ask Anita Earls, doesn't the issue 
get at the deterrent effect of Section 5, and shouldn't we 
expect less discrimination in the covered States?
    Ms. Earls. Absolutely. Section 5 not only keeps there from 
being so much Section 2 litigation because it stops those 
changes from going into effect to begin with, but it also 
deters election officials from enacting and putting in place 
discriminatory measures to being with.
    But I would further suggest that the notion that the 
standards you have to meet is to show systematic differences 
between covered and non-covered jurisdictions is not the 
correct standard, and with all due respect, Professor Pildes is 
being very pessimistic about the evidence that is in the record 
before you, and in fact, what you have is evidence of sustained 
in transigence in the covered jurisdictions that you don't see 
in the non-covered jurisdictions.
    So, for example, in North Carolina, we have recently a 
pattern of local governing bodies going back to at-large 
election systems, something that is not occurring in non-
covered jurisdictions. So this pattern of continuing to try to 
either go back to discriminatory patterns or enact new 
discriminatory measures, is something that is unique to the 
covered jurisdictions.
    Senator Kennedy. Let me ask Professor Karlan, do you think 
that Section 2 is an adequate substitute for 5, and do you 
believe the presence of Section 2 makes it unnecessary for 
Congress to pass language clarifying the Georgia v. Ashcroft?
    Ms. Karlan. No, Senator Kennedy, I don't, for a reason that 
the Supreme Court got at as early as South Carolina v. 
Katzenbach, where there is that line that you read in your 
opening statement about shifting the burden of inertia to the 
perpetrators of discrimination and away from the victims.
    I did a lot of Section 2 litigation in my prior life before 
I became an academic, and it is costly litigation. I would 
guess that this Committee is going to see in front of it most 
of the people in the country who do the litigation actually 
testifying. It is a very small bar of people who do Section 2 
litigation and who have the expertise to do it.
    When you get down to the local level, the national 
organizations often are not involved, they are not aware of 
what is going on. What Section 5 does is it shifts that burden 
to the Federal Government, which is far better able to bear it 
than either minority citizens in poor communities or the very 
small civil rights bar. So Section 2 is not an adequate 
substitute for Section 5 because it allows the changes to go 
into effect, and that means you can go through several election 
cycles while the litigation is going on where the 
discriminatory change is in effect. It requires the minority 
community to find a lawyer who will bring these cases. And let 
me tell you, from having litigated the cases and having 
litigated the attorneys' fees issues after the cases, this is 
not a way of getting rich. It is not even a way of making a 
living. And it requires that huge amounts of resources in the 
litigation process be used, both by the jurisdictions and by 
the individual citizens. So I don't think of it as an adequate 
substitute in any way.
    Mr. Pildes. Senator Kennedy, I want to just say I agree 
with all of that. The point, though, is that Georgia v. 
Ashcroft is about redistricting, and statewide redistricting, 
as least in that case, so that is the one area in which there 
is litigation all over the country, not just under the Voting 
Rights Act, but in partisan gerrymandering and other cases too. 
This is not the low visibility issue of moving polling places 
or changing voting systems in some county. So while it is 
generally true that there is a very important difference 
between Section 2 and Section 5, the question that is relevant 
here, I think, with respect to Georgia, is whether that 
difference is significant enough that the south, the covered 
States, should not be able to make the same deals in the 
redistricting process that the north can where there are 
significant minority voting populations in the north. That is, 
I think, the focus.
    Ms. Karlan. But it is not just--
    Mr. Pildes. Let me just respond to one or two other things. 
I agree also with Anita Earls, that if there are areas we can 
identify of real sustained intransigence and the like, 
absolutely those areas should be covered by Section 5. I simply 
am saying that in the record, where there is some comparison, 
it suggests more similarity than difference, and we ought to 
build a record that actually shows that the coverage that we 
end up with is congruent to what the record shows about where 
the violations are and where they are not.
    The final thing I want to say just so I am not 
misunderstood--and I consider it important--I am not in any way 
saying the problems of race discrimination in the voting area 
are in the past. I do not mean to say that. What I mean to say 
is the Voting Rights Act in Section 5 was created in an era 
where Congress didn't believe it had power to regulate voting 
rights as such, but that it had to act under the 14th or 15th 
Amendments, particularly to deal with racial discrimination in 
voting.
