[Senate Hearing 109-823]
[From the U.S. Government Publishing Office]




                                                        S. Hrg. 109-823

RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE 
                      OPTIONS AFTER LULAC V. PERRY

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               ----------                              

                             JULY 13, 2006

                               ----------                              

                          Serial No. J-109-98

                               ----------                              

         Printed for the use of the Committee on the Judiciary


RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE 
                      OPTIONS AFTER LULAC V. PERRY


                                                        S. Hrg. 109-823

RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE 
                      OPTIONS AFTER LULAC V. PERRY

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

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             JULY 13, 2006

                               __________

                          Serial No. J-109-98

                               __________

         Printed for the use of the Committee on the Judiciary


                    U.S. GOVERNMENT PRINTING OFFICE
33-836                      WASHINGTON : 2007
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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
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     2
    prepared statement...........................................   211
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................    15
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   272

                               WITNESSES

Avila, Joaquin G., Assistant Professor of Law, Seattle University 
  School of Law, Seattle, Washington.............................    11
Carvin, Michael A., Partner, Jones Day, Washington, D.C..........     9
Clegg, Roger, President and General Counsel, Center for Equal 
  Opportunity, Sterling, Virginia................................     4
Ifill, Sherrilyn A., Associate Professor of Law, University of 
  Maryland School of Law, Baltimore, Maryland....................     6
Perales, Nina, Southwest Regional Counsel, Mexican American Legal 
  Defense and Educational Fund, San Antonio, Texas...............     8
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and 
  Vice-Chair, U.S. Commission on Civil Rights, Lexington, 
  Massachusetts..................................................    13

                         QUESTIONS AND ANSWERS

Responses of Joaquin Avila to questions submitted by Senator 
  Cornyn.........................................................    27
Responses of Michael Carvin to questions submitted by Senator 
  Cornyn.........................................................    45
Response of Roger Clegg to questions submitted by Senator Cornyn.    49
Responses of Sherrilyn Ifill to questions submitted by Senator 
  Cornyn.........................................................    50
Response of Nina Perales to questions submitted by Senator Cornyn    61
Responses of Abigail Thernstrom to questions submitted by Senator 
  Cornyn.........................................................    62

                       SUBMISSIONS FOR THE RECORD

American Federation of Labor and Congress of Industrial 
  Organizations, William Samuel, Director, Department of 
  Legislation, Washington, D.C., letter..........................    72
American Jewish Committee, Richard T. Foltin, Legislative 
  Director and Counsel, Washington, D.C., letter.................    74
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, D.C., letter and statement.....    75
Avila, Joaquin G., Assistant Professor of Law, Seattle University 
  School of Law, Seattle, Washington, statement and attachment...   103
Carvin, Michael A., Partner, Jones Day, Washington, D.C., 
  statement......................................................   135
Clegg, Roger, President and General Counsel, Center for Equal 
  Opportunity, Sterling, Virginia, statement.....................   144
Collet, Christian, University of California, Journal of Politics, 
  Irvine, California, manuscript.................................   175
Editorials and articles concerning renewing the temporary 
  provisions of the Voting Rights Act, list......................   218
Friends Committee on National Legislation, Ruth Flower, Senior 
  Legislative Secretary, Washington, D.C., letter................   224
Harris, Fredrick C., Associate Professor of Political Science and 
  Director, Center for the Study of African-American Politics, 
  University of Rochester, Rochester, New York, letter...........   226
Ifill, Sherrilyn A., Associate Professor of Law, University of 
  Maryland School of Law, Baltimore, Maryland, statement.........   228
Ivory, Rev. Elenora Giddings, Director, Washington Office, 
  Presbyterian Church (USA), Washington, D.C., letter............   240
Keyssar, Alexander, Matthew W. Stirling, Jr. Professor of History 
  and Social Policy, Chair, Democratic Institutions and Politics, 
  Kennedy School of Government, Harvard University, Cambridge, 
  Massachusetts, statement.......................................   242
Lawyers' Committee for Civil Rights Under Law, Jon Greenbaum, 
  Director of the Voting Rights Project, Washington, D.C., 
  statement......................................................   250
Leadership Conference on Civil Rights, Wade Henderson, Executive 
  Director, and Nancy Zirkin, Deputy Director, Washington, D.C., 
  letter.........................................................   269
League of Women Voters of the United States, Kay J. Maxwell, 
  President, letter..............................................   271
Mexican American Legal Defense and Educational Fund, John 
  Trasvina, Interim President and General Counsel, Los Angeles, 
  California, letter.............................................   275
National Association of Latino Elected Officials, Washington, 
  D.C.:
    Arturo Vargas, Executive Director, May 9, 2006, letter.......   277
    James Thomas Tucker, July 2006, survey.......................   279
National Black Law Journal, Glenn D. Magpantay and Nancy W. Yu, 
  Vol. 19, Number 1, 2006, article...............................   312
National Congress of American Indians, Joe A. Garcia, President, 
  Washington, D.C., letter and resolution........................   344
National Council of Asian Pacific Americans, Washington, D.C., 
  letter.........................................................   349
National Council of La Raza, Janet Murguia, President and CEO, 
  Washington, D.C., letter.......................................   351
Oliver, Dana M., General Registrar, Salem, Virginia, letter......   353
Pamintuan, Rudy, Chair, President's Advisory Commission on Asian 
  Americans and Pacific Islanders, Washington, D.C., letter......   356
Perales, Nina, Southwest Regional Counsel, Mexican American Legal 
  Defense and Educational Fund, Los Angeles, California, 
  statement......................................................   357
RenewtheVRA.org:
    joint statement..............................................   361
    James Blacksher, Edward Still, Nick Quinton, Cullen Brown and 
      Royal Dumas, June 2006, report.............................   365
Rosenberg, Steven L., County Attorney, County of Augusta, 
  Virginia, Verona, Virginia, letter.............................   403
Sinclair-Chapman, Valeria, Assistant Professor of Political 
  Science, University of Rochester, Rochester, New York, letter..   405
Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and 
  Vice-Chair, U.S. Commission on Civil Rights, Lexington, 
  Massachusetts, statement and attachment........................   407
United Automobile, Aerospace & Agricultural Implement Workers of 
  America (UAW), Alan Reuther, Legislative Director, Washington, 
  D.C., letter...................................................   419
Verizon, Ivan Seidenberg, Chairman and Chief Executive Officer, 
  New York, New York, letter.....................................   421
Wal-Mart, H. Lee Scott, President and Chief Executive Officer, 
  Bentonville, Arkansas, letter..................................   422
Watts, J.C. Jr., June 21, 2006, letter...........................   423
Williams, Roger, Secretary of State, State of Texas, Austin, 
  Texas, letter and attachment...................................   424
Yale Law Journal, Alvaro Bedoya, 115:2112, 2006, article.........   429

                                APPENDIX

Additional submissions and citations for Voting Rights Act 
  Reauthorization................................................   464


 
RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS ACT: LEGISLATIVE 
                      OPTIONS AFTER LULAC V. PERRY

                              ----------                              


                        THURSDAY, JULY 13, 2006

     U.S. Senate, Subcommittee on the Constitution,
                  Civil Rights and Property Rights,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:33 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. John Cornyn, 
presiding.
    Present: Senators Cornyn, Kennedy, and Feingold.

