[Senate Hearing 109-545]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-545
 
    UNDERSTANDING THE BENEFITS AND COSTS OF SECTION 5 PRE-CLEARANCE

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



                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 17, 2006

                               __________

                          Serial No. J-109-76

                               __________

         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

Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................    24
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......    13
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   194

                               WITNESSES

Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law 
  School, New Haven, Connecticut.................................     5
Derfner, Armand, Derfner, Altman and Wilborn, Charleston, South 
  Carolina.......................................................     9
Gray, Fred D., Gray, Langford, Sapp, McGowan, Gray and Nathanson, 
  Montgomery, Alabama............................................     2
Persily, Nathaniel, Professor of Law, University of Pennsylvania 
  Law School, Philadelphia, Pennsylvania.........................    11
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, New 
  York, New York.................................................     7

                         QUESTIONS AND ANSWERS

Responses of Drew S. Days III to questions submitted by Senators 
  Cornyn, Coburn, Kennedy, Leahy, and Schumer....................    31
Responses of Armand Derfner to questions submitted by Senators 
  Cornyn, Coburn, Leahy, Kennedy, and Schumer....................    71
Responses of Fred D. Gray to questions submitted by Senators 
  Cornyn, Leahy, Coburn, and Kennedy.............................    90
Responses of Nathaniel Persily to questions submitted by Senators 
  Cornyn, Coburn, and Kennedy....................................   105
Responses of Abigail Thernstrom to questions submitted by 
  Senators Cornyn and Coburn.....................................   138

                       SUBMISSIONS FOR THE RECORD

American Enterprise Institute, Project on Fair Representation, 
  Edward Blum, Visiting Fellow, and Lauren Campbell, Research 
  Assistant, Washington, D.C., prepared statement................   150
Days, Drew S., III, Alfred M. Rankin Professor of Law, Yale Law 
  School, New Haven, Connecticut, prepared statement.............   163
Derfner, Armand, Derfner, Altman and Wilborn, Charleston, South 
  Carolina, prepared statement...................................   174
Gray, Fred D., Gray, Langford, Sapp, McGowan, Gray and Nathanson, 
  Montgomery, Alabama, prepared statement........................   184
Lewis, Hon. John, a Representative in Congress from the State of 
  Georgia, letter................................................   196
Persily, Nathaniel, Professor of Law, University of Pennsylvania 
  Law School, Philadelphia, Pennsylvania, prepared statement.....   198
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, New 
  York, New York, prepared statement.............................   204


    UNDERSTANDING THE BENEFITS AND COSTS OF SECTION 5 PRE-CLEARANCE

                              ----------                              


                        WEDNESDAY, MAY 17, 2006

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:28 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch presiding.
    Present: Senators Hatch, Leahy, and Durbin.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Good morning. As you can see, we have had 
some changes in the schedule today because of immigration on 
the floor, and I apologize to all of you. I am not Arlen 
Specter. He is a dear, good friend of mine for 35 years, but he 
has more hair.
    We are marking the anniversary today of the Supreme Court's 
landmark decision in Brown v. Board of Education, one of the 
most remarkable decisions in the Supreme Court's history. It 
took a couple years to get it through. The Chief Justice at the 
time realized that he had to take a disparate group of Justices 
to get a unanimous opinion. The country was going to have a 
difficult enough time with it as it was, but would have even 
more had it been a 5-4 decision or less than unanimous. Now 
that we are reauthorizing the Voting Rights Act, I think it is 
appropriate to recognize the great civil rights struggle which 
led to it. Like Brown v. Board of Education, which began to 
bring to an end America's sorry history of racial segregation, 
the Voting Rights Act is helping bring equal participation in 
voting to all Americans, something we probably took for granted 
in my State of Vermont but a lot of other States did not, 
something that assume is guaranteed today, but we have 
generations to come, our children and grandchildren, who may 
not have it, be able to take it for granted, unless we 
reauthorize this.
    I am encouraged that we have moved forward with the 
hearings and the introduction of our bipartisan, bicameral 
bill. I hope we can finish this before we recess for the 
Memorial Day break. I would hope this would be the major issue 
on the floor as soon as we come back. The House Judiciary 
Committee has been moving ahead. They reauthorized the Voting 
Rights Act by a vote of 33-1. If you look at the House 
Committee, it goes across the political spectrum in both 
parties. I think that is pretty amazing.
    Here we are focusing on Section 5, required covered 
jurisdictions to pre-clear changes. We will hear more about the 
benefits of Section 5. The chief benefit of it is that it 
furthers the very legitimacy of our Government, which is 
dependent on the access to the voting booth.
    We have a distinguished panel. Mr. Gray, it is always good 
to see you here. He is one of the Nation's pioneering civil 
rights lawyers. He spent a lifetime fighting for those who were 
denied the rights to equal protection and equal dignity under 
the law. After graduating law school, he immediately went to 
work defending Rosa Parks and Dr. Martin Luther King, Jr., in 
the Montgomery bus boycott. Starting in the late 1950's, he 
brought landmark voting rights cases like Gomillion v. 
Lightfoot to the Supreme Court, paving the way for the 
expansion of voting rights that culminated in the Voting Rights 
Act of 1965.
    Armand Derfner has had a distinguished career as a voting 
rights litigator and author. He began his career in 1965 
working with the first Federal examiners under the Voting 
Rights Act to register citizens to vote in Greenwood, 
Mississippi, and he has worked with Congress each time Section 
5 has been extended--in 1970, before I came to the Senate; in 
1975, shortly after I came to the Senate; and in 1982.
    Of course, Professor Drew Days is well known to all members 
of this Committee. He is one of the country's top 
constitutional lawyers. He was the Solicitor General of the 
United States from 1993 to 1996--I voted on your confirmation--
and he has argued 23 cases before the Supreme Court of the 
United States. He also formerly served with distinction as the 
Assistant Attorney General for Civil Rights.
    We have Abigail Thernstrom, a Senior Fellow at the 
Manhattan Institute in New York, a member of the Massachusetts 
State Board of Education, the Vice Chair of the U.S. Commission 
on Civil Rights, of course, written numerous books including 
``America in Black and White: One Nation, Indivisible,'' ``No 
Excuses: Closing the Racial Gap in Learning.'' She has a Ph.D. 
from Harvard.
    And Professor Nate Persily from Penn Law School, from the 
Chairman's home State, nationally recognized expert on election 
law, frequent practitioner, media commentator. I, like others, 
have seen you in that area. He was recently appointed by courts 
to help draw legislative districting plans for Georgia, 
Maryland, and New York, and by the California State Senate as 
an expert in their redistricting litigation. He wrote a Supreme 
Court amicus brief for the prevailing party in Utah v. Evans, 
published articles on legal regulation of political parties; 
B.A. from Yale, M.A. from Berkeley, J.D. from Stanford, Ph.D. 
in clinical science from Berkeley.
    So I am glad we are here. I do regret--I have only one 
regret. We have given short shrift to the extension of Section 
203 in the protection of language minorities. We may have to 
supplement our record before that. But, Mr. Gray, as I said, 
you are no stranger to this place. You are not shy. Why don't 
you go ahead?