    Congress'ss powers now are clearly much broader, not only 
under Article I, Section 4, as Professor Karlan mentioned, but 
I believe, given that the Supreme Court has held that the right 
to vote is a fundamental right in all general elections, 
Federal, State and local, for general governmental bodies, I 
believe the Congress may well have a general power to enforce 
the right to vote, not just in Federal elections, but in all 
elections for political bodies that are exercising general 
governmental powers.
    So what I mean is I want us not to stay locked in the 
mindset of the past, in which we think we can only deal with 
race discrimination in voting at the national level. We can 
deal with the right to vote as such at the national level, and 
HAVA and the NVRA reflect that.
    Senator Kennedy. Let me just ask you. Of course, we did, 
didn't we, in Congress, specifically on the right to vote on 
the poll tax, didn't we eliminate for the poll tax, which was 
an individual issue?
    Mr. Pildes. And the literacy test.
    Senator Kennedy. And the literacy test.
    Mr. Pildes. Yes, absolutely.
    Senator Kennedy. I want to give Professor Karlan must a 
response, and then I would like to ask Professor Gaddie and 
maybe Arrington, if they would talk a little bit about the 
Hispanic, you know, the disparity in terms of the registration, 
where we are in terms of that, and Professor Earls, if you have 
any kind of comment. And then we are going to be voting 
shortly, but this has been enormously interesting, and helpful.
    Ms. Karlan. The first point, Senator Kennedy, is that the 
Georgia v. Ashcroft standard doesn't just apply to statewide 
partisan redistricting, but it applies to all cases, and that 
is what worries me, because so much of the discrimination that 
goes on is under the radar screen of the national political 
parties or the national groups. So when a school board comes in 
and says, ``It's true we have some majority black districts 
right now, but we think black people would be better off, 
they'd have more influence if they were 30 percent of each of 
the districts, rather than actually electing anybody to the 
school board, than charging it against the Ashcroft standard,'' 
fine, States can pick among theories of representation.
    And I think it is important to understand this is not 
mostly a bill about Congressional redistricting or a bill about 
State legislative redistricting. It is about what goes on at 
the local level, and that is a really critical place to think.
    The second thing is I think all of us on the panel here 
would support Congress being more aggressive in protecting the 
right of every American to register, to cast a ballot and to 
have that ballot counted, but there are distinctive problems in 
the south with regard to the voting rights of blacks and of 
Latinos, which will not be dealt with solely by allowing people 
to register and vote. That is part of what you found out in the 
move from 1965 to 1970, which was, you know, in the 1965 Voting 
Rights Act you have provided for Federal registrars. They went 
down to the south and in 2 years they registered more black 
people in the south than had been registered in the previous 
hundred years. A fabulous achievement. And what did we see? 
Almost immediately, jurisdictions started changing the 
electoral rules to make sure that the blacks could register and 
vote and even have their ballots counted. Those ballots didn't 
count for very much. Their votes were diluted.
    So I think it is important to recognize that there is both 
a general voting rights problem and there is a specific voting 
rights problem that deals with the issues of blacks and Latinos 
in the covered jurisdictions.
    Mr. Gaddie. Senator Kennedy, I am learning today that I 
need to be a bit more assertive. I am used to having lawyers 
lead my questioning.
    [Laughter.]
    Mr. Gaddie. I can speak with firsthand experience about the 
application of the Ashcroft standard in pre-clearance, having 
the dubious distinction of having been involved in the Texas 
redistricting. At the time the Texas--if I may have a moment?
    Senator Kennedy. Yes.
    Mr. Gaddie. As the Texas redistricting was going on, the 
Ashcroft decision came down. And I went to Glen Abbott, the 
Attorney General of Texas, went to his outside counsel, and 
said, ``I have a strong suspicion that with this decision 
you'll see DOJ possibly applying a different retrogression 
standard, a different kind of baseline.'' And indeed what 
happened, both at trial, in front of Judge Higginbotham, down 
in the Fifth Circuit, and also in the pre-clearance process, 
the argument was made to include any district that appeared to 
look like a coalition district as part of the minority baseline 
in the initial assessment by the professional DOJ staff. There 
was disagreement between the DOJ staff and the political staff 
regarding which position should prevail. The political position 
prevailed.
    When we get into this issue of baselining retrogression, 
the challenge for Professor Arrington and I is how do we treat 
these coalition districts? How do we treat a 30 percent 
minority district where there is a 1 in 4 chance the minority 
voter gets their outcome of interest versus a 65 percent 
district where the outcome is certain. At the end of the day it 
is going to be politics that will guide how that standard is 
applied by the DOJ because they will apply their own theory of 
representation independent of the theory that the State chooses 
to apply.