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

    Senator Kennedy. [Presiding.] We will come to order. The 
Chairman and other members are expected here momentarily, and 
then there are going to be some votes that are coming up, so 
the Chairman will have to deal with that. But we will get 
started, and I would ask consent that my comments appear after 
the Chair, and I also have a statement by the Senator from 
Vermont, Senator Leahy, and I ask that that be made part of the 
record.
    I hope that today will conclude our hearings on the 
reauthorization of the Voting Rights Act. We have built a 
strong record justifying the renewal of the Act's key expiring 
provisions--Section 5, Section 203, and the Federal observer 
provisions. Voting this bill out of Committee and moving it to 
the floor for consideration by the full Senate is essential. 
The importance of Act to minority voters and to our Nation's 
promise of democracy demands action, and I am hopeful that the 
full Senate can pass this bill before the August recess in time 
for the 41st anniversary of the signing of the Act, which we 
will celebrate on August 6th.
    The Supreme Court's decision in LULAC v. Perry that the 
Texas Congressional redistricting plan discriminated against 
Latino voters in violation of Section 2 of the Act is strong 
evidence in favor of reauthorization. The Court found current 
discrimination against minority voters in a jurisdiction 
covered in its entirety under Section 5 of the Voting Rights 
Act. The decision is a vindication of minority voting rights 
and another indication that voting discrimination persists 
today in some parts of the country, including at the State 
level.
    The Court made several significant findings. It found that 
polarized voting exists throughout the State. Anglo voters in 
Texas generally vote for different candidates than minority 
voters. We know that redistricting boundaries and altering 
election rules in such cases has been used to undermine the 
voting rights of minorities. And Section 5 provides a needed 
remedy for such practices.
    The Court also found that the State has a long, well-
documented history of discrimination against Hispanics and 
African-Americans in voter registration, voting, and otherwise 
participating in the electoral process. The 2003 redistricting 
in Texas was another chapter in that history. The State shifted 
100,000 Latino voters from a district where they were on the 
verge of electing a candidate of their choice to another 
district in which Latinos already controlled election outcomes.
    As Justice Kennedy states, ``In essence, the State took 
away the Latinos' opportunity because Latinos were about to 
exercise it.''
    Justice Kennedy found evidence that Texas had intentionally 
diluted the voting strength of Latino voters because of their 
ethnic background and in violation of the Constitution. Such 
evidence of intentional discrimination is obviously very 
significant with respect to the constitutionality of extending 
Section 5 of the Act.
    Even Justice Scalia said, ``We long ago upheld the 
constitutionality of Section 5 as proper exercise of Congress's 
authority under Section 2 of the 15th Amendment to enforce the 
Amendment's prohibition on denial or abridgment of the right to 
vote.''
    As Justice Scalia emphasized, Section 5 applies only to 
jurisdictions with a history of official discrimination. In 
fact, the Texas redistricting plan should never have been 
before the Court. If the Attorney General listened to the 
advice of career attorneys in the Civil Rights Division, he 
would not have approved the Texas plan under Section 5.
    As Justice Souter said, the Attorney General should have 
objected because the State failed to offset the elimination of 
a district in which African-American voters had demonstrated an 
ability to elect a candidate of their choice under the previous 
plan. That is why Chief Roberts was moved to say, ``It is a 
sordid business, this divvying us up by race.''
    As long as State and local election officials continue to 
discriminate against minority voters, laws like Section 5 will 
be needed to protect minority voters.
    We will hold up. We will have a moment or two recess here 
while Senator Cornyn arrives, and then we will hear from 
Senator Cornyn and the panel. We thank the witnesses for their 
patience. Most of them have some familiarity with this process. 
I would indicate to them that their testimony is very important 
and we will have a good opportunity to review it carefully here 
on the Committee.
    [Recess 2:38 p.m. to 2:55 p.m.]

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

    Senator Cornyn. We will reconvene. Welcome to each of you. 
I ask you indulgence as the Senate has four stacked votes, and 
so we will get started here. I will get started. I know Senator 
Kennedy was here and delivered his opening statement, but if 
you will hang in there with us, we will get this done in the 
best form we possibly can.
    On behalf of the Chairman, let me say welcome to this 
eighth and likely the last in a series of a number of hearings 
before the Senate Judiciary Committee on reauthorizing the 
temporary provisions of the Voting Rights Act, provisions that 
are scheduled to expire about 1 year from now, in the summer of 
2007.
    Few issues are as fundamental to our system of democracy 
and the promise of equal justice under law as are our voting 
rights. It is precisely for this reason that it is appropriate 
that we continue to engage in a thorough review of the Act and 
that we continue to work collectively to ensure that the Act is 
reauthorized with due consideration of the requirements of the 
Constitution and recent guidance from the U.S. Supreme Court.
    As we continue to explore the many issues raised by 
reauthorization of the expiring provisions, I am concerned we 
may not be as clear as we need to be about what we are 
discussing. Many, I think, may be under the false impression 
that if Congress does not act, the Voting Rights Act will 
expire. Nothing could be farther from the truth. In fact, the 
Act's core provision, that is, Section 2, its prohibition on 
discrimination with respect to voting, applies nationwide and 
is permanent.
    What concerns me further is that the current draft rewrites 
significant portions of the existing Voting Rights Act. 
Unfortunately, in my opinion, in a way that may well have the 
effect of further injecting partisan politics into the noble 
pursuit of guaranteeing voters access to the ballot box. This 
concern of mine and of numerous scholars was heightened by the 
Supreme Court's recent opinion in League of United Latin 
American Citizens v. Perry, the Texas redistricting case, a 
heavily anticipated decision handed down about 2 weeks ago. The 
Court upheld virtually all aspects of the Texas redistricting 
plan, requiring that a single district be redrawn, although the 
ripple effect is unknown at this point.
    I believe the Court was right to uphold the bulk of that 
plan, because whatever one thinks of partisan gerrymandering, 
it has long been the case that legislatures will seek to 
maximize party interests when establishing districts for 
voting. And until we come up with a better objective system, 
partisan gerrymandering will always be a reality of 
redistricting. As one of my former colleagues told me, he said, 
``You can't take politics out of politics.'' And this is true 
whether it is a Democrat- or a Republican-led remapping.
    But it is disturbing when an Act that was designed to 
ensure voters that voters have full access to the ballot box 
has become a vehicle for partisan maneuvering. That is why I 
fear that the current rewrite of the Voting Rights Act will do 
that, that we are continuing this, in the words of Chief 
Justice John Roberts, sordid business of divvying up people by 
race. Only now we are perpetuating it under the cloak of 
protecting voting rights. I believe we should take great 
caution in this exercise.
    We have an esteemed group of scholars with us today, and I 
look forward to hearing from each of you about your opinions on 
the topics I have mentioned and the Voting Rights Act 
generally.
    Roger Clegg is President and General Counsel of the Center 
for Equal Opportunity in Sterling, Virginia, and he has 
extensively researched and written on legal issues raised by 
our civil rights laws.
    Next, Professor Sherrilyn Ifill, from the University of 
Maryland Law School in Baltimore. Professor Ifill has 
previously served as Assistant Counsel at the NAACP Legal 
Defense and Education Fund, where she litigated various Voting 
Rights Act cases.
    Nina Perales, from the Mexican American Legal Defense and 
Educational Fund, is also with us today. Ms. Perales is the 
Southwest Regional Counsel for MALDEF in my hometown of San 
Antonio, Texas.
    Michael Carvin is a partner with the law firm of Jones Day 
here in Washington, D.C. Mr. Carvin specializes in 
constitutional, appellate, civil rights, and civil litigation 
against the Federal Government. He has argued cases in the U.S. 
Supreme Court and virtually all Federal appeals courts.
    Professor Joaquin Avila is an Assistant Professor of Law at 
Seattle University School of Law in Seattle, Washington. 
Professor Avila was previously Managing Director and head of 
Latin America for Lehman Brothers, where he developed and 
implemented strategic plans for the region.
    Last, but certainly not least, we have Abigail Thernstrom, 
who is joining us for the second time. Ms. Thernstrom is the 
Vice Chair of the United States Commission on Civil Rights, and 
she has written extensively on race relations and voting rights 
issues. Ms. Thernstrom, thank you for returning to be with us 
again.
    I would especially like to thank Chairman Specter, as well 
as Senator Brownback, Chairman of the Subcommittee on the 
Constitution, Civil Rights, and Property Rights, for scheduling 
this important hearing, and I am delighted to chair it today.
    As I said a moment ago, this is going to be a little 
helter-skelter, but we will do the best we can and in a way 
that allows me to get back and cast votes on the stacked votes 
before us. But until then, Mr. Clegg, let's start with you, 
please. We will ask you to keep your opening statement to 5 
minutes, and then we will proceed with questions. Thank you.