STATEMENT OF FRED D. GRAY, GRAY, LANGFORD, SAPP, McGOWAN, GRAY 
               AND NATHANSON, MONTGOMERY, ALABAMA

    Mr. Gray. Thank you very much, Mr. Leahy.
    To Senator Leahy, to my Senator, Jeff Sessions, in his 
absence, and other members of the Committee, as you know I am 
Fred Gray. I am honored today to testify in support of 
reauthorizing what many have called ``the most important civil 
rights legislation in history.''
    I probably bring a little different perspective to this 
Committee. I testify from a perspective as a civil rights 
lawyer who has been in the trenches for over 50 years in the 
Deep South, particularly in Alabama. I am still a trial lawyer, 
and as a matter of fact, I am in the middle of a trial but felt 
it was important enough to come to be here today.
    I worked with African-Americans in Alabama in an effort to 
obtain--and then maintain--the right to vote. Some of these 
people, such as Dr. C.G. Gomillion, who is the lead plaintiff 
in Gomillion v. Lightfoot, and William P. Mitchell, these 
persons were filing lawsuits as early as 1945 in an effort to 
obtain the right to vote for African-Americans in Tuskegee, 
Alabama, the home of Tuskegee University where Dr. Washington 
did his work, Dr. Carver did his work, and the home of the 
Tuskegee Airmen.
    This struggle culminated in the Supreme Court's decision in 
Gomillion v. Lightfoot. In direct response to increased voter 
registration, the Alabama Legislature passed a law in 1957, 
changing Tuskegee's city limits from a square to 28 sides, 
excluding substantially all of the African-American voters and 
leaving all the white voters in. The Supreme Court unanimously 
held that the boundary change violated the 15th Amendment.
    The Voting Rights Act, passed in 1965, was the direct 
result of the Selma-to-Montgomery March. The first attempt to 
march was aborted on March 8, 1965, in what has become known as 
``Bloody Sunday,'' when now-Congressman John Lewis and others 
were beaten back after they crossed the Edmund Pettus Bridge in 
Selma, Alabama. Within 24 hours of the time they were beaten 
back, I filed the of Williams v. Wallace to compel the State of 
Alabama to protect those marchers.
    As a civil rights lawyer practicing both before and after 
enactment of the Voting Rights Act, I can and I do attest to 
its profound impact on the full participation of African-
Americans in our society. On a more personal note, it was 
enforcement of the Voting Rights Act in redistricting cases 
that allowed me in 1970 to become one of the first two African-
Americans to serve in the Alabama Legislature since 
Reconstruction.
    I understand the question has been asked whether there is 
still a need for Section 5. Let me answer that question with a 
resounding ``Yes.''
    We all recognize the substantial improvements that have 
occurred because of the Voting Rights Act. African-American 
registration in Alabama indeed is higher now than it was. I 
knew the time when we had no elected officials in Alabama; now 
we have approximately 870.
    But these successes that are directly attributable to a 
civil rights law should not and cannot provide a foundation or 
an excuse for those persons who would say now that you have 
obtained it, there is no need for the law to continue. If it 
was necessary in order to obtain these rights, to have that law 
and to have proper interpretations of it, certainly it is 
equally important or more important that the law continues in 
effect so that these great successes which we have had will 
continue.
    Unfortunately, Alabama still suffers from severe racially 
polarized voting. Only two African-Americans have ever been 
elected to statewide office: the late Oscar Adams and Ralph 
Cook to the Alabama Supreme Court. However, today, I am sad to 
tell this Committee we have no statewide office holders of 
African-Americans. There are two running in the primary now, 
but I am afraid that after June 6th we may--or after November, 
we still may have none.
    Racial discrimination in voting has persisted in Alabama 
since the reauthorization of the Act. Let me give you a few 
examples.
    In Selma--the birthplace of the Voting Rights Act--the 
Department of Justice objected to redistricting plans as 
purposefully preventing African-Americans from electing 
candidates of choice to a majority of the seats on the city 
council and county board of education.
    Another example: The Department objected to Alabama 
Legislature's 1992 Congressional redistricting plan on the 
ground that fragmentation of black populations was evidence of 
a ``predisposition on the part of the State political 
leadership to limit black voting potential to a single 
district.''
    Another example: In 1998, the Department objected to a 
redistricting plan for Tallapoosa County commissioners on the 
ground that it impaired the ability of black voters to elect a 
candidate of choice in order to protect a white incumbent.
    In 2000, the Department objected to annexations by the city 
of Alabaster which would have eliminated the only majority 
black district, demonstrating that the boundary manipulations 
of Gomillion are not a relic of the past, but is still 
presently in existence in our State.
    Since 1982, Federal courts have found violations of the 
Voting Rights Act across Alabama's electoral structures. 
Dillard v. Crenshaw County led to changes from an at-large to 
single-member district for dozens of county commissioners, 
school boards, and municipalities. You will also find in my 
report the other instances in which we set out these various 
conditions.
    Finally, Section 5 provides a powerful deterrent force in 
preventing discrimination. As a civil rights practitioner, I 
have worked with countless office holders, and based on my 
experience, I strongly believe that the continued Section 5 
coverage in Alabama is not only necessary but it is imperative 
if we are to continue to have these good successes.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Gray appears as a submission 
for the record.]
    Senator Leahy. Thank you, Mr. Gray.
    Chairman Specter and I received a letter from Congressman 
John Lewis this morning. I am going to make it a part of the 
record, but I first would like to read a short excerpt from it, 
and this is Congressman Lewis speaking:
    ``I regret that some witnesses, as well as Senators, 
continue to quote a few words of my testimony''--this is from 
his testimony before this Committee--``in the case of Georgia 
v. Ashcroft and take them out of context and improperly imply 
that I do not favor reauthorization of Section 5 of the Voting 
Rights Act or that my words justify their opposition to Section 
5. I take issue with the use of my name to justify opposition 
to the renewal of Section 5 and assure you that I am a strong 
supporter of this provision.''
    I was here for the testimony, and nobody could be stronger 
in a statement than Congressman Lewis, and without objection, 
that will be part of the record.
    Professor Days, again, welcome. Thank you for being here.

 STATEMENT OF DREW S. DAYS III, ALFRED M. RANKIN PROFESSOR OF 
          LAW, YALE LAW SCHOOL, NEW HAVEN, CONNECTICUT

    Mr. Days. Thank you, Senator Leahy, and thank you for your 
vote. I want to thank--
    Senator Leahy. You kind of earned that one.
    [Laughter.]
    Mr. Days. I want to thank you and the Committee for 
inviting me to participate in these hearings concerning the 
reauthorization of the Voting Rights Act of 1965. As my 
colleague Fred Gray pointed out, and, of course, it comes as no 
surprise--I think everybody understands this--it is one of the 
most important pieces of legislation in our entire Nation's 
history.
    I have become very enamored of a quotation from the opinion 
written by Chief Justice Warren in the South Carolina v. 
Katzenbach case upholding the constitutionality of the Voting 
Rights Act. He focused on Section 5 and described it, in 
essence, as a way in which Congress shifted ``the advantage of 
time and inertia from the perpetrators of the evil to its 
victims.''
    I don't know whether I want to call people ``perpetrators 
of evil'' these days, but I really think the central issue 
before this Congress is at heart whether 40 years after the 
Act's passage, the time has come to shift this advantage of 
time and inertia back to the jurisdictions covered by Section 
5. My answer is that it has not. Instead, the Voting Rights Act 
and Section 5, in particular, should be reauthorized in order 
to promote further progress in achieving truly equal 
participation in the political process free of racial 
discrimination and exclusion or to prevent backsliding that may 
result in undermining what success the Act has already 
achieved.
    Now, I have not had a chance to review all of the testimony 
and statements of witnesses or the studies that have been 
submitted to the Committee and to the House Committee with 
respect to reauthorization, but based upon my 4 years 
administering Section 5 and other provisions of the Act, I 
believe that this record offers ample evidence of 
contemporaneous and continuing problems of electoral practices 
discriminatory in both purpose and effect sufficient to support 
renewal. I have in mind especially the reports prepared by the 
National Commission on the Voting Rights Act and by the Voting 
Rights Project of the American Civil Liberties Union.
    Of course, there has been evidence of progress since 1965. 
I think it would be hard to deny that. But I have noted that 
some others who have been appearing before the Committee and 
the House Committee have pointed to, for example, the small 
number of objections lodged by the Attorney General in the pre-
clearance process to support their contention that Section 5 is 
no longer needed. Apparently, their view is that jurisdictions 
have simply stopped discriminating on their own. But relying 
once again on my experience in administering that regime, I 
believe those same figures can be explained in a number of 
different ways. One that I think is most significant is that it 
reflects vigorous enforcement of Section 5 in the past, and 
more recent active informational efforts by the Department with 
respect to the pre-clearance process have resulted in a higher 
level of compliance. During my time at the Justice Department, 
compliance was increased markedly to the extent that a covered 
jurisdiction anticipated that there would be a forceful 
response if pre-clearance was not sought and to the degree that 
they expected fair, prompt, respectful, and constructive 
treatment of their submissions, which we certainly tried to 
afford them.
    It is also not surprising that members of this Committee 
and some witnesses have also expressed concern that a 
reauthorized Section 5 might be open to successful challenge in 
the Supreme Court. For the Court has, over the last decade, 
found several civil rights laws unconstitutional--that is the 
Boerne case and its progeny--because they failed to satisfy 
what the Court has described as a ``congruence and 
proportionality'' standard.
    You are familiar with that case and the standards that have 
been set out, but I would like to make several points with 
respect to this line of cases and their potential impact on any 
challenges to reauthorization of Section 5.
    First, the Court has pulled back in recent years from what 
for a time appeared to be its unwillingness to uphold any civil 
rights legislation providing private damage remedies in suits 
brought against States. We have now seen in Tennessee v. Lane 
under the ADA and Hibbs with respect to the Family and Medical 
Leave Act that the Court can actually identify and uphold 
constitutional exercises of Congress' Section 5 powers. In so 
doing, the Court has recognized that Congress has to have wide 
latitude in determining between remedial legislation, which it 
is authorized to do, and substantive redefinition.
    Second, unlike the earlier laws struck down by the Court, 
these latter two have involved both a suspect classification--
women in the workplace--and a fundamental constitutional 
right--access to the courts. And given this new interpretation, 
I think that the Court should view what Congress does in 
reauthorizing Section 5 with a certain amount of deference. It 
is directed at eradicating racial discrimination, a suspect 
classification, and is addressed to voting, one of the most 
basic rights.
    Third, it is supported further by the fact that the Court 
has upheld the enactment of the Voting Rights Act and Section 5 
as model examples of Congress' exercise of its prophylactic and 
remedial constitutional powers. I think given this background, 
Congress should approach what Congress--the Court should be 
doing, I think, a deferential review of what Congress achieves 
in this regard.
    I have some brief comments and perhaps I can answer those 
in connection with questions.
    [The prepared statement of Mr. Days appears as a submission 
for the record.]
    Senator Leahy. On that, Professor Days, I get concerned 
because of the Supreme Court, City of Boerne and others, where 
they question whether we have overstepped. I understand and I 
accept that the Congressional power to enact anti-
discrimination remedies to enforce the 14th and 15th Amendments 
is at its highest level when addressing racial discrimination, 
protecting fundamental rights such as voting. Is that your 
understanding?
    Mr. Days. Exactly right, yes.
    Senator Leahy. And with the current standard of review by 
the Supreme Court, what do they have to--what kind of a 
standard are they going to apply if there is litigation? 
Assuming we renew the Voting Rights Act, what kind of standard 
are they going to apply?
    Mr. Days. Well, they might well start because it is a 
racial classification, in effect, as the need to show a 
compelling interest. But we have seen in the past that the 
Court has recognized that what Congress is doing in addressing 
discrimination in voting as responding to a great, great threat 
to the country, to the democracy, and, therefore, a compelling 
interest justifying what Congress is doing. And I do not see 
any reason why that should not carry over.
    For one thing, this legislation is a continuation of what 
Congress has been doing for many, many years. The record has 
been developed over that time. Without sanctioning in any way, 
even if I had the power to do so, what the Supreme Court has 
done in some of these other cases, because I think they are 
basically wrong, Congress was dealing with a number of issues 
that were unfamiliar to the Court, had not had the same type of 
long-term, very rich development of congressional understanding 
of what is and is not a threat to the democratic process.
    Senator Leahy. Thank you. Well, I asked that question 
because I just got handed a note that we may have a vote in the 
next 10 to 15 minutes, and we have these things that interfere, 
like having to actually vote on matters, in this case the 
immigration bill, and we will probably do some tag team. I 
assume Chairman Specter will be able to come back here after I 
go there.
    But, Ms. Thernstrom, let's go to your testimony, and then 
Mr. Derfner's and Mr. Persily's, and if we can keep somewhat 
within the time--your whole statement, of course, will be part 
of the record, and then we can go back to questions. But thank 
you for being here.