    Mr. Arrington. I think you asked about the question of 
Latinos and Asians too?
    Senator Kennedy. Please.
    Mr. Arrington. Often, particularly in places where the 
African-American community has been very well organized for a 
long time, like some places in North Carolina, their rate of 
voting and turning out is pretty good, often not quite up to 
the same as whites, but pretty good. But the disparity between 
Latinos and Anglos is generally much greater. And in places 
where you have a mixed population, where you have Anglos and 
Blacks and Hispanics, the general pattern is that Anglos turn 
out and register at the highest rate, Blacks are close to that 
in many areas, and then Latinos far, far below that. So you 
have a much more serious problem there.
    What that means in terms of districting is that if you want 
to create a district in which Latinos have a reasonable 
opportunity to elect a candidate of their choice, they have to 
be concentrated much more in that district than would black 
citizens. Often in States like North Carolina, for example, you 
can create a district in which African-Americans have a 
reasonable opportunity to win with less than 50 percent black 
population. That is not true generally for Latinos. It is a 
very different situation. It is a much more severely difficult 
situation to solve.
    Mr. Gaddie. And the other challenge is that we can't count 
on homogeneity within the Latino population. There is 
tremendous variation of participation across Latino 
populations, even within a particular Latino ethnic group 
within a State. You look at South Texas, you see high rates of 
Latino participation in most of the South Valley, outside of 
the sweep between El Paso and San Antonio; very low Latino 
participation, relatively speaking, in Metro Dallas and Metro 
Houston. So, it becomes extremely contextual with regard to 
Latino participation throughout the United States.
    Senator Kennedy. Professor Earls?
    Ms. Earls. I would just make one final point about the 
record before you.
    Senator Kennedy. Yes.
    Ms. Earls. There are so many examples of recent 
discriminatory conduct, it is hard to summarize them in the 
time we have, but just two quick things.
    Recently, 125,000 voters in predominantly African-American 
precincts, that is, targeting black voters in North Carolina, 
were sent postcards erroneously telling them that they could 
not vote on election day if they had moved, causing great 
confusion, discouraging them from voting.
    Another example, in 2004, the sheriff of Alamance County in 
North Carolina, took a list of registered voters in his county 
that had Spanish surnames, and said publicly that he would send 
deputies to the homes of each of those voters to verify that 
they were citizens. That type of discouraging of minority 
voting--those people are all registered, but they are still 
targeted by these types of campaigns. That is the atmosphere 
that we are dealing with, and those types of examples are found 
in numerous other States.
    Senator Kennedy. Let me ask you--and others can make a 
brief comment--in the Bossier II case, the Supreme Court ruled 
that Section 5 prohibits the voting changes only if they worsen 
or intend to worsen the position of minorities. In other words, 
under Section 5, voting change may not make minorities worse 
off, for instance, if they are already completely shut out of 
power, it is hard for a change to put them in a worse position, 
but it may still dilute their voting power, intentionally 
discriminate. Would you agree that under the Bossier II 
standard the Department of Justice and District Court for the 
District of Columbia must pre-clear even an illegal or an 
unconstitutional voting change so long as there is no 
backsliding in minority voting power? What is your view on the 
case?
    Ms. Earls. Yes, that is the impact of Bossier II. It is 
essentially a discrimination dividend. As long as you have 
excluded blacks or other minorities effectively, you can keep 
excluding them, and it has--it is a significant impact on the 
ability of--on the Section 5 pre-clearance process to truly 
keep discriminatory practices from being put in place.
    Senator Kennedy. OK. We are voting on a judge just in a few 
minutes, and Senator Feingold, I believe, wanted to come over. 
So we will have a brief recess, and then if it turns out that 
he is not going to, we will recess.
    This has been enormously interesting, and we will ask the 
staffs to submit some questions. I was looking to see whether 
they had some questions because this is a great panel here. So 
there it is, so we will have a brief recess.
    We thank you. Let me just ask you, if there are some 
areas--we gave you very short time and you have got some good 
written statements. All the written statements will be made a 
part of the record, and my colleagues, Senator Specter's, 
Senator Leahy's statements. They, I believe, passed out the 
House bill 33-1 last week in the markup.
    But as a result of these questions, if you want to provide 
some additional information, we would welcome that, and we will 
ask our--I do not know what the rule of the Chair was--two, 3 
days for questions? Seven. So we will recess at the call of the 
Chair.