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL COUNSEL, CENTER 
           FOR EQUAL OPPORTUNITY, STERLING, VIRGINIA

    Mr. Clegg. Thank you, Senator Cornyn. In my full written 
statement, I discuss at some length why I think Section 5 and 
Section 203 should not be reauthorized, indeed why I think 
doing so would be unconstitutional, and why the Bossier Parish 
decisions and Georgia v. Ashcroft should not be overturned if 
Section 5 is reauthorized. But in my oral statement this 
afternoon, I would like to focus specifically on the divergence 
between what the Voting Rights Act was supposed to be and what 
it has become, and that divergence is in many ways dramatized 
by the Supreme Court's recent decision in LULAC v. Perry.
    Section 5 has diverged from its original purpose in several 
ways. The first way is that there really is no longer any rhyme 
or reason in which jurisdictions are covered and which ones are 
not. After several decades, we would expect to need to update 
the trigger mechanism, looking at more recent elections or more 
recent records of voting violations.
    Another way Section 5 has diverged from its original stated 
purpose is even more disturbing. It is not being used to stop 
racial gerrymandering. It is being used to require it. 
Sometimes that motivation is overtly racial. The Voting Rights 
Act is being used to foster segregation in voting districts, 
and it is being used to try to ensure something like racial 
proportionality in legislatures. But at least four of the 
Justices in Perry acknowledged that, while generally the 
reapportionment there was about politics, not race, what racial 
gerrymandering did take place was required by the Voting Rights 
Act.
    It is also disturbing to see a voting rights statute 
twisted into a partisan political device, and this abuse is 
committed by both parties. For instance, in Texas, Republicans 
did not aim to dilute anyone's voting power because of race. 
They were focused on people's voting power because of party--
not always a particularly noble focus but one that is as old as 
Elbridge Gerry at least. Still, the Democrats wanted to stop 
them, and so they tried, with some success, to use the Voting 
Rights Act to do it. Likewise, in Georgia v. Ashcroft, the 
Democrats were not trying to hurt black voters or help them, 
per se. They just wanted to try to win more seats for 
Democrats. But their efforts were challenged under the Voting 
Rights Act because it was the tool at hand.
    Incidentally, the same kind of abuse can also happen in 
ways that do not involve gerrymandering but do involve other 
voting practices or procedures that are objected to, ostensibly 
because they are racially discriminatory, but really for 
partisan purposes. For instance, I suspect that absentee ballot 
procedures and voter identification and other anti-fraud laws 
are all challenged sometimes not because anyone really believes 
that they are intended to be racially discriminatory, but 
because one side thinks these rules will hurt their voter 
turnout and their disparate racial impact allows the Voting 
Rights Act to be invoked for, again, partisan political ends.
    The good news, Mr. Chairman, is that in 2006 neither party 
wants to stop anyone from voting because of race. All either 
party cares about is winning. There is no candidate in either 
party who would not be thrilled with 100 percent black 
registration and turnout, so long as the candidate was also 
confident that those voters would vote for him.
    The racial polarization that is often the centerpiece of 
Voting Rights Act litigation is an increasingly incoherent 
concept. Whites and blacks may frequently vote differently in 
some jurisdictions, but it is not about race or discrimination. 
It is just about differences in political opinion on issues 
like taxes and national defense.
    But because African-Americans vote so overwhelmingly 
Democratic, any effects test in the voting area can be readily 
invoked for partisan purposes, sometimes by one part, sometimes 
by the other. For instance, for years Republicans have tried, 
sometimes successfully--although those days may be ending--to 
use an effects test to pack African-Americans into a relatively 
few districts, thus bleaching all the other surrounding 
districts white, with the end result that there are lots of 
Republican districts and just a few black ones, especially in 
jurisdictions like the South where the white voters tend to be 
conservative.Of course, conversely, Democrats in Perry argued 
that reapportionment aimed at helping Republicans was racially 
discriminatory. Well, what is to be done? The obvious answer is 
don't renew Section 5.
    If Congress insists that it cannot go cold turkey, then at 
least it should not make Section 5 worse. The two Bossier 
Parish decisions have modestly limited its scope and its 
potential abuses. They should not be overturned. I would also 
put Georgia v. Ashcroft in this category. The current House 
bill not only overturns Georgia v. Ashcroft but replaces it 
with a provision that is muddy at best, will lead to years of 
more litigation, and will have results that its drafters never 
intended. I would add that the more this provision's meaning is 
clarified to ensure that it requires the creation of majority-
minority districts, the more clearly unconstitutional it will 
be as well.
    The case law that has grown up around Section 5 makes its 
meaning nearly incomprehensible already. Congress should not 
make matters worse by adding language, the meaning of which its 
own members cannot agree on.
    I would also not extend Section 5 or Section 203 for 
another 25 years. The shorter the extension, the better, 
especially if Congress changes the statute in ways that might 
have unintended consequences. I would also try to put in place 
a better, more objective review mechanism, probably in the 
statute itself. Congress must undertake a serious, systematic 
comparison of voter registration and participation rates by 
race in covered versus non-covered jurisdictions, with an 
effort to determine the actual causes of any disparities and 
specifically whether those causes are discrimination, and if 
there are more limited and effective remedies for any 
discrimination than the preemption mechanism and an effects 
test. Above all, Senator Cornyn, Congress should not extend the 
law and then forget about it and its effects for another 25 
years--and then scramble and try to figure out what to do about 
it in the heat of another election year.
    Thank you very much.
    [The prepared statement of Mr. Clegg appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Mr. Clegg.
    Professor Ifill?