 STATEMENT OF ABIGAIL THERNSTROM, SENIOR FELLOW, THE MANHATTAN 
                 INSTITUTE, NEW YORK, NEW YORK

    Ms. Thernstrom. Senator Leahy, I am delighted to be here. 
Thank you for the opportunity to allow me to testify. Does that 
turn it on?
    Senator Leahy. The little button should show red. Try go. 
Every one of these Committee rooms has a different set of 
things.
    Ms. Thernstrom. Well, I started out by thanking you for 
allowing me to testify today. I am delighted to be here. And 
given the time constraint, I am going to focus only on one 
issue: the pernicious impact, in my view, of the pre-clearance 
provision as it has come to be interpreted and enforced--not 
the original provision but as it has come to be interpreted and 
enforced, or more precisely, the pernicious impact of race-
based districting on America's racial fabric.
    I understand how tough it is for Members of Congress to 
come out against a civil rights bill. Race is still the 
American dilemma, our great unhealed wound. Nevertheless, I am 
here to suggest that a vote to support a renewal of the 
temporary emergency provisions of the Act is a vote against 
racial progress and racial equality.
    The original Voting Rights Act was about 
disenfranchisement. This bill is not. It aims instead to 
maximize minority office holding by protecting minority 
candidates from white competition, for that is precisely the 
point of safe black and Hispanic districts. And, inevitably, 
providing such protection involves racial sorting, racial 
classifications, which have had such a long and ugly history.
    Today, by numerous measures, blacks and Hispanics are 
becoming integrated into mainstream American life, and yet 
simultaneously our Federal Government has signed on to what 
Justice Sandra Day O'Connor and others on the high Court have 
called ``political apartheid.''
    Just a bit of evidence on black integration. Today, 88 
percent of whites, 82 percent of blacks say they have good 
friends of the other race. That is a remarkable change. 
Moreover, less than a third of African-Americans live in census 
tracts that are over 80 percent black, and the rate of black 
suburbanization in recent decades has significantly outpaced 
that for whites. And yet blacks who move up the economic ladder 
and escape inner-city neighborhoods are not necessarily allowed 
to join their new friends and neighbors in a legislative 
district defined by common economic and other non-racial 
issues. For political purposes, they are stuck in the putative 
community they have worked so hard to leave. Their old district 
lines more likely than not chase them, the result being those 
familiar, bizarrely shaped, race-driven districts.
    American law contains important messages about our basic 
values, and these race-conscious maps send the wrong message. 
Implicitly, they seem to say: Blacks are different than whites; 
it is OK for the State to label them as such. Statements that 
say, in effect, blacks are X or blacks believe Y. They pose no 
problem.
    It is these messages that Justice Anthony Kennedy so 
strongly rejected in expressing concern that the State was 
assigning voters on the basis of race and, thus, engaging in 
``the offensive and demeaning assumptions that voters of a 
particular race, because of their race, think alike, share the 
same political interests, and will prefer the same candidates 
at the polls.'' In part he was quoting Justice Sandra Day 
O'Connor.
    The point can be put slightly differently. When the State 
treats blacks as fungible members of a racial group, they 
become, in Ralph Ellison's famous phrase, ``invisible men whose 
blackness is their only observed trait.'' But that view, the 
view that racial identity is defined by race, that group racial 
traits override individuality, is precisely what the civil 
rights movement fought so hard against.
    Race-based districts amount to a form of political 
exclusion masquerading, of course, as inclusion, and the 
overwhelming majority of Americans don't like them.
    In 2001, a national poll contained the following question: 
In order to elect more minorities to political office, do you 
think race should be a factor when boundaries for the U.S. 
congressional voting districts are drawn? Seventy percent of 
blacks, 83 percent of Hispanics said race should not figure 
into map drawing.
    I urge distinguished members of this Committee to be 
careful what they wish for. This bill may bring champagne on 
the day it is passed, but tears down the road. Racial 
classifications, however prettily they are dressed up, are and 
always will be the same old classifications that have played 
such a terrible role in this great and good Nation. They 
separate us along lines of race and ethnicity, reinforcing 
racial and ethnic stereotypes, turning citizens into strangers. 
Haven't we as a Nation had enough of that miserable stuff?
    One final word. Yesterday, the NAACP filed a suit in Omaha 
to block the creation of racially identifiable school 
districts. Explaining the purpose of the suit, an NAACP 
representative told the Associated Press, ``Segregation is 
morally wrong, regardless of who advocates it.''
    Senator Leahy. Ms. Thernstrom, I am not trying to cutoff 
your testimony, but either Mr. Derfner or Mr. Persily will not 
get to testify if--
    Ms. Thernstrom. OK. I have got one more sentence, Senator 
Leahy.
    Senator Leahy. All right.
    Ms. Thernstrom. Let's remember this applies to the way we 
draw our voting districts as well. Thank you for the 
opportunity to present these views.
    [The prepared statement of Ms. Thernstrom appears as a 
submission for the record.]
    Senator Leahy. Thank you very much, and your full statement 
will be made part of the record because you--
    Ms. Thernstrom. Well, I just--
    Senator Leahy. You raise a strong point of view that we--
    Ms. Thernstrom. Yes, I have got a much fuller statement in 
the record.
    Senator Leahy. This Committee wanted it to be heard.
    Mr. Derfner?

   STATEMENT OF ARMAND DERFNER, DERFNER, ALTMAN AND WILBORN, 
                   CHARLESTON, SOUTH CAROLINA

    Mr. Derfner. Senator Leahy, thank you for the opportunity 
to testify here and thank you for your kind words about my 
participation in earlier times.
    Yes, I have been involved with the Voting Rights Act since 
its beginning, and so I guess I have had a lot of experience 
with it, not only with litigating under it but also with living 
under it. I have lived in the South for most of the past 40 
years and in Charleston for about 35. I live there. I love my 
city. I love my State. I have married there. I have raised my 
children there. I belong to a congregation there. I play cards 
there. I root for baseball, football, and basketball teams 
there. And I know that we are good people. This Act is not a 
statement that the people in the covered States are evil 
people. They are friends of mine.
    The problem is that all too often people in power, the 
elected officials, the elected bodies, the legislatures, the 
city councils, take the opportunity, which is given them often, 
to rig elections and to deal with voting in discriminatory 
ways. All too often, they cannot resist the temptation to look 
back to the old ways to achieve certain political purposes and 
racial purposes.
    What I know from living in the South this long time is that 
the Voting Rights Act has made it better. There has been 
enormous progress. The Voting Rights Act has been an important 
part of that progress. I want to see my State, my city, and our 
surrounding areas be the best that they can be, and I think 
that the Voting Rights Act plays an important part in having 
that happen.
    We are here today to talk about the benefits and the 
burdens, and I understand that in that, in particular, you are 
going to be interested in recent times, not in ancient history.
    I wish I could say that it was all ancient history. If that 
were true, we would not be here today. We would not be here 
suggesting, as I do suggest, that the Act and the temporary 
provisions do need to be extended.
    What are the benefits? I think the prime benefit is one--
and here I have to disagree with Dr. Thernstrom--one of 
reaching the hearts and minds of our people. I think many 
people in the covered States, certainly in my State and my 
city, many people have internalized the idea that voting 
discrimination is wrong, that voting should be available in 
every way to all people in a fully equal way. And that is a 
lesson, a civics lesson, that comes through because of the 
Voting Rights Act, because Section 5 is something that does not 
just come up when there is a lawsuit now and then over some 
crisis issue, but it does come up whenever a governmental body 
wants to make some changes. It is reminded again--and I know 
from talking to officials, with lawyers, with city attorneys, 
with Attorneys General, it reminds them that that is a constant 
requirement that they think of it. So in that sense, that is 
the first benefit.
    The second benefit is that when that does not happen, when 
as, unfortunately, all too often the opposite happens, and 
elected officials take the opportunity to make a change that is 
discriminatory, that there is a remedy, a swift and effective 
remedy under Section 5 of the Voting Rights Act. And I will 
come back a little bit later on and talk about some examples. 
The one most often cited--and it is in my testimony--has to do 
with the Charleston County School Board, which is almost a 
textbook case of the value of Section 5.
    I want to talk about burdens for a minute. The 
administrative burden is not great. I know this because I have 
had the job of preparing submissions. I know very well lawyers, 
people in the Attorney General's office, in the city attorney's 
office who prepare submissions, it is not a burdensome task. It 
is a task that is typically a tiny reflection of the work, 
thought, planning, and effort that had to go into making the 
change to begin with.
    For example, even a polling place change, it is a small 
change, but the submission is also small, and typically the 
work involved in submitting a polling place change is less than 
the work it took to find a new polling place to begin with.
    The administrative process is swift. A change has to be 
pre-cleared within 60 days, and in some cases, it can be pre-
cleared almost overnight. For example, if there is a sudden 
need for a new polling place, that can be pre-cleared very 
swiftly if there is an election coming up. So the 
administrative burden is not great.
    I do not minimize the philosophical burden. I am not going 
to get into that debate because, obviously, that is what this 
whole Act is about. We are talking about a remedy that is an 
unusual remedy, brought on by unusual circumstances.
    I do want to talk about the burden, very briefly--
    Senator Leahy. Mr. Derfner, I have 5 minutes and 38 seconds 
to get to the floor. I would like to hear Professor Persily 
before I leave, and somebody else will come back to continue, 
and I have questions which I am going to submit for you.
    Mr. Derfner. OK. If I could have just one sentence, I would 
say--
    Senator Leahy. Of course.
    Mr. Derfner. Thank you.
    Senator Leahy. And we will take it out of Professor 
Persily's time.
    [Laughter.]
    Mr. Derfner. One sentence. I would like to respond to Dr. 
Thernstrom in one way, that the idea that the Act causes 
division to my mind is backward. And Professor Everett Carll 
Ladd, a noted political scientist, was asked that very question 
in testifying in a redistricting case some years ago, and what 
he said--and he was quite a conservative person philosophically 
and politically. He said, ``It is backward. The division is 
already there, and to say that districting causes division is 
like saying that a fever causes a cold.'' I think he had it 
right.
    [The prepared statement of Mr. Derfner appears as a 
submission for the record.]
    Senator Leahy. Professor Persily?