    Thank you very much.
    [Recess.]

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold [presiding]. I am going to reconvene the 
hearing. I want to thank the Chairman for allowing me to 
continue and perhaps conclude the hearing after I have asked 
some questions, unless another colleague comes. Thank you to 
the panel. I am sorry that I was not able to hear your 
testimony.
    First, I want to thank you for this important hearing on 
Section 5, the pre-clearance provision of the Voting Rights 
Act. Section 5 rightfully imposed heightened oversight on some 
of those jurisdictions that were the very worst actors in 
discriminatory voting practices.
    The advances in minority votes and representation in areas 
covered by Section 5 in the past 40 years have been profound. 
Although we have made significant advances as a result of the 
Voting Rights Act, there is still more work to do. The goal of 
the Voting Rights Act is not to reduce discriminatory voting 
practices, but to eradicate them entirely.
    Section 5 has been instrumental in bringing about the 
dramatic improvements in voting rights and representation for 
minorities in covered areas. Keeping it in place with a 
reasonable bail-out provision is the best way to be sure that 
we don't lose the progress that has taken place.
    Let me just say in response to some comments that were made 
at last week's hearing that all Members of Congress, regardless 
of whether they represent a covered or non-covered 
jurisdiction, and regardless of their political affiliation, 
have an interest in ensuring the continued effectiveness of the 
Voting Rights Act. As Federal legislators, we have a 
responsibility to address and eliminate discrimination wherever 
it is found. The integrity of our elections and our very 
democracy depends on it.
    Now, let me turn to Professor Arrington. Can you talk a 
little bit about racially polarized voting in Section 5-covered 
jurisdictions? Do you have any recent evidence of the concern?
    Mr. Arrington. Senator Feingold, I have attached to my 
written testimony the decision of both the circuit court and 
also the district court on the Charleston County Commission 
case, and I think that is an interesting one because it shows 
the interaction of Section 2 and Section 5.
    The United States brought a Section 2 action against the 
county council in Charleston County, and I found there the most 
extreme polarized voting I think I have ever seen, and I have 
been doing this work since 1985. So there was no evidence of 
any reduction in polarized voting, at least in Charleston.
    The interesting thing to me was that the judge found, in 
accordance with my testimony, that there was legally and 
substantively polarized voting; that because of that and the 
at-large elections that they had there, African-Americans did 
not have a reasonable opportunity to elect candidates of their 
choice. But he also found that in the school board where the 
elections were non-partisan and, as I remember, were not in 
numbered posts, African-Americans did have a pretty good chance 
of winning.
    Right after the judge's decision, the State legislature 
changed the school board so it would look like the county 
commission elections that the judge had just said violated 
Section 2. In turn, of course, the Justice Department would not 
pre-clear that change because it was clear from the judge's 
decision that that change was in violation of Section 2 and 
Section 5.
    The racially polarized voting in the school board elections 
was only slightly less than the racially polarized voting in 
the county commission. They were extreme. We are talking about 
90 percent of the blacks typically voting for black candidates 
and some similar number of whites voting for white candidates.
    Senator Feingold. Well, thank you, Professor, for that 
specific answer. I appreciate it.
    Professor Karlan, I wondered if you could expand a bit on 
the point I understand you made earlier about federalism and 
the distinctive power of Congress in the voting rights area. 
Does the Boerne line of cases apply differently when we are 
talking about voting rights?
    Ms. Karlan. Yes, Senator Feingold, it does apply 
differently. The major concern in the Boerne line of cases was 
the sovereign immunity of the States to lawsuits brought by 
individuals against the State. Of course, that specific part of 
the concern in the Boerne line of cases, in cases like Kimel or 
Garrett or the Florida Prepaid cases, is totally absent here 
because Section 5 is not about lawsuits by private individuals 
against States for damages at all.
    Indeed, the only place where private individuals are 
involved is either as defendant intervenors where the State has 
brought a lawsuit and has waived any sovereignty claim or in 
cases trying to force States actually just to comply with the 
obligation to seek pre-clearance.
    Now, that being said, there are a couple of other things 
about the Boerne line of cases that I think are very helpful in 
explaining why I think Congress's power here is, if anything, 
at its absolute peak. One of them is even the post-Boerne cases 
all cite the Voting Rights Act of 1965 as the example of a 
statute that meets the Boerne test of being congruent and 
proportional.