 STATEMENT OF SHERRILYN A. IFILL, ASSOCIATE PROFESSOR OF LAW, 
   UNIVERSITY OF MARYLAND SCHOOL OF LAW, BALTIMORE, MARYLAND

    Ms. Ifill. Thank you for giving me the opportunity to 
testify in support of the passage of this bill reauthorizing 
the Voting Rights Act.
    I followed the deliberations on this matter in the House 
and in the Senate with some interest, and I commend both Houses 
for the deliberate and thorough way in which you have 
considered reauthorization of the Act.
    As a former voting rights attorney and now an academic, I 
have tried to follow the arguments advanced by those who 
disagree with the continued need for the Act, like Mr. Clegg--
arguments that I believe have been most capably countered by 
supporters of the Act in the civil rights and academic 
communities who have appeared before you.
    But I was particularly interested in appearing at this 
hearing because I confess to being somewhat intrigued by the 
name of the hearing: ``Legislative Options after LULAC v. 
Perry.'' I was intrigued because my reading of the Supreme 
Court's decision in that case finds nothing that supports 
altering the existing framework of the draft bill for 
reauthorization of the Voting Rights Act. To the contrary, the 
Court's analysis in LULAC, to my mind, strongly supports the 
bill. I say this for three reasons.
    First, the Court upheld the district court's finding that 
voting was racially polarized throughout the State of Texas. 
This finding and the Supreme Court's recognition of it is 
significant. It reflects the reality that although this country 
has come a long way since the Act was passed in 1965, we still, 
as Congressman John Lewis stated to this Committee, have a 
great distance to go.
    When I litigated voting rights cases in the 1980's and 
early 1990's in Texas, voting was racially polarized. Fifteen 
years later, this political reality continues to shape and to 
undermine the ability of minority voters to elect candidates of 
their choice.
    Second, the Court in LULAC, in its detailed and local 
specific analysis of the way in which the dismantling of 
District 23 violated Section 2 of the Act, demonstrates why the 
protections of the Voting Rights Act are not limited merely to 
access to the ballot box, as some would have us believe. In 
1965 and again in 1982, Congress explicitly designed the Act to 
address any means by which a jurisdiction might interfere with 
the ability of minority voters to participate in the political 
process and elect candidates of their choice. Rather than 
anticipate what those methods might be, Congress, and later the 
courts in furtherance of Congress' goals, encouraged--and I am 
quoting--''a searching, practical evaluation of the local 
political reality and a functional view of the political 
process''--I am quoting from the Senate report accompanying the 
1982 amendments of the Act--to determine whether a violation of 
Section 2 has occurred.
    In LULAC, the Court rejected a simplistic numbers game 
whereby one Latino district, District 23, could simply be 
swapped for another, District 25. The Court recognized instead 
that District 23 was dismantled precisely to keep Latinos there 
from exercising their increasing power in that district. The 
Court described this action by the State of Texas as ``bearing 
the mark of intentional discrimination.''
    Third, with regard to Section 5, as you know, LULAC v. 
Perry was not a Section 5 case; thus, the Court's opinion in 
LULAC offers this Committee no new analysis or insight into the 
appropriate standard for preclearance under Section 5, the 
scope of jurisdictions to be covered under Section 5, or the 
trigger formula for Section 5. In fact, the only pronouncements 
about Section 5 that I think are of importance for this 
Committee's work on the reauthorization bill appear in the 
opinion of Justice Scalia, concurring in part and dissenting in 
part.
    In that opinion, the three most conservative Justices on 
the Court joined with Justice Scalia in reaffirming the 
constitutionality of Section 5 as a proper exercise of 
Congress's authority under Section 2 of the 15th Amendment, a 
power that remains undiminished after City of Boerne v. Flores.
    Finally, to the charge that the Voting Rights Act fosters 
segregation, there are myriad factors that have contributed to 
residential segregation in the United States. Some of them 
include a history of violence, socioeconomic disparities 
between blacks and whites, red-lining, and even choice. None of 
these phenomena were created by the Voting Rights Act, and I 
would commend certainly a number of studies, including Jim 
Loewen's ``Sundown Towns,'' Sheryll Cashin's ``The Failure of 
Integration,'' if one wants to look at the purposes and the 
causes of residential segregation.
    The Voting Rights Act instead has encouraged some of the 
most integrated districts, election districts, that this 
country has seen in the South.
    In conclusion, the Supreme Court's decision in LULAC v. 
Perry, to the extent that it bears on the deliberations of this 
Committee, reaffirms the importance of reauthorizing the Act, 
and I would be happy to take any further questions about the 
decision.
    Thank you.
    [The prepared statement of Ms. Ifill appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much.
    Ms. Perales?

STATEMENT OF NINA PERALES, SOUTHWEST REGIONAL COUNSEL, MEXICAN 
AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, SAN ANTONIO, TEXAS

    Ms. Perales. Thank you, Chairman Cornyn. Thank you for the 
opportunity to testify today regarding the Supreme Court 
decision in the Texas redistricting case and its implications 
for the reauthorization of the Voting Rights Act.
    My name is Nina Perales. I am Southwest Regional Counsel 
for MALDEF, the Mexican American Legal Defense Fund. MALDEF 
successfully litigated the Voting Rights Act claim before the 
Court. I argued the appeal on behalf of the GI Forum before the 
Supreme Court on March 1, 2006.
    The LULAC v. Perry decision is a resounding affirmation of 
the Voting Rights Act and its continued importance in 
protecting minority voting rights. The Supreme Court decision 
also helps us understand why we need the protections of the 
temporary provisions in the face of ongoing discrimination in 
Texas.
    The Court found that Texas had violated the Voting Rights 
Act by diluting Latino voting strength in District 23. As 
mentioned by Professor Ifill, the Court found racially 
polarized voting throughout the State and characterized the 
racially polarized voting in District 23 as ``severe.''
    For Texas, the State containing the second largest number 
of Latinos in the United States, this is the second time a 
State redistricting plan has been invalidated in this decade 
for violating Latino voting rights.
    This decision, although characterized by many as having to 
do with partisanship, is not about Democrats and it is not 
about Republicans. Importantly, the record in this case 
demonstrated that Latinos in District 23 were flexible in their 
partisan affiliation and had voted in some numbers for the 
incumbent prior to his losing support in the Latino community 
steadily over the decade leading up to the redistricting.
    This Court in this decision was unable to determine a 
standard for partisan gerrymandering--unable or unwilling, and, 
thus, this case does not discuss how the Voting Rights Act 
might or might not be squeezed into a partisan agenda. It 
simply does not discuss it.
    The Supreme Court, however, did affirm the rule that 
political maneuvering--and I believe the Supreme Court 
understands this can happen from either party--has its limits 
when it comes to taking away Latino opportunity to elect. This 
case has unusual and hopefully unique facts because it was a 
very bad situation for Latinos in District 23. Having grown 
into the majority, now comprising 55 percent of the registered 
voters, and having voted very cohesively over the last decade, 
more and more so against the incumbent, Latinos were divided by 
the State, pulled out of this district, just at the point at 
which they were going to unseat the disfavored candidate. The 
Supreme Court wrote that, Texas ``took away the Latinos' 
opportunity because Latinos were about to exercise it.''
    The Court did not have any problem at all overruling the 
district court in its finding that District 23 was not an 
opportunity district. The Supreme Court found that it did offer 
the opportunity to elect. It was not a fuzzy or an amorphous 
concept, but quite clear, and clear enough for the Supreme 
Court to handle it and rule that it was an opportunity district 
based on a local appraisal of the facts there, including the 
turnout, the election performance, and the registration rates.
    Finally, I want to mention that the Subcommittee can be 
reassured by the fact that eight Justices wrote specifically to 
say that Section 5 of the Voting Rights Act, which was--in 
fact, there was no Section 5 claim in this case and there could 
not have been because, of course, those issues are reserved to 
the Justice Department and the district court in Washington, 
D.C. But eight Justices still went out of their way to write 
that Section 5 is a compelling State interest and to uphold or 
to discuss the Court decisions previously upholding the 
constitutionality of Section 5, I think that that is--to the 
extent that LULAC v. Perry does speak to the temporary 
provisions, it is in a very positive and affirming way.
    [The prepared statement of Ms. Perales appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Ms. Perales.
    We are going to have to recess for the vote and return 
shortly, I hope.
    [Recess 3:17 p.m. to 4:14 p.m.]
    Senator Cornyn. We will reconvene the hearing. Again, my 
apologies. Simply unavoidable.
    Mr. Carvin, we would be glad to hear your opening 
statement.