STATEMENT OF NATHANIEL PERSILY, PROFESSOR OF LAW, UNIVERSITY OF 
      PENNSYLVANIA LAW SCHOOL, PHILADELPHIA, PENNSYLVANIA

    Mr. Persily. Thank you for inviting me here today. I will 
keep to my 5 minutes, and I want to give you the perspective of 
someone who works under the Voting Rights Act and who draws 
lines. If you have questions about the constitutionality of the 
Act, I can speak as a law professor, or about the politics of 
this, I can speak as a political scientist. But specifically I 
want to talk about three things: the first is where I think 
that Section 5 has been most successful, and that is at the 
local level; the second is what does the ``ability to elect'' 
standard that is part of this law mean; and then, finally, I 
want to urge some broad thinking on the Voting Rights Act or 
see this Act as an opportunity for a more substantive 
discussion about the right to vote.
    First, I don't think there has been enough testimony here 
in the Senate about the effect of the Voting Rights Act and the 
pre-clearance process on local jurisdictions, which is what 
most of the DOJ pre-clearance submissions are about. And I 
think here of the inglorious issues like annexations and the 
small things that happen--which are not notorious and where the 
partisan stakes are seen as relatively low. Often those are the 
areas where the Section 5 pre-clearance process is most 
important. When you get to issues such as statewide 
redistricting plans, then the potential for partisan infection 
of the pre-clearance process grows and the overhanging 
deterrent of Section 2 often proves to be more important.
    Second, let me talk a little bit about this ``ability to 
elect'' standard that is in the bill, what is known in the 
business, I guess, as the Ashcroft fix.
    First of all, let's just review for a moment what Georgia 
v. Ashcroft was about. It was about the cracking of the 
minority community into several districts, or at least that was 
the way that the DOJ perceived it. In particular, you had 
districts that were hovering around 50 percent minority that 
were then reduced and, therefore, the Supreme Court said that 
you could tradeoff influence districts with ``ability to 
control'' district. The risk of Georgia v. Ashcroft is that it 
would not then apply just to evenly balanced districts that are 
around 50 percent but, rather, under the cloak of influence 
districts, a jurisdiction would then break up a cohesive 
minority community into much smaller districts in which they 
really had no influence at all.
    One point that I want to make sure is clear in the 
legislative history here is that the Ashcroft fix, what is 
known as the ``ability to elect'' standard, prevents both 
cracking of the minority community, retrogression by the way of 
dispersing them among too many districts, as well as packing 
them, because I think that over the 25-year proposed tenure of 
this bill, actually packing and overconcentration of the 
minority community are actually going to prove to be tactics 
which are more often used to dilute the effect of minority 
voting. And so let's just make sure that the legislative record 
is clear that the bill prevents overconcentration as well as 
excessive dispersion of the minority community.
    And then, second, what do we mean by the words ``ability to 
elect''? They are not code for something like majority-minority 
districts. In some areas of the country, in order for the 
minority community to elect its candidate of choice, it is 
going to be substantially more than 50 percent; in some areas 
it is going to be substantially less.
    What is going to be required of the Department of Justice 
or the U.S. district court when they are reviewing these pre-
clearance submissions is to make a pretty sensitive inquiry 
that looks at each region that is at issue in the pre-clearance 
process and find the extent of racially polarized voting in the 
jurisdiction. They will need to ask: To what extent are whites 
willing to vote for the minority candidate of choice? What is 
the incumbency status of the district? Because what is meant by 
the ability to elect will depend on whether the district is an 
open seat or whether it is one in which there is an incumbent 
already there.
    They are going to have to know the rates of registration 
and turnout and citizenship and eligibility in these districts, 
as well as whether the minority community is going to be able 
to control the primary, and what the potential for cross-racial 
coalition building is.
    I mention these factors so that we are not under the 
illusion that for some reason this bill is going to freeze the 
minority percentages in districts for the next 25 years. It 
prevents both, as I was saying before, the excessive dispersion 
or cracking of the community as well as the overconcentration 
or packing of them. But you cannot make generic conclusions 
about how it is going to operate in the abstract. It requires a 
very sensitive inquiry on the ground.
    Let me conclude, though, with just a plea that this Act 
really be the first step toward eliminating what are the major 
barriers to enfranchisement and participation for voters of 
color in the U.S. This Act, for either political reasons or the 
constitutional overhang that always hangs over these laws, does 
not deal with issues such as felon disenfranchisement or 
partisan administration of elections or the voter ID 
controversy, and I understand why. But this discussion over 
voting rights in this country would be anemic if we did not at 
least talk about those issues and try to solve those as well.
    [The prepared statement of Mr. Persily appears as a 
submission for the record.]
    Senator Leahy. Thank you very much. You did do it on time.
    Each of you could spend an hour or more with your expertise 
and the issues involved. I am going to just recess until the 
Chairman or someone else comes back. And as I said earlier, I 
also want to get into the question--not here, but at another 
hearing--on the problems of languages, which has become of a 
significant one.
    Thank you. We will stand in recess for a few minutes.
    [Recess 10:10 a.m. to 10:35 a.m.]

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE 
                            OF UTAH