    That is true as late as Lopez v. Monterey County, the 
California partially covered State case, where Justice O'Connor 
wrote for the Court that the Voting Rights Act by its nature 
intrudes on State sovereignty, but the 15th Amendment permits 
that intrusion. Indeed, I think because the enforcement clauses 
of both the 14th and 15th Amendments tell Congress to enforce 
that, it almost demands that Congress intrude on State 
sovereignty when States are denying blacks or Latinos the right 
to vote.
    Now, on top of that, as I suggested in my testimony this 
morning, the one concrete suggestion I would have for the 
Committee in the drafting of Section 5 is to make it clear that 
you are not just relying on the enforcement clauses of Section 
5 of the 14th Amendment and Section 2 of the 15th Amendment, 
but that you are also relying on Article I, Section 4, of the 
Constitution, which is the so-called Time, Place and Manner, or 
Election Clause.
    That is the clause that says, in the first instance, States 
decide how to conduct the time, place and manner of the 
elections for the House of Representatives, but Congress may 
override. And the Supreme Court has made clear since 1917 at 
the latest that that means Congress can override any 
determinations the States made about that.
    In the Foster v. Love case, the Supreme Court says--and let 
me just quote a little bit here--``The clause gives Congress 
comprehensive authority to regulate the details of elections, 
including the power to impose the numerous requirements as to 
procedures and safeguards which experience suggests shows are 
necessary to enforce the fundamental right involved.''
    And in other cases, they have said that includes 
registration, day of election protection, protection against 
fraud. And since 1842, as you probably know, Congress has 
required that States elect members of the House of 
Representatives by district. That is not something the 
Constitution requires. The Congress requires it, and that 
overrides.
    So if a State said tomorrow, well, we want to elect our 
members of the House of Representatives at large, the answer 
would be you can't. There is no Tenth Amendment reserved power 
for the States at all when it comes to the regulation of 
Federal elections, and much of what the Voting Rights Act does 
is to regulate people's participation in Federal elections. And 
as Senator Kennedy was saying when he was here earlier, that 
includes mixed elections. So if you have any Federal candidate 
on the ballot, it counts as a Federal election for Article I, 
Section 4, purposes.
    Senator Feingold. Thank you very much, Professor.
    Finally, Ms. Earls, what would happen in covered 
jurisdictions in the absence of Section 5?
    Ms. Earls. I think that actually the North Carolina 
experience is very instructive on that question because 40 of 
the State's counties are covered. There are 100 counties in the 
State as a whole, so we really have a basis for comparison. 
There are at least three examples I can give of current things 
that are happening in non-covered counties that are protected 
in the covered counties.
    For example, several counties non-covered under Section 5 
sued under Section 2, required by court order to put in place 
single and redistrict systems, are now passing laws to go back 
to at-large election systems. Under Section 5, that would be 
retrogression and it is prohibited. It is not happening in the 
covered counties.
    Another example is the deterrent effect of Section 5. In 
preparation for the report that we prepared on North Carolina 
and Virginia, we had hearings and local residents came and 
talked about how in the covered counties local officials will 
consult with them if they want to move a polling place or when 
they are enacting new districting plans. That doesn't happen in 
the non-covered counties. So there is real evidence of a 
deterrent effect that currently means that minority voters have 
a greater involvement in decisions about election procedures as 
they are being made.
    A third example is the whole question of annexations. We 
are dealing in North Carolina with a number of traditionally 
minority communities that are left out of town boundaries. They 
don't get public services and they don't have the right to 
vote.
    In Rocky Mount, a covered city, in the late 1990's, that 
city annexed Battleboro, a predominately black neighborhood, 
because under Section 5 they couldn't continue to annex white 
areas and not annex that black neighborhood. In Pinehurst, not 
a covered jurisdiction, there are four or five African-American 
communities that are outside the town boundaries that still 
don't have water and sewer and still can't vote for local 
officials. So there is really a difference in the experiences 
of covered versus non-covered counties.
    I would finally just say the impact of Section 5 being 
removed--in North Carolina, we have under cases decided in the 
past few years in the State courts a whole-county provision 
that requires legislative districts to be drawn from whole 
counties. If Section 5 is removed, we are at risk of losing 
from 5 to 11 of our current legislative districts that elect 
candidates of choice of black voters. So we really will see a 
huge impact if Section 5 is lost.
    Senator Feingold. I thank you for all of your answers. I 
don't think there is any more important subject than the 
subject of voting rights, so we thank you.
    I understand it is appropriate for me to adjourn the 
hearing. Thank you very much.
    [Whereupon, at 11:12 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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