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, WASHINGTON, 
                              D.C.

    Mr. Carvin. Thank you, Senator Cornyn. I have been involved 
in a number of voting rights----
    Senator Cornyn. Mr. Carvin, is your red light on?
    Mr. Carvin. Can you hear me now?
    Senator Cornyn. I can hear you now. Thank you.
    Mr. Carvin. Thank you. I was just going to say that I have 
filed a brief on behalf of the Texas Republican Party in the 
LULAC case.
    To cut to the chase, I think the principal relevance of the 
LULAC case for the Section 5 reauthorization was the case's 
treatment of so-called influence districts. As you know, 
Senator, those are districts where minorities are not 
sufficiently large that they can constitute a majority in a 
district but they are, nonetheless, sizable enough that they 
can form a coalition with non-minority voters to elect their 
candidates of choice. And that issue came up in LULAC in the 
following way:
    There was a Section 2 challenge to the failure to maintain 
or preserve old District 24 where the black population, citizen 
voting age population was roughly 26 percent, and it was argued 
that even though they were a minority of the district, they 
could elect their preferred candidate, who was the white 
Democratic incumbent, Martin Frost.
    The Court, I should emphasize, did not resolve explicitly 
whether or not such claims are ever viable under Section 2, but 
it did reject the claim, as it was brought relative to District 
24, and it did so with language that is in my statement, where 
at least Justice Kennedy indicated that acceptance of this kind 
of influence district theory would raise serious constitutional 
concerns about the Voting Rights Act.
    That continued a long line of precedent in which all the 
lower Federal courts, save one, had rejected the continuous 
efforts of the Democratic Party in the 2000 redistricting cycle 
to have courts order or require these influence districts under 
Section 2 and Section 5 of the Voting Rights Act. Those have 
been uniformly rejected pursuant to the reasoning that the 
Federal judiciary is not empowered or required by the Voting 
Rights Act to engage in preferences for one party over another, 
even if that party is supported predominantly by minorities. In 
other words, it is an obvious fact that certainly in the 
African-American community and largely in the Latino community, 
the preferred candidate of choice is a Democrat. But the courts 
have rejected the notion that that somehow justifies creating 
districts where minorities can elect their preferred candidates 
of choice.
    The mandate of Section 2 is not to prefer any party, 
regardless of its demographic composition. It is to ensure that 
minority voters have an equal opportunity to elect their 
candidates, no guarantees because of partisan preferences.
    The relevance of that to the legislation the Committee is 
considering is that as that theory of partisan preferences and 
influence districts under Section 2 has been uniformly 
rejected, I am greatly concerned that the Committee and the 
Congress is about to revive it under Section 5. And the reason 
for that is that the language in the Senate and House bills 
prohibits as retrogressive any redistricting change that 
diminishes the ability of minority voters to elect their 
preferred candidates of choice. And as I indicated before, 
since the preferred candidate of choice is largely Democratic, 
you will literally have a Federal statute, passed, ironically, 
by a Republican Congress, which says you cannot diminish the 
ability to elect Democrats in these covered jurisdictions. This 
would not just be a requirement that you preserve majority-
minority districts because we all know that in the 
circumstances I previously described, minorities are able to 
elect their preferred candidates of choice, even if they are 
not a numerical majority in the district because they can form 
a coalition with like-minded Democratic voters who are non-
minority.
    We also know, of course, that preferred candidates of 
choice among the minority community can be either members of 
that ethnic group or non-minorities. For example, in the LULAC 
case, Representative Bonilla is a Latino, but as Ms. Perales 
indicated previously, he was not the Hispanic candidate of 
choice. You do not look at the ethnicity of the candidate. You 
look at the voting patterns of the particular ethnic group.
    So LULAC confirms again that if you have a requirement in 
the Voting Rights Act that says you cannot diminish the ability 
to elect a preferred candidate of choice, what you have, in 
essence, done is prevent dismantling districts like the old 
District 24 in Texas because that would diminish the ability to 
elect the preferred candidate.
    I will also briefly mention the override of the Bossier 
Parish II case, which is of particular relevance to me because 
I successfully argued that case in the Supreme Court, and the 
evil there is that it enables the Justice Department to find 
discriminatory purpose every time that the submitting 
jurisdiction does not maximize the number of minority 
opportunity districts. And after the Georgia v. Ashcroft 
override, that would not only mean maximizing the number of 
majority-minority districts, it would mean maximizing the 
number of the so-called influence districts, which, as you 
indicated in your opening statement, in my mind injects 
partisan consideration of favoritism into a statute that is 
supposed to ensure racial neutrality. And I think that would be 
a very troubling development, particularly 40 years after the 
enactment of the first version of Section 5.
    Thank you.
    [The prepared statement of Mr. Carvin appears as a 
submission for the record.]
    Senator Cornyn. Thank you, Mr. Carvin.
    Professor Avila, we would be glad to hear your opening 
statement.

  STATEMENT OF JOAQUIN G. AVILA, ASSISTANT PROFESSOR OF LAW, 
     SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, WASHINGTON

    Mr. Avila. Good afternoon, Senator. I would just like to 
add for the record that even though I would have liked to have 
been a strategic partner for the Lehman Brothers--I probably 
would have been better off financially--I have spent most of my 
time during the past 32-plus years doing nothing but voting 
rights litigation. And I am now transitioning myself into a 
teaching career.
    I am here because I want to just simply state that voting 
discrimination still persists and it is very pervasive. As a 
result of my experiences during the past 30-plus years, in 
Texas from 1976 to 1986, when I was involved with the Mexican 
American Legal Defense and Educational Fund, I presented 
testimony before Congress back in 1981 when it was 
reauthorizing the 1982 Voting Rights Act Amendments. And in 
that testimony I presented a very extensive record of voting 
discrimination.
    That experience continued when I started to open up my 
voting rights practice in California, and as a result of that 
voting rights practice, I have had substantial experience in 
terms of documenting racially polarized voting, Section 5 
violations in Monterey County and in Kings County in 
California. And the impact of Section 5 has been very dramatic 
in California.
    Just to give you one illustration, in Monterey County, 
California, the Board of Supervisors had submitted a plan for 
redistricting that had to be submitted for Section 5 
preclearance. And as a result of Section 5, we were able to 
prevent the implementation of a plan that was going to divide 
and fragment a politically cohesive minority community. And if 
we did not have Section 5, then we would have had to have 
litigated under Section 2 of the Voting Rights Act. And as a 
result of a letter of objection that was issued by the Attorney 
General at that time, we were able to prevent the 
implementation of a plan that had a clear discriminatory 
effect.
    It is not just the application of just some draconian law. 
This had a dramatic impact in Monterey County. It resulted in 
the election of the first Latino supervisor in over 100 years. 
That is what Section 5 did in Monterey County.
    My experiences out there in California also demonstrated 
that there is a significant issue of noncompliance with Section 
5. As a result of the noncompliance, jurisdictions simply 
refused to submit their voting changes for approval. And, in 
fact, I was involved in two Supreme Court cases, involving, 
again, Monterey County, where you had a series of judicial 
district consolidations that had occurred from 1968 to 1983 
that had not even been submitted. It took two U.S. Supreme 
Court cases and 9 years of litigation in order for Monterey 
County and the State of California to comply.
    Most recently, in additional litigation in Monterey County, 
the county, in fact, had not submitted for preclearance a 
series of consolidations of their voting precincts, and it 
took, again, litigation. Section 5 is very much needed. And, in 
fact, just on Cinco de Mayo of this year, we had a letter of 
objection that was issued by the Attorney General against the 
North Harris, Monterey County Community College District 
because there was a reduction in voting places. It went from 84 
polling places to 12 polling places, and clearly this had a 
dramatic impact on voter participation in that community 
college district. And the Attorney General issued a letter of 
objection.
    It is just not merely one of these de minimis voting 
changes. In that particular submission to the Department of 
Justice, it was consolidated down to 12 voting precincts from 
84, and each of the newly consolidated voting precincts in the 
non-minority area, where you had the least number of Latinos, 
it was 6,500 voters. In the more heavily concentrated Latino 
voters in that district, you had 67,000 voters. That is a 
dramatic impact. That is why Section 5 is needed. And that is 
why it is needed for an additional 25 years.
    We have not gotten to the point yet, from 1982 to the 
present, where we can definitely say that we have addressed and 
resolved all the issues of voting discrimination and racially 
polarized voting. That continues to this day. And the primary 
purpose of the Voting Rights Act is to address problems that 
started with the founding of this country related to issues of 
voting. And the purpose of the Voting Rights Act as stated in 
State of South Carolina v. Katzenbach was to banish the blight 
of voting discrimination once and for all. And that is what we 
ask you to do.
    [The prepared statement of Mr. Avila appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much, Professor.
    Ms. Thernstrom?