    Senator Hatch [presiding]. We will resume. I apologize. I 
hadn't planned on coming to this hearing, but I didn't want to 
leave such a distinguished panel without an opportunity for all 
of you to express your viewpoints on this very important set of 
issues. They let me know if I didn't come, we might not get all 
of the things in that we should.
    Mr. Gray, I have such respect for you, as you know, and for 
all you have gone through in your life. I just want you to know 
we are honored to have you here.
    And Drew Days, one of the most respected civil rights 
lawyers in the country and a wonderful professor.
    Mr. Days. It is good to see you, Senator.
    Senator Hatch. I remember the days when you were here and I 
was kind of a difficult person for you. I kind of feel badly 
about that, but you are a good man. Even though we may differ 
from time to time, I think a lot of you and your honesty and 
your opinions.
    There is no question that Abigail Thernstrom is one of my 
favorite people. She is an honest, very tough, smart and good 
human being who really has tried to resolve problems in these 
areas, but who is a true intellectual in these areas, as are 
you, Professor Days.
    Ms. Thernstrom. Thank you so much, Senator Hatch.
    Senator Hatch. We are grateful to have you here. I don't 
know you other two, but we are grateful that you have taken 
time out of, we know, busy schedules to be here and to help us 
to understand this.
    Mr. Derfner. Thank you, Senator.
    Senator Hatch. You have all given your statements, so let 
me just ask some questions. We will start with you, Mr. Gray, 
and go across in each case, unless I have specific questions to 
one or more of you.
    I might just preface it with this. I think, Drew, you would 
remember--if you don't mind me calling you by your first name 
from time to time.
    Mr. Days. Not at all, Senator. It is a pleasure to see you.
    Senator Hatch. Yes, a pleasure to see you. I think you 
remember back--and I know Ms. Thernstrom will remember this--
when we fought these battles back before, I was very concerned 
about putting the effects test in Section 5 and I made every 
argument I could against doing that. And when I lost, I voted 
for the bill because I consider the Voting Rights Act the most 
important civil rights bill in history. There are others that 
are certainly very, very important and maybe just as important, 
but not in my eyes. In my eyes, it is the bill that 
enfranchised African-Americans in this country, and other as 
well.
    I won't go into all the arguments that I made then, but I 
have to say that some of the arguments I made then have come 
true. I am very concerned about this. I am going to vote for 
the bill, no matter what it is in the end, because I do 
consider it so important, but this issue about Article 5 is 
important to me.
    No one can dispute the fact that Section 5 has been 
tremendously successful in preventing discriminatory behavior 
in covered jurisdictions. Indeed, minority voter registration 
and turn-out rates in covered jurisdictions meet or exceed 
nationwide rates and those in non-covered jurisdictions as a 
whole.
    Given the tremendous progress that Section 5 has produced--
I am asking this of each of you--do you support expanding its 
scope to other localities where racial discrimination or racial 
block voting are proven to be problems?
    Mr. Gray?
    Mr. Gray. I didn't quite hear your--
    Senator Hatch. Given the tremendous progress that Section 5 
has produced, do you support expanding it to other communities 
or localities where racial discrimination or racial block 
voting are proven to be problems? Would you expand it over what 
the current law is?
    Mr. Gray. Well, what I believe, Senator--and what I set out 
in my statement didn't go into all the detail, but it is there. 
I gave about seven or eight examples of situations which have 
occurred in Alabama from, say, 1990 through 2000 where we are 
still having real serious problems, where there have been 
objections.
    I am the first to say that we have made a tremendous amount 
of progress. We had no elected officials before. We now have 
over 800 elected officials, but the only reason we have them is 
because of the Voting Rights Act in the first place, and, 
second, proper courts interpreting the Act.
    I don't think we should use the successes that we have 
obtained under the Act and then say that we don't need it. I 
believe that the deterrent, the fact that it is there and the 
fact that I think it works both ways--for the persons who would 
like to have something pre-cleared or like a new procedure to 
come into effect, they can have someone who would objectively 
review and if, based on the law, there are no problems with it, 
then they are protected not legally, but it would mean that a 
person may think two or three times before suing if they know 
the Justice Department has approved it.
    On the other hand, for those persons who need some help--
and we still have a majority of the African-Americans in 
Alabama relying upon white persons basically for their 
livelihoods, and there are still some areas where they really 
still have some real problems about raising issues themselves 
for what may be reprisals.
    So if there is some other thing or some mechanism where you 
must go and let an objective person look at it, it protects 
both parties. And I just think that the deterrent is so 
important, and what we would lose if we discontinue it as to 
what we have gained and what we still stand to gain outweigh 
the other and I think we should continue to have it.
    Senator Hatch. Well, thank you, Mr. Gray.
    Mr. Days.
    Mr. Days. Senator, I don't think that extending Section 5 
beyond the covered jurisdictions at this point can be 
justified. As we all know, Section 5 is very strong medicine, 
and it was medicine that Congress thought was necessary, given 
the long and really terrible history of discrimination against 
blacks with respect to voting.
    Section 2 is available to deal with other parts of the 
country, but I think for our purposes in thinking about the 
reauthorization of Section 5, the fact that there is evidence, 
based upon what I have seen of the record already before you 
and before the House, of discrimination based upon race in 
those very jurisdictions that were covered by Section 5 to 
begin with--it seems to me that that is one of the core 
problems that Congress has to really grapple with this time 
around.
    Senator Hatch. Would you reduce the number of jurisdictions 
in any way? Would you find some where Section 5 would no longer 
apply?
    Mr. Days. Well, there is a bail-out provision and I think 
there is some question about why the existing bail-out 
provision has not been utilized. I am not sure I know, but if I 
think back to the school desegregation situation, there were 
circumstances where the court would perhaps give school 
districts more latitude in student assignment.
    And I would go to the superintendent or the lawyer for the 
school district and she would say, no, no, no, we like what we 
are doing; we like the fact that we have a court order that 
requires us to do this and that because it provides stability. 
Maybe that is an explanation for why the current bail-out 
provision is not being utilized.
    As you know far better than I do, in 1982 that was a matter 
that occupied a great deal of time of the Congress trying to 
figure out what would be a fairer way of dealing with this 
particular issue.
    Senator Hatch. Thank you.
    Ms. Thernstrom.
    Ms. Thernstrom. Well, in the first place, Senator Hatch, I 
still, as I have done before, want to thank you for your role 
in 1982, very heroic. And the arguments you made there turned 
out to be very, very prescient. You got the picture right, and 
your basic point was that the results test which, of course, is 
different than the effects test in Section 5--the results test 
in Section 2 was going to turn into a mandate for proportional 
racial and ethnic representation. You were right.
    My old friend here, Armand Derfner, on my left, said at 
those hearings, as you will recall, that it would be the very 
unusual jurisdiction, the jurisdiction in which racial 
considerations absolutely overrode any other considerations in 
the political process; only that kind of outlier, as it were, 
would be affected by Section 2. Indeed, that has not turned out 
to be the case. We were also promised that Section 2 would be 
hard to win. In fact, they are hard to lose.
    I think both Section 2, as originally envisioned, and 
Section 5, the pre-clearance provision, have been horribly 
distorted in the intervening years. When people talk about the 
transformation, the number of black office-holders today, the 
level of black political participation, in general, well, yes, 
that is due in part to the original Voting Rights Act. I very 
much celebrate that original Act.
    But we have lived in the last 40 years through an 
incredible transformation in racial attitudes in this country, 
and so what you are looking at in terms of race and politics 
throughout the country reflects that transformation in racial 
attitudes in a broader sense, not simply the impact of the 
Voting Rights Act.
    Pre-clearance was an emergency provision. It was really 
analogous to a curfew put in place after a riot and, you know, 
when the emergency was over, it was supposed to be lifted. And, 
of course, originally it was for 5 years only. It was 
considered so constitutionally extraordinary that nobody 
envisioned in 1965 even having it extend for ten years.
    That emergency was over a long time ago. As Rick Hazen 
elects to say, who is on the political left, I should say, Bull 
Connor is dead. And it seems to me it is extremely hard today 
to say that there is--in terms of minority political 
participation or by any other measure, extremely hard to say 
there is a distinction between the covered jurisdictions and 
the non-covered jurisdictions and the real voting problems are 
in the covered jurisdictions.
    I mean, even in the 2000 election when there were a lot of 
charges about black disfranchisement and Spanish 
disfranchisement in Florida, they were not in the Florida 
counties that were covered by the Voting Rights Act. In 2004, 
the complaints were not about covered jurisdictions, the 
complaints about Ohio, and so forth.
    I think the distinction between the covered and non-covered 
jurisdictions in terms of the problems that we have had have 
long ago been erased. And, no, I would not extend Section 5, 
particularly because of the way it has been distorted, to the 
whole country. I would sunset Section 5, as the original 
framers of the Act envisioned. I know that is not going to 
happen, but my role here is to say--I am not a politician and 
my role is to say what I believe should happen.
    Senator Hatch. Well, thank you.
    Mr. Derfner.
    Mr. Derfner. Senator Hatch, I am happy to be here. I agree 
that Bull Connor may be dead, but I think unfortunately some of 
his relatives live on. Mr. Gray talked about the recent history 
of Section 5 in Alabama. I think maybe it is the same in South 
Carolina. My testimony talks about we have had nine separate 
objections under Section 5 to discriminatory enactments in 
South Carolina just in the last 5 years. Most of those have 
been State legislation, not simply some city or county or 
school board doing something.
    I had the opportunity to debate with you a little bit back 
in 1982 about purpose versus effect.
    Senator Hatch. Yes, you did.
    Mr. Derfner. Most of the objections have really dealt with 
situations which, when you look at them, really are purposeful. 
Our Governor not long ago made a statement that he didn't 
expect to see a statewide black office-holder ever. Then he 
backtracked a little bit and said, well, not in the foreseeable 
future. That is our Governor, former Congressman Mark Sanford.
    One of the objections just took place less than 2 years ago 
to the Charleston County School Board. We had just won an 
arduous case against the Charleston County Council in which not 
only the district court, but the Fourth Circuit, in an opinion 
by Judge J. Harvie Wilkinson, found discrimination in the 
Charleston County Council system.
    As soon as that case was over, the State legislature 
adopted a bill to change the county school board to the same 
system that had just been condemned in the county council. The 
reason they did that, frankly, was because under the former, or 
still in existence system, five blacks had been elected out of 
nine seats in the years 1998 to 2000. So the legislature 
decided it was not going to have that anymore. That bill was 
objected to by the Justice Department--probably the clearest 
showing of why Section 5 is needed.
    Let me just add one last thing. One of the things that 
tells me that we still have too much of a disease is an exhibit 
I attached to my testimony. This is an ad that a white 
candidate for probate judge in 1990 published showing a picture 
of his opponent. I know as a politician you don't typically do 
that, but he wanted to make sure that everybody could see that 
his opponent was black. We still see that routinely.
    Congressman James Clyburn had that happen to him in 1992 
and 1994. It happened in another election that I know of in the 
year 2000. Race sells in South Carolina, and that is why we 
need something like the Voting Rights Act, Section 5.
    I would like to give you a specific answer to your original 
question. There is a provision in the Voting Rights Act--I 
think it is in Section 3--that does allow a court, under a 
sufficient showing in a particular case, to say that as one of 
the remedies it will order a pre-clearance type remedy for that 
jurisdiction as a remedy for that particular case. So that may 
be a way of expanding a Section 5 type remedy in the specific 
case where it is called for without a wholesale expansion.
    Senator Hatch. Thank you.
    Mr. Persily.
    Mr. Persily. I do support expanding Section 5, in theory, 
to other jurisdictions. The difficulty is with the cost, then, 
that the structure would impose on the newly covered 
jurisdictions. But also there is a hydraulic relationship 
between the coverage formula and the other parts of the bill 
with respect to the constitutional analysis.
    So I think there is real concern that the broader the 
coverage formula, the more likely the Supreme Court might end 
up striking it down. So we are in a sort of difficult position 
right now. It is abundantly clear that there are voting 
problems in non-covered jurisdictions of the type that 
Professor Thernstrom was talking about. In many ways, the most 
notorious national problems have been outside the covered 
jurisdictions. So that calls for national legislation to 
address those problems.
    Now, that to some extent is a separate argument than 
whether the covered jurisdictions should be expanded or not, 
and then we have to think of what would be the trigger, and 
what would be the kind of inquiry that we would go through as 
to which jurisdictions should be covered.
    It has historically been the case that the trigger in 
Section 5 has been this dual-pronged trigger where Congress has 
been providing some measure of the probability that a racially 
disparate impact with respect to voting is going to develop. It 
is very difficult right now to figure out what that sort of 
neutral trigger is going to be.
    In my testimony, I try to go through a little bit of this, 
but just adding jurisdictions sort of willy nilly is not going 
to cut the mustard, and so we have to think of what kind of 
formula would capture those types of jurisdictions that we 
think are most likely to erect these kinds of barriers.
    Ms. Thernstrom. Senator Hatch, can--
    Mr. Gray. Senator Hatch, may I mention one other thing, 
speaking of change of attitudes, but I yield to--
    Senator Hatch. No. We will go to you first, Mr. Gray, and 
then we will go to Ms. Thernstrom.
    Mr. Gray. I would really like to believe that there has 
been a change of attitudes, but let me give you three examples 
of long-running cases in Alabama which are still there.
    We celebrate the 52nd anniversary of Brown v. Board of 
Education. Under those cases, in 1963 I filed the case of Lee 
v. Macon, which was a single school district expanded to all of 
the school districts in Alabama not then under court order, 99 
of them. My boys were very small then. We still have some 
elementary and secondary school districts in Alabama that have 
not reached a unitary system. Fred, Jr. was in Dothan a week or 
so ago dealing with one.
    A second example: Back in 1985, they had a test for 
teachers and the test was found to discriminate against 
African-Americans. The State of Alabama decided, rather than to 
come up with a test that would be fair to everybody, not to 
have teacher testing. They didn't have it until the Congress 
passed what is known as the No Child Left Behind Act. Then we 
had to all come back, and the case is still going on. They are 
now designing a teacher testing that is non-discriminatory.
    Alabama still has the case of Knight v. State. It has been 
going on since 1985. All of the institutions of higher learning 
in the State still have not gotten to the point where all the 
vestiges of racial discrimination are done away with.
    I think with that kind of record that is still here, it is 
compelling that the Voting Rights Act be extended.
    Senator Hatch. Thank you.
    Ms. Thernstrom.
    Ms. Thernstrom. Thank you. I wanted to answer, but I will 
add something to it, as well. I want to talk about the trigger 
that Professor Persily raised. The trigger for coverage today 
rests on voter registration and turn-out, and it is really 
turn-out that counts, since it trumps registration.
    Voter turn-out in 1972--that is absurd in terms of 
identifying the jurisdictions that today require coverage, if 
any. In 1965, that trigger of less than 50 percent total 
registration and turn-out was designed to precisely hit the 
States that everyone knew needed to be covered, and it worked. 
The 50-percent figure would have been changed if it hadn't so 
precisely targeted the right jurisdictions. To be relying as a 
trigger today for coverage on 1972 turn-out figures makes no 
sense at all. And if we were to use the turn-out figures for 
2004 today, I believe only two States would be covered--
California and Hawaii.
    People are coming up with anecdotes. I am a social 
scientist. I am sure a lot of their anecdotes are right. 
Anecdotes don't tell me what I need to know. I want rigorous 
data, and that is what any consideration should rest on.
    In terms of things like teacher testing, well, yes, teacher 
testing has a disparate impact on minority applicants. Do we 
want teachers in our schools who really do not know their 
subject? The answer to teacher testing is to start in 
kindergarten. I mean, we are talking here about the racial gap 
in academic achievement. The answer to that is not to abolish 
tests, is not to do away with No Child Left Behind or State 
teacher tests. It is to start in kindergarten teaching the 
kids. That is really not so hard to do. We are not doing it. It 
is not so hard to do; it is doable.
    Finally, those who worry about the disappearance of Section 
5--there is Section 2, which is the permanent. There is the 
14th Amendment, obviously permanent. They aren't going away. 
Plaintiffs can rely on them. I cannot understand the argument 
against simply trusting that the permanent provisions of the 
Voting Rights Act will stop anything that remotely resembles 
disfranchisement.
    Mr. Days. Senator Hatch, I want to make a couple of brief 
comments. To call examples that are quite concrete of 
violations of the Voting Rights Act or failure to comply with 
the Voting Rights Act as anecdotes, I think, is really to miss 
the point that I think Congress should be focused on, and that 
is that these jurisdictions were properly identified and 
covered in 1965, and the question is what is going on now.
    Now, Professor Thernstrom wants to look at registration or 
actual voting figures, but that doesn't tell the whole story 
either.
    Ms. Thernstrom. I wasn't suggesting it did.
    Mr. Days. I think that to the extent that Congress really 
wants to come to an understanding of what it would mean to lift 
Section 5 and release these jurisdictions, I think the so-
called anecdotes go right to the very heart of the matter.
    The other thing is that the fact that the trigger is not 
really contemporaneous, if you will, and there are other parts 
of the country that--as she said, California and Hawaii might 
not make the grade, but we are really not talking, I don't 
think, about extending Section 5 to the entire country. I know 
that was one of your questions, but the issue is what about the 
current coverage of Section 5? Does it make sense? Is it 
constitutional? Will it continue to promote the objectives that 
the original Section 5 was designed to promote? I think the 
answer is yes to all of those questions.
    By the way, on the bail-out issue, there are 
jurisdictions--there are apparently 11 jurisdictions in 
Virginia that have taken advantage of the bail-out provision. 
Any application that has been submitted has not been denied, 
and so we do have some evidence of it working in real time. The 
question of whether it can be used more often is something that 
I know the Committee wants to look at.
    Senator Hatch. Mr. Derfner.
    Mr. Derfner. Senator, I would say one thing about the 
notion that a Section 2 case is an adequate substitute for a 
Section 5 pre-clearance requirement. I don't mean to pull rank 
as a lawyer, but I think you were a lawyer back in your earlier 
life.
    The notion that a Section 2 case, which is a very arduous 
case requiring enormous expert testimony, enormous time, is an 
adequate substitute--those are not easy cases. In the 
Charleston County Council case, it took over 3 years and the 
county alone spent over $2 million on that case.
    The Administrative Office of U.S. Courts ranks different 
types of cases by complexity and Section 2 cases, and voting 
rights cases in general, have among the highest rating. They 
are up there with securities cases and antitrust cases in the 
complexity and time requirements rating. A Section 2 case is 
not a picnic. It is one of the hardest things to do that there 
is, and Section 5 was designed exactly to avoid that kind of 
difficulty.
    Senator Hatch. This has been very interesting to me.
    Have any of you read the Stuart Taylor article this last 
week or so?
    Ms. Thernstrom. I have.
    Mr. Persily. Yes.
    Senator Hatch. Stuart is certainly not a Republican, I 
don't believe.
    Ms. Thernstrom. No, he is not. He is a good friend of mine, 
but he is not a Republican.
    Senator Hatch. No, and I mean he is certainly not a 
conservative, but he is very, very intellectually compelling in 
his writings. I mean, I have really enjoyed them over the 
years. I have agreed with an awful lot of what he says. He 
comes down pretty hard on Section 5.
    If I read it correctly--I am extrapolating from it--I think 
he believes that some of the current partisanship in Congress 
comes from the fact that they have gerrymandered various 
districts to accommodate people of color, and that the Congress 
has gotten more and more left because of that. And because they 
have gerrymandered the districts--and maybe I am misconstruing 
that--and have gotten people to the left, the rest have gone to 
the right, or a lot of them have, to the point where his 
suggestion, if I read it right--I just read it hurriedly a 
while back--his suggestion was that if we didn't do that, 
gerrymandered the districts to accommodate African-Americans, 
in those districts you would have more moderate people and on 
the Republican side you would have more moderate people coming 
to the Congress.
    It is a pretty poor explanation, I know, because I can't 
remember the whole thing, but I suggest you read that and give 
us your opinions of his article because I think it is a pretty 
interesting article.
    I personally believe that we have got to do something about 
the total partisanship that is going on here in Congress. I 
mean, it is just awful. The Democrats don't know how to act in 
the minority, and sometimes Republicans don't know how to act 
in the majority. We had been in the minority for so many years, 
and vice versa when the switches occur.
    I have been here 30 years and I have seen some real 
changes. In the early years, yes, we had knock-down, drag-out 
battles, but there wasn't the bitterness and the partisanship. 
There has always been partisanship, but not like it is today, 
and as somebody who has lived through it all, I can truthfully 
say that.
    Now, he kind of attributes some of that--and you can't 
attribute all of it, of course--to some of the interpretations 
of the Voting Rights Act. I am not saying he is right. I am 
just saying it is an intellectually interesting article in the 
National Journal, and you might want to read that and write to 
us and give us your opinions on that.
    Look, I want to do what is right. I have always wanted to 
do what is right. I may have missed it a few times in the past, 
but as a general rule I think I have tried to do what is right 
in these areas. I have always tried to do what is right, but I 
am concerned.
    We all know that Section 5 can be very onerous and 
burdensome to certain States, but you make a pretty good case, 
and some of the rest of you do, that just the fact that it is 
there keeps things level and straight. That may be a compelling 
argument, but I would like you to look at Stuart Taylor's set 
of arguments.
    Mr. Persily. Could I respond to that, because I did read 
it? I think that is a very important point to raise.
    Senator Hatch. Was I mischaracterizing it?
    Ms. Thernstrom. No, no. You have got it right.
    Mr. Persily. I think that is right, but that is why it is 
very important that the legislative history on this bill be 
quite clear that it is not sanctioning the over-concentration 
of minority districts; that it does require that for the next 
25--
    Senator Hatch. That is what has practically happened, 
according to Taylor.
    Mr. Persily. Well, it is sort of an empirical question as 
to which areas of the country we are talking about.
    Senator Hatch. Yes.
    Mr. Persily. In a sense, Congress is changing the standard 
here with the ability-to-elect language that it is putting into 
the law. So I think it is important that everyone who is voting 
on this bill recognize that this is not freezing in place the 
minority percentages that are in these districts for the next 
25 years, nor is it giving its blessing to the excessive over-
concentration of minority districts.
    It is not even code for saying majority/minority districts. 