 STATEMENT OF ABIGAIL THERNSTROM, SENIOR FELLOW, THE MANHATTAN 
  INSTITUTE, AND VICE CHAIR, U.S. COMMISSION ON CIVIL RIGHTS, 
                    LEXINGTON, MASSACHUSETTS

    Ms. Thernstrom. Thank you for the opportunity to testify 
this afternoon.
    The Supreme Court's decision in LULAC v. Perry does indeed 
have important implications for the debate over the 
reauthorization of the temporary emergency provisions of the 
Voting Rights Act. The House bill explicitly protects the 
ability of minority citizens to elect their preferred 
candidates of choice. But who qualifies as a candidate of 
choice? And what does an opportunity district look like?
    The LULAC appellants argued that Martin Frost was the 
candidate of choice for blacks, that his district was protected 
by the Voting Rights Act even though Frost is white, and his 
district, which was drawn for partisan reasons, was only 25 
percent black. The Court rejected that argument, but would it 
have done so if, let's say, the black percentage was 10 points 
higher? There are no legal standards either in place or 
proposed to answer that question.
    The problem of who counts as a minority representative runs 
through the infamous leaked Justice Department memo on 
preclearing the Texas plan. DOJ staff attorneys claimed that 
the white incumbent in District 29 was, in their words, 
``basically Hispanic;'' therefore, that Democratic district was 
protected by the Voting Rights Act. District 25 as well was 
represented by a white Democrat deemed ``responsive to minority 
interests.'' It, too, was a Voting Rights Act entitlement, 
Justice Department staff argued.
    While LULAC appellants claimed that Mr. Frost counted as a 
black representative, the Hispanic incumbent Henry Bonilla, 
they suggested, was not truly Hispanic because he was a 
Republican. And the Court did agree that taking too many 
Hispanic Democrats out of the district had deprived minority 
voters of electoral opportunity, even though the district 
remained majority Hispanic. So a Hispanic incumbent in a 
majority Hispanic district is not really Hispanic, but a white 
Congressman is described as black by DOJ staff and appellants. 
Both political parties can play such definitional games to 
further their partisan interests, and the Sensenbrenner bill, 
with its dangerously imprecise language, encourages such 
gamesmanship.
    Definitional games have long been integral to the 
Department of Justice enforcement process. Administration 
critics are charging bias in the enforcement of the 
preclearance provision--an amusing allegation given the fact 
that the Justice Department in the 1980's and 1990's used the 
Voting Rights Act to pursue an ideologically driven agenda in 
blatant conflict with Supreme Court interpretation of the 
statutory language.
    Most pertinent to LULAC, in the 1990's the Justice 
Department saw purposeful discrimination lurking in every 
districting plan that contained less than the maximum number of 
possible majority-minority districts. And, remember, in 
enforcing Section 5, mere suspicion is sufficient to deny 
preclearance.
    This history is relevant to the House bill which would 
allow objections to electoral changes on suspicion of any 
discriminatory purpose. Overturning Bossier Parish II, the bill 
would reinstate the power of the Justice Department to play 
with charges of illegal purpose, undefined, in order to reject 
districting plans it does not like, positively inviting 
partisan mischief.
    Moreover, such an open-ended definition of discriminatory 
purposes asks the Justice Department to settle broad questions 
of electoral equality that are inappropriate for a process of 
swift administrative review. Resolving such questions requires 
the specific detailed idiosyncratic knowledge of race and 
politics in a local jurisdiction that only a Federal district 
court can obtain in the course of a trial. Where discriminatory 
intent is suggested, plaintiffs can always bring a 14th 
Amendment suit. The statutory amendment is unnecessary.
    Section 5's proposed language cannot be administered like a 
highway bill. Enforcement depends on unacknowledged normative 
assumptions. The murky language of Section 2 protection against 
ill-defined discriminatory results already has courts immersed 
in what Justice Thomas, echoing Justice Frankfurter, has called 
``a hopeless project of weighing questions of political 
theory.'' But at least the project is one in which judges, 
disciplined by the structure of trials and appeals are engaged. 
Not so with the administrative of Section 5. The opaque 
language of the proposed House bill will further empower 
Justice Department attorneys who make preclearance decisions 
behind closed doors, who have no need to explain their 
reasoning, and are almost inevitably driven by normative and 
partisan convictions, which may vary from one administration to 
the next.
    America's racial landscape has fundamentally changed in the 
last 40 years. The core provisions of the Voting Rights Act are 
permanent. Basic 15th Amendment rights are secure. The issue 
today is the reauthorization of the emergency provisions that 
were constitutionally radical and, thus, initially expected to 
last only 5 years. What precisely is needed 41 years later? 
Congress has had the time, could take the time to think about 
how to answer that question with great care. I realize it is 
not likely to do so. I still wish it would.
    Thank you.
    [The prepared statement of Ms. Thernstrom appears as a 
submission for the record.]
    Senator Cornyn. Thank you very much. We will proceed to a 
round of questions.
    Senator Feingold is here, the Ranking Member of the 
Subcommittee. I would be glad to defer to you for any opening 
statement you would like to make.