Rather, it requires a much more sensitive inquiry as to the 
opportunity and the ability of minorities to elect their 
candidate of choice in these covered areas. I think it is 
important that that be part of the legislative history because 
we don't want this law to be interpreted in such a way that for 
the next 25 years it leads to over-concentration and excessive 
packing, which itself would be detrimental to the interests of 
minority voters.
    Senator Hatch. Did you want to say something?
    Ms. Thernstrom. I was just going to say, Senator Hatch, 
that you have got Stuart Taylor's argument precisely right.
    Senator Hatch. Well, I am concerned about that.
    Ms. Thernstrom. And, you know, he joins me. I concentrated 
in my testimony earlier today on the whole question of whether 
we are creating a system of what Justice O'Connor called 
political apartheid, whether, you know, we aren't perpetuating 
the old, familiar, ugly racial classifications, racial sorting 
in America. And Stuart Taylor very much joins me in that 
concern.
    As much as I respect Professor Days here, the fact is two 
things. One, on the trigger, my point is simply that the 
existing trigger makes no sense and that if it were revised, if 
it were updated to include turn-out figures for 2004, you would 
be left with only two States covered. I mean, we simply do not 
have the same problem we had in 1965 when the trigger was 
designed, or in 1972 when--well, it was the 1975 amendments, of 
course, but it relied on the 1972 turn-outs.
    A number of panelists assume that Department of Justice 
objections indicate something very bad going on. My view is 
that because the legal standards have become so wacky under 
Section 5, an objection doesn't necessarily mean that something 
bad has gone on, but simply that a jurisdiction often has 
failed to draw the maximum number of minority/majority 
districts that it could have. And then the word ``purpose'' is 
labeled to that failure to maximize the number of safe minority 
districts. That, to me, is a gross distortion of the original 
Act.
    Mr. Derfner. That might be a gross distortion of the 
original Act if it were going on, but I challenge Dr. 
Thernstrom to come to South Carolina. I challenged her once to 
come to Charleston and I think she did.
    Ms. Thernstrom. I did.
    Mr. Derfner. We found some different answers even then, but 
I challenge her to come to South Carolina and look at these 
objections and see if the fears that she is expressing really 
hold up.
    I mean, the trigger was designed to identify jurisdictions 
that had a sickness in those days. The sickness was reflected 
in literacy tests, understanding tests, moral character tests. 
And the way we know that those were working was that the turn-
out was so low. That is why, for example, at the original time, 
a State that had a literacy test and still had a high turn-
out--that was an indication that that literacy test--
    Senator Hatch. But do you still think that same sickness 
exists?
    Mr. Derfner. The sickness doesn't exist in that same form, 
but what Mr. Gray and I have been talking about with regard to 
our particular States is that there is too much of a hang-over 
and that is why Section 5 dealing with a new variety of problem 
or what is sometimes called dilution, which I think is really 
an abridgement, is still there.
    Let me give you an example about the Charleston County 
School Board. I hate to keep coming back to that one example 
because we have got plenty others, but 2 years ago that was 
State legislation that was clearly discriminatory purpose. 
Everybody knew it.
    In the Charleston County School Board back in the early 
days, the old days of the 1960's or around then, blacks 
couldn't vote at all. Then when blacks started voting a little 
bit, actually, in the late 1950's and the early 1960's, what 
the legislature did was to change the rules. At that time, I 
think there were nine school districts in Charleston. In six, 
the population was majority white. In three, the population was 
majority black; I think St. James Santee, District 20 downtown, 
and District 9, Johns and Yonge's Island.
    So what the legislature did was to change the rules so that 
in those three districts, the right to vote was taken away. In 
those three districts, the school board members would be 
appointed, not elected, whereas in the remaining districts, the 
white-majority ones, they still got to elect. That stayed the 
law until the mid-1970's.
    Once that went away, they went to at-large elections. Those 
at-large elections have been disputed back and forth, but they 
are still in existence. But then when blacks in 1998 achieved 
five members out of nine on the school board, that is when the 
attempt to change the school board elections by putting in a 
majority requirement to make basically--I think everybody was 
clear that it was to make certain that blacks could not win a 
significant number of seats. That came in. The legislature 
passed that in, I think, 2000 or 2001.
    It was vetoed by the then-Governor. They came back again in 
2003. Directly after the Federal courts had thrown out a 
similar system for the county council, they came back and 
passed it again. At that time, then-Governor Sanford, who was 
the new Governor, let it become law. He still refused to sign 
it. He wouldn't sign the bill. He let it become law. At that 
point, the Department objected to it. So what you have here is 
a change over a period of years in the types of tactics or the 
types of mechanisms, but the need is still there.
    Ms. Thernstrom. The last I knew, purposeful discrimination 
was forbidden by the 14th Amendment.
    Senator Hatch. Well, you are right.
    Let me just say this: I would like each of you to read that 
article. I will put it in the record. It is a May 13th, this 
last Saturday, 2006, article, called ``More Racial 
Gerrymanders.''
    One thing he says in here, and then I will yield to my 
colleague, ``So effective have other Voting Rights Act 
provisions been that little evidence exists that most 
governments in the nine covered States are more hostile to 
minority voters than are governments that the law doesn't 
cover. Indeed, there is little evidence of systematic 
discrimination by any State government, despite a huge research 
effort by the civil rights lobby to find and magnify such 
evidence.'' That is just one quote out of here that bothered 
me.
    He also says on the front page of this, ``Second, many 
Republicans also believe, perhaps incorrectly, that drawing so-
called majority/minority urban districts for black and Hispanic 
Democrats will bleach the surrounding suburban districts and 
thus help Republicans beat white moderate Democrats there. That 
was the result of the racial gerrymanders of the 1990's. The 
number of very liberal black and Hispanic Democrats in the 
House went up. The number of more moderate white Democrats went 
down, and this helped Republicans take and keep control of the 
House. This was good for black and Hispanic politicians. It was 
not so good for black and Hispanic voters,'' at least from 
Stuart Taylor's point of view.
    Drew, go ahead.
    Mr. Days. I just wanted to say that I have a lot of respect 
for Stuart Taylor, as well. He is a straightforward and I think 
a very honest and incisive reporter.
    Senator Hatch. Yes. I have a lot of respect for him.
    Mr. Days. I don't have the exact figures, but my 
understanding is if we are talking about creating this tension 
and politicization and partisanship, if one looks at the 
congressional Black Caucus members' districts, one finds that 
they are not max-black districts, that they actually reflect a 
combination of white and black and perhaps other racial groups 
in those districts. So they are models. That is the good side.
    The bad side is that we have--and I think the record up to 
this point establishes that we have significant problems of 
racially polarized voting. That is one of the major problems 
that needs to be addressed and continues to bedevil what 
otherwise would be, I think, a very happy and very positive 
movement toward greater racial interaction and cooperation.
    Senator Hatch. Well, thank you.
    Senator Durbin, I am sorry to take so long.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thank you, Mr. Chairman. I want to welcome 
our distinguished panel, and especially Mr. Days and Mr. Gray, 
for being here today.
    Mr. Gray. Thank you, Senator.
    Mr. Days. Thank you.
    Senator Durbin. I know today is the 52nd anniversary of the 
Brown v. Board of Education decision. That case perhaps more 
than any other in our history demonstrated the power of the 
Supreme Court in safeguarding civil rights. The Voting Rights 
Act, perhaps more than any other law in our Nation's history, 
demonstrated the power of Congress to safeguard the civil 
rights of all Americans. So, Mr. Chairman, this is a 
particularly important and historic set of hearings that we are 
having.
    Mr. Gray, you have lived in Alabama for many years. We 
would all agree that the State of Alabama has changed. I can 
recall my friend, John Lewis, taking me for a walk across the 
Edmund Pettus Bridge a couple of years ago. It was the first 
time I had ever been in Selma. I recall as a college student 
wanting to be there, but I couldn't go, and regretting it for 
the rest of my natural life.
    We talked about what that meant to America and what it 
meant to him. We talked about Judge Frank Johnson, whom 
Congressman Lewis credits with being one of the heroes of the 
civil rights movement who needs more recognition for giving 
legal opportunities for the march to even take place.
    How do you think the voting rights of African-Americans 
would be affected in Alabama if Congress failed to reauthorize 
Section 5 of the Voting Rights Act?
    Mr. Gray. I think there is a very serious chance of our 
losing some of what we have gained, and I say that because--and 
in my prepared statement, I set about seven or eight specific 
situations that the Justice Department objected to, and as a 
result of that, to have African-Americans serving.
    Incidentally, Senators, we have with us Mr. T.C. Coley, 
from Tallapoosa County. In my statement, I talk about the fact 
that what they did there was to preserve an incumbent white and 
deny African-Americans the right to have a district where they 
could select persons of their choice. And there was an 
objection and as a result of that, T.C. Coley now serves in 
that capacity and has served on the county commission for 2 
years, and even has served as chairman. And I think every 
member of that commission--and he is only one of four--feels 
that he plays a major role.
    I think, and I mentioned it earlier, that what we have been 
able to accomplish is so important that we shouldn't take those 
gains and now say because you have gained it, we are going to 
use that to say we don't need it.
    The deterrent effect of it is so important, I think that 
the administrative details that these local officials and all 
of the local officials now who are familiar with what they need 
to do as far as pre-clearance is not difficult to do. It is a 
small administrative act. And if you take and weigh the 
benefits we have obtained by having the Act as against the 
possibilities of what we will lose if we don't extend it, I am 
afraid that the great heroes that we have--including Frank M. 
Johnson in my first case, civil rights case, Browder v. Gale, 
he was on that bench. And the State of Alabama--again, to show 
you we have some great things, the State of Alabama Bar 
Association for its Law Day program on May 4th celebrated all 
day the case of Browder v. Gale which integrated the buses, and 
the chief judges of the three district courts in Alabama were 
there.
    So we have made progress, but we need to keep the--the 
Voting Rights Act needs to be extended so that we will have a 
deterrent to keep us on the right track.
    Senator Durbin. Mr. Derfner, your career has included 
working on voting rights cases for 40 years, winning the 
extensions of the Voting Rights Act in 1970, 1975, and 1982. 
Could you address that same issue and also the question about 
whether or not the extension should be for 25 years? Do you 
believe this is a reasonable amount of time for extension?
    Mr. Derfner. The first question as to what would we look 
like, I think I would have to agree with Mr. Gray. I think what 
we could go back to is the year 1970 at which time people had 
registered under Section 4 in large numbers, but I think we 
could backslide a lot with the gains that have been made since 
then.
    And I want to say that the one thing that Dr. Thernstrom 
and I clearly agree on is both our hope--and the hope of 
everybody here, I am sure--that we will get at some point to a 
fully integrated society in which every citizen plays an 
important part. I think the way we get there is by ensuring 
that everybody gets to play a part, that everybody is included. 
And I think Section 5 has been a very important part of that 
process.
    As to your question about the length of time, the one thing 
I would say there, Senator Durbin, is that the bill has in it a 
provision for a review by Congress at the end of 15 years. I 
think Congress will take that very seriously at that point, 
and, in fact, Congress can take a look at any time--if it 
reauthorizes for 25 years, it can take a look at any time along 
the way and say, you know, I think we have gotten to the point 