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

    Senator Feingold. Thank you, Mr. Chairman. We have held 
several hearings on the Voting Rights Act, both in the full 
Committee and in this Subcommittee, and we have been fortunate 
to have several outstanding witnesses participate in this 
process. I think we have established a solid legislative record 
for this legislation.
    That said, I am glad that this is the last hearing. It is 
time to move to the next stage of the legislative process and 
to bring this bill before the Committee so that it can continue 
on to the full Senate, where it is my hope that the Majority 
Leader will bring it up for a vote before the August recess.
    The VRA expires in 2007. This law is too important to take 
up under a ticking clock of expiration. We need to complete the 
authorization process in this Congress this year. We have a 
bipartisan and bicameral consensus, and we should move forward.
    I have to say that I am puzzled by comments by some Members 
of Congress and critics who continue to argue that certain 
provisions of the Voting Rights Act are no longer necessary 
because we are living in a different era and that ``there is no 
longer racial bias'' in certain areas with a history of 
discrimination in voting rights.
    The Supreme Court in LULAC v. Perry, of course, found 
otherwise. The Court ruled that Texas did, in fact, violate 
Section 2 of the Voting Rights Act when it diluted the voting 
power of Latino voters in District 23. I do not want to take a 
whole lot of time talking about the decision because I want to 
get into the question part. But I just want to note that 
although the Court's decision gives us some indication of how 
the current Court might rule on future Voting Rights Act cases, 
it provides no justification for slowing down or holding up 
consideration of the Chairman's reauthorization bill.
    Mr. Chairman, that is the only opening statement I want to 
make. Thank you.
    Senator Cornyn. Thank you, Senator Feingold.
    Mr. Clegg, let me start with you. During the course of the 
discussions and hearings on reauthorization of Section 5 and 
Section 203, the main expressed concern is that we not pass 
legislation which will be vulnerable to a constitutional 
challenge--in other words, be engaged in a futile act insofar 
as the Supreme Court in applying the constitutional standard to 
that legislation by which they would judge it.
    Would you describe for us what you believe, if we were to 
reauthorize Section 5 in its current form as proposed, what the 
constitutional challenge would be and your assessment as to 
whether the Court would indeed uphold it or strike it down?
    Mr. Clegg. Sure, I would be delighted to. I appreciate the 
question because actually one of the things that I wanted to 
clarify, as I was listening to my colleagues' testimony here, 
is that I do not think that the Perry decision tips the Court's 
hand on what the justices are likely to do if such a challenge 
is brought. In fact----
    Senator Cornyn. Indeed, if I can interject there, Perry did 
not involve Section 5. It was a Section 2 case, right?
    Mr. Clegg. That is exactly right, and even more explicitly 
than that, Justice Scalia's opinion, which was joined by three 
other Justices, has a footnote that says, ``No party here 
raises a constitutional challenge to Section 5 as applied in 
these cases, and I assume its application is consistent with 
the Constitution.'' So, he is not saying that it is 
Constitutional; he is just saying that, because it has not been 
challenged, he is not going to address that question.
    As I explain in some detail in my written statement, I 
think that Section 5, if it is reauthorized, would be 
constitutionally vulnerable. I think it would be 
unconstitutional. I think the Court is likely to strike it 
down, and I think the Court should strike it down.
    There are basically two ways in which Section 5 is 
constitutionally vulnerable. One is that it is extraordinarily 
intrusive in matters that are generally left to the States, and 
sometimes textually committed to the States. And in addition to 
that, it uses an effects test, which the Court has said goes 
beyond Congress's authority under the 14th Amendment and the 
15th Amendment. The Court has said that you have to have 
disparate treatment in order for those amendments to be 
violated, and that if Congress goes beyond that and prohibits 
State actions that are not disparate treatment, it can do so 
only if it is congruent and proportional to stopping disparate 
treatment.
    I do not think the record has been made for that here. I 
think that the problem is compounded by the fact that some 
States are covered and other States are not. And I do not think 
that the record that Congress has now supports that 
discrimination among the different States.
    I think that what Congress would have to do in order to 
prevent a successful constitutional challenge is show that the 
covered jurisdictions have a much worse record than the non-
covered jurisdictions when it comes to intentional racial 
discrimination in 2006; and that the use of a preclearance 
mechanism and an effects test is essential in order to prevent 
that intentional discrimination. And I do not think the record 
has been made to do that, and I do not think you can make that 
record.
    Senator Cornyn. We will have a chance to ask more than one 
round, but let me, before I turn it over to Senator Feingold in 
36 seconds here, ask Mr. Carvin: Do you agree with Mr. Clegg's 
analysis or do you have a different view?
    Mr. Carvin. No, and as always it was succinctly stated, and 
with the 26 seconds left, I will just add----
    Senator Cornyn. Well, that does not apply to you. That 
applies to me.
    [Laughter.]
    Mr. Carvin. All right. Look, Roger walked through the three 
factors that are very troublesome. It reverses all the normal 
principles of federalism. It singles out, apparently on an 
arbitrary basis, what the voting patterns were in 1968, some 
States to suffer these special burdens and others to be exempt, 
for a law that will extend out to 2032--so, literally, you 
know, 70-odd years past the time that the formula used for 
triggering was existent. And, of course, the City of Boerne 
point, which is that you are exceeding the prohibitions in the 
14th and 15th Amendments, all rendered constitutionally 
vulnerable.
    The one additional point I would add is that I think that 
the provisions of the bill, Section 5 of the bill, which 
overturned Georgia v. Ashcroft as well as Bossier Parish II, 
make it even more constitutionally vulnerable because, after 
all, you are making the law more race conscious, for the 
reasons I have identified, more of a partisan preference, and 
it is very odd. And I do not think the Court will accept the 
notion that Georgia in 2006 or California in 2006 is subject to 
greater constraints on its redistricting and voting changes 
than was Mississippi in 1965. So it is very odd that 40 years 
into this process, in the face of all the tremendous gains that 
have been made in the political and electoral landscape, that 
Congress would actually be ratcheting up the burdens on the 
covered jurisdictions at this late date.
    Senator Cornyn. Ms. Thernstrom?
    Ms. Thernstrom. Could I very quickly comment on that? There 
is an additional point here. The trigger for coverage rests on 
the inference of intentional discrimination from the 
combination of low voter turnout and the presence of a literacy 
test. That statistical trigger made sense in 1965. It does not 
make sense today. And, in fact, even in 1970, when the 
emergency provisions were, of course, reauthorized for the 
first time, there was no reason to assume intentional 
discrimination on the basis of low voter turnout and the 
literacy test in, for instance, Manhattan but not in Queens--
two boroughs in New York.
    Over the years, the coverage has become increasingly 
arbitrary.
    Ms. Ifill. Might I be heard on this, Senator?
    Senator Cornyn. Sure. I will come back to you, if you do 
not mind, because I hate to intrude on Senator Feingold's time. 
So let's turn over to him. We will come back for some more 
questions. Thank you.
    Ms. Ifill. Thank you.
    Senator Feingold. Mr. Chairman, I have here 17 statements 
and letters in support of S. 2703 from a wide variety of 
organizations, companies, and prominent individuals. I ask that 
they be included in the record.
    Senator Cornyn. Without objection.
    Senator Feingold. Mr. Chairman, I would ask Professor Ifill 
to say what she would like to say.
    Ms. Ifill. Thank you. I wanted to comment on just a couple 
of the points that were made, to first of all comment on the 
concern that Section 5 reauthorization would be 
unconstitutional because it violates principles of federalism.
    The Supreme Court has reviewed on several occasions this 
claim and this contention, and, in fact, in LULAC v. Perry, 
Justice Scalia, joined by the three most conservative members 
of the Court, repeats what the Supreme Court held years ago in 
South Carolina v. Katzenbach. And what he said in LULAC v. 
Perry in determining that compliance with Section 5 would 
constitute a compelling State interest that would justify race-
conscious districting, ``We long ago upheld the 
constitutionality of Section 5 as a proper exercise of 
Congress's authority under Section 2 of the 15th Amendment to 
enforce that Amendment's prohibition on the denial or 
abridgment of the right to vote.''
    I read that sentence as making it quite clear that there is 