where we do not need it anymore.
    So I do not see any problems with the 25-year extension 
because I think there are available methods if it turns out not 
to be necessary. But Congress, having found an effective 
method, should not be quick to let it go before it is 
necessary. In my testimony, I refer to the repeal by Congress 
of most of the civil rights laws in 1894. That was done in the 
hope that equality was there or was coming. It turned out to be 
just a disaster. And so I would urge Congress to err on the 
side of making sure that we all, all of our citizens of all 
races, are included, and that is what Section 5 does.
    Senator Durbin. Professor Days, we have had academics come 
before this Committee over the past few weeks and say that the 
Voting Rights Act would not withstand constitutional scrutiny. 
You have certainly had quite a background as Solicitor General 
in serving this country. What is your opinion?
    Mr. Days. Well, one can never be absolutely certain, but I 
think that the history of the Voting Rights Act and Congress' 
actions with respect to discrimination and voting, its special 
constitutional status under Section 2 of the 15th Amendment and 
the record that has been established of Congress addressing 
this issue would incline, I would say, the Supreme Court to 
show a high level of deference to determinations that Congress 
made. It is important, of course--and you know this, and that 
is why we are here--that Congress make a record to show not 
only what it has done before, but what it has learned about the 
current circumstance. And, again, one can't be absolutely 
certain, but for the United States Supreme Court to substitute 
its judgment for that of Congress with respect to voting rights 
and the best and most effective way of dealing with continued 
problems would be unfortunate. I don't know that it would 
happen, but I think it would certainly be out of character, 
given what we know up to this point about the way the Supreme 
Court has pointed to Congress' work under the Voting Rights Act 
as kind of the gold standard of what Congress should be doing 
pursuant to its powers under Section 5 of the 14th Amendment 
and in dealing with issues of this kind.
    So I think it has to be viewed as occupying a unique place 
in terms of the relationship between Congress and the Court.
    Senator Durbin. Dr. Thernstrom, my memory of apartheid was 
a segregated society where the majority black population in 
South Africa was denied very basic and fundamental rights to 
things like education. And yet you said today in your 
testimony, ``at long last, blacks are moving towards becoming 
another American ethnic group. No thanks to the Federal 
Government,'' you said, ``or I, should say specifically, with 
no help from Congress, the courts, and the Department of 
Justice, all of whom have amended a once-perfect statute and 
turned it into a system that's much too close to political 
apartheid.''
    Do you believe that the desegregation of the schools of 
America in Brown v. Board of Education was a step toward 
political apartheid?
    Ms. Thernstrom. No, of course I don't. Brown v. Board 
struck down a system of political--of apartheid in one region 
of the Nation, a system that didn't look that different from 
what existed in South Africa.
    So that question a little bit bewilders me, but let me go 
back for a second--
    Senator Durbin. The testimony--
    Ms. Thernstrom. Can I go back for a second to your question 
about the 25 years, the emergency provision? I mean, do we have 
a permanent emergency on our hands? Again, this provision, 
Section 5, was supposed to be a temporary provision since it 
does distort our constitutional structure. It did so 
legitimately in 1965, but it is not 1965 today. And as for the 
deterrent effect, I mean, how does one measure the deterrent 
effect of the Voting Rights Act and the deterrent effect of a 
transformation in American racial attitudes and the fact that 
blacks are voting, are participating in politics at a very high 
level? The real deterrent in the South today is the fact that 
every elected official--almost every elected official has black 
constituents. I wish more did and--I mean, I wish everyone did, 
and more would have black constituents if we were not so 
racially gerrymandering the districts.
    But, look, I do not like--and that was the point of quoting 
Justice O'Connor, and obviously that phrase has been used by 
other Justices on the Supreme Court. I do not like any form of 
racial sorting, racial classifications. I think they are 
poisonous. I think that has been the history of America, and I 
do not want to keep perpetuating that history. We need to move 
beyond it. We need to move on. It is not doing us any good. It 
is doing us harm. And that is my point. And that phrase 
``political apartheid'' was obviously taken from Justice Sandra 
Day O'Connor's opinion in Shaw v. Reno.
    Senator Durbin. I can recall as a college student when the 
march on Selma occurred and the passage of civil rights 
legislation and my naive belief, very naive belief, that I 
would have to describe racism to my children and grandchildren 
because we had achieved so much with the passage of law. I 
believe we have achieved a lot, but I believe we have a long 
way to go. Two hundred and fifty years of slavery, a century of 
racial segregation in full force before the Voting Rights Act, 
and to suggest now that these were temporary measures, we are 
finished with those, let's move on, is to overlook the obvious.
    Ms. Thernstrom. But most of the Voting Rights Act is 
permanent, and I think you are perfectly right to say that the 
heart of the disagreement between the two sides here is the 
level of racism today in America. And I will offer my hard data 
against anybody else's to show the amazing change that has--and 
the degree to which we are now down to a level which we only 
dreamed of in 1965 in terms of real racism in America.
    Senator Durbin. Let me just say, you can offer your hard 
data, and I will offer the hard reality. And the hard reality 
is that racism, sadly, is still a problem and a challenge for 
America. I know we have made progress. I celebrate that 
progress. My colleague in the United States Senate is an 
African-American. The State of Illinois, which had never even 
had the courage to run a woman for office until about 20 years 
ago, has now two statewide elected African-American officials 
who are the biggest vote-getters in my State. Progress is being 
made, and I am proud of it. I am proud of my State for it.
    But to suggest that we can now walk away from this is to 
ignore what has happened recently in elections, not only at the 
local level but at the national level, where not only race but 
poverty combined with it have created some serious inequities, 
serious challenges, going as high as the Supreme Court as to 
whether people were treated fairly in the State of Florida 
during the Gore v. Bush controversy.
    Ms. Thernstrom. In non-covered counties in Florida.
    Senator Durbin. But let me just tell you, that is not the 
end of the story, as you know--I hope you know--because there 
are issues involving voting opportunities and questions being 
asked and demands on State legislation that I think really make 
this still a very viable and important issue. I think the hard 
reality requires us to reauthorize the Voting Rights Act.
    Thank you, Mr. Chairman.
    Senator Hatch. Well, thank you.
    I can see why some in these covered jurisdictions are very, 
very upset, because we have made such great strides, and 
especially when they compare themselves to other jurisdictions. 
And just to cite Illinois for an illustration, this article 
documenting discrimination, you know, it says in Boston, 
Massachusetts, it says the enactment of a redistricting plan in 
2001 described by the court as ``a textbook case of packing,'' 
concentrating large numbers of minority voters within a 
relatively small number of districts devised by the House 
leadership, which knew what it was doing. Now, this is 
Massachusetts. The manipulation of district lines ``to benefit 
two white incumbents'' where the State House did not ``pause to 
investigate the consequences of its actions for minority voting 
opportunities,'' thereby using race ``as a tool to ensure the 
protection of incumbents.''
    I could go through all of them. Let me just take Illinois 
since it has been raised here. The retention and defense--and 
this is a quote. ``The retention and defense in a 1984 lawsuit 
of a city districting plan that `packed' and `fractured' 
minority voters to ensure the reelection of an incumbent 
Senator, a plan that exposed how `the requirements of 
incumbency are so closely intertwined with the need for racial 
dilution that an intention to maintain a safe, primarily white 
district for Senator Joyce is virtually coterminous with the 
purpose to practice racial discrimination.'''
    It goes on to say, documenting discrimination, ``The 
conduct of poll officials in the city of Reading who `turned 
away Hispanic voters because they could not under their names' 
or refused to `deal' with Hispanic surnames.'' The county's 
imposition of more onerous requirements for applicants seeking 
to serve as translators at the polls than those applying to be 
other types of poll officials, a requirement that impeded the 
court's order requiring the county to hire bilingual poll 
officials, and boasts by county officials and poll workers 
flaunting their racially discriminatory motivations and 
practices to Federal officials observing elections in May 2001, 
November 2001, May 2002, and November 2002, including 
statements from poll officials in the city of Reading to 
Justice Department observers ``boasting of the outright 
exclusion of Hispanic voters during the May 15, 2001, municipal 
primary election.''
    Now, look, you could go on. The fact is this may make an 
argument for--you know, this is a comprehensive University of 
Michigan study. This may make an argument that if you are going 
to apply it to one State, you ought to apply it to all of them, 
I guess, because there is racial discrimination, I believe, 
because of evil people in most every State. But the question 
is: Is it fair to single out these mainly Southern States? 
Because there are instances that you can point to of 
discrimination and leave some of these other States out where 
there may be even worse illustrations of discrimination.
    We all know that there is discrimination in our society. We 
all know that people do not act properly. We all know that 
people are misled sometimes into thinking that racism is a good 
thing. And I have seen it in various States that I have been in 
that are not covered by Section 5.
    One of the purposes of this hearing is to establish or not 
establish whether there is enough reason to continue the 
Section 5, and we have had some interesting comments here 
today. I respect each and every one of you. I personally do not 
believe we should allow discrimination in any way in this 
country. Then you get into all kinds of questions, what is and 
what is not discrimination. It is a very complex area. And I 
commend each of you for being experts in this field because it 
is a tough field. It is difficult. And in the past, I have to 
say some of the illustrations of discrimination are abominable. 
And true discrimination is abominable.
    Well, I would appreciate you taking this Stuart Taylor 
article just as one illustration and writing to us and giving 
us your reasons why he is wrong or why he is right, or wrong 
and right, because I found it to be an intellectually 
stimulating article, and I happen to know Stuart Taylor. I know 
that he abhors discrimination. But he is very strongly against 
continuing Section 5, as I read that article.
    So I would just like to have your viewpoints on that just 
for my review and hopefully others on the Committee. But you 
are all great people, and we appreciate having all of you here. 
Like I say, I think the Voting Rights Act has been the most 
important civil rights bill in history. That is not to discount 
the other bills, but I just think this is the one that really 
has enfranchised people who before have been treated terribly.
    I am currently in the middle of reading ``A Team of 
Rivals'' by Doris Goodwin, and it is a very stimulating book to 
me, and I will continue to read that until I finish it. It is 
not a short book. But I am used to reading not short books.
    But you all are interesting and good people, and I have 
known Abigail Thernstrom for years, and I have known you two 
for years, Mr. Derfner, I have known you for--I guess since 
1982.
    Mr. Derfner. Right.
    Senator Hatch. When you beat me up way back then.
    Mr. Derfner. Oh, no, no, no.
    [Laughter.]
    Ms. Thernstrom. Oh, yes, yes, yes.
    Senator Hatch. Oh, yes, yes, yes. And I am not easy to beat 
up, I got to tell you. And, Professor Persily, we are aware of 
your work in a variety of States, and we are just honored to 
have you all here. I did not intend to keep you so long, but 
this has been stimulating to me, and hopefully we can arrive at 
doing what is right and just. And so I want to congratulate all 
of you and thank you for being here.
    With that, we will recess until further notice.
    [Whereupon, at 11:39 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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