no new threat to the constitutionality of Section 5 based on 
the question of federalism and intrusion into State control.
    Second, with regard to the use of the effects test and the 
requirement that when that test is used, it be done so in a way 
that is congruent and proportional--and as that relates to the 
question of the States that are covered and the trigger 
mechanism--it seems to me here that one has to read the Act as 
part of a whole. The Act requires that there are certain States 
that, based on the trigger, are covered by Section 5. But the 
Act also permits States and jurisdictions to bail out if they 
are able to prove that they no longer engage in discrimination. 
And it also provides opportunities for jurisdictions to be 
bailed in through the pocket trigger.
    And if one reads the entire statute together, then what it 
looks like is a rational and workable way in which Congress can 
target the jurisdictions that have the longest and most 
egregious history of discrimination, a history that in many 
jurisdictions, as evidenced in LULAC v. Perry, is unbroken as 
it relates to racially polarized voting and discrimination in 
redistricting; and then provide mechanisms so that States or 
jurisdictions can be relieved of their obligations under 
Section 5, or States or jurisdictions where they should be 
covered by Section 5 can be required to engage in preclearance.
    So if one reads it all together, it seems to me it provides 
a rational and workable scheme that Congress is well within its 
authority under Section 5 to create--to enforce its obligations 
under the 15th Amendment.
    Senator Feingold. Ms. Perales, Professor Ifill anticipated 
the question I was going to ask you. With all the hand-wringing 
we have heard about the possible constitutional problems of 
Section 5, including from Mr. Clegg just now, do you believe 
that it is an open question at this point in the minds of the 
Justices on the Supreme Court?
    Ms. Perales. No, it is absolutely not an open question. I 
would also like to address with respect to 203, which somehow 
floated into our discussion of this case, even though this case 
has nothing to do with Section 203, that there are still, of 
course, many hundreds of thousands of voters, even just in my 
State of Texas, who suffer from intentional discrimination as a 
result and who as a result do not have--did not have the 
opportunity to learn English--these are native-born citizens--
and who need the bilingual provisions of the Voting Rights Act 
and for whom, of course, this is perfectly constitutional, and 
no serious scholar challenges the constitutionality of Section 
203.
    Senator Feingold. Ms. Perales and Professor Ifill, Mr. 
Clegg stated in his written testimony that, ``The Voting Rights 
Act has become an instrument for partisan gerrymandering.'' I 
happen to disagree with Mr. Clegg and was hoping you would 
please share your views on this characterization. Ms. Perales?
    Ms. Perales. I would like to address that. Thank you.
    I know that there is concern about this, and I think some 
of it arises from confusion by observers about the LULAC v. 
Perry case. There is confusion about which claims were raised 
by which appellants, and also which claims were upheld and 
which ones were not. So I would like to make clear, first of 
all, that there is nothing in LULAC v. Perry, for example, that 
creates confusion around the question of who is the preferred 
candidate of minority voters. This is, of course, very well 
established in the area of voting rights law. And in this 
particular case, the Supreme Court ruled that the incumbent in 
District 23 was not preferred by Latino voters because he only 
received 8 percent of the support from Latino voters in his 
district--not a close call, not a confusing question in the 
least.
    Similarly, the Court had no problem concluding District 23 
was an opportunity district. This is also very well established 
and not confusing in this case or in any other area.
    I wanted to add that for Latinos, particularly in the 
Southwest, opportunity to elect often involves comprising the 
majority of the district, and so for that reason, the language 
in the current bill, now transitioning to the bill that you 
have before you, regarding opportunity to elect the preferred 
candidate is not language that expands the protection of the 
Voting Rights Act to influence district. It talks about 
opportunity to elect, not ability to chime in. And these are 
important words. They mean something. Opportunity to elect, as 
I mentioned before, for us often means comprising the majority 
or--in fact, it almost always means comprising the majority for 
us, particularly in Texas. It may also mean coalition, but it 
does not mean--and I am hereby referring to the three 
categories that were set out in Georgia v. Ashcroft--coalition, 
influence, and majority district.
    It does not do what Mr. Carvin--disagreeing respectfully 
with my colleague, it does not do what he says it does. It is a 
limited fix to a decision that is, in our opinion, not correct.
    Finally, with respect to Bossier II and the language in the 
bill, Bossier II, if limited by the language in the bill, would 
not unleash a frenzy of maximization in redistricting. It would 
only mean that actions taken with the purpose of racial 
discrimination would violate Section 5. Again, very limited, 
and thus, overall, I do not think that any of these measures 
nor the decision in LULAC v. Perry really does inject 
partisanship into the Voting Rights Act. And I say that because 
we did not litigate Democratic claims, we did not litigate 
Republican claims, and our claims were the only ones that were 
upheld.
    Senator Feingold. Professor Ifill?
    Ms. Ifill. Senator, I have in the last year heard the 
Voting Rights Act blamed for partisan gerrymandering, 
residential segregation, people identifying themselves by race, 
and a whole list of other of society's ills, all of which 
existed prior to the enactment of the Voting Rights Act in 1965 
in the United States and which continued to exist in the United 
States but are most certainly not caused by the Voting Rights 
Act.
    Earlier, Mr. Carvin said that the Voting Rights Act has now 
injected race in such a way into a statute that was designed to 
assure racial neutrality, and respectfully, I disagree. Section 
5 was not actually designed to assure racial neutrality. By 
requiring that jurisdictions submit any voting changes to the 
Department of Justice or to the D.C. District Court, Section 5 
of the Act required jurisdictions to actually make an 
assessment, to look at race, to determine whether or not a plan 
that they were proposing would result in the diminution of 
voting strength, of minority voting strength.
    It is important to remember that from the outset the Voting 
Rights Act was explicitly targeted at race. It recognized that 
the exclusion of racial minorities from full participation in 
the political process is one of the worst ills in a democratic 
society. And under Congress's enforcement power under the 15th 
Amendment, Congress was authorized to take drastic action to 
address that problem. So the Voting Rights Act is not a race-
neutral act. It is a race-conscious act.
    And then, finally, I would just note with regard to the 
issue of the districts that were subject to dispute in LULAC v. 
Perry, I find it quite curious and interesting that several of 
the districts that were in dispute--District 23 that was 
dismantled and later District 24--had, it seems to me, the 
kinds of characteristics that I have heard Ms. Thernstrom over 
the years and others say we would want in our political system. 
District 24 was an integrated district with a 50-percent Anglo 
population, a 25-percent African-American population, and I 
believe a 20-percent Latino population. The candidate of choice 
of black voters in that district was a white person--Martin 
Frost. I thought those were the kinds of outcomes that we 
wanted to see happen, that we wanted to move away from assuming 
that black voters had to support only black candidates and 
white voters only white candidates.
    District 23, likewise, was a district in which Latino 
voters did not support the Latino incumbent. Once again, the 
voters were exercising their political choice not based on 
race, but based on the interests of their community. And yet 
those districts are not lauded and held up as the kind of goal 
that we sought with the Voting Rights Act. But instead those 
districts are called the result of partisan gerrymandering.
    Senator Feingold. Professor Avila, I am out of my time, but 
if you want to just quickly, if the Chairman would permit, make 
a comment.
    Mr. Avila. I just wanted very briefly to add that in terms 
of whether Section 5 is involved with partisanship, well over--
there are about 1,100 letters of objection that have been 
issued by the U.S. Department of Justice under Section 5 and 
well over probably around 90 percent of all of those have 
involved nonpartisan city council races, have involved 
nonpartisan school district races, have involved nonpartisan 
special election district, nonpartisan county commissioners.
    So Section 5 is not about partisanship. It is about 
providing political access to minorities.
    Senator Feingold. Mr. Chairman, thank you for the 
additional time.
    Senator Cornyn. Sure.
    I would like to get the reaction from each of you to this 
question. This bill is predicated on election returns in 1964, 
1968, and 1972. My question is: Wouldn't it make better sense 
to determine what the coverage of Section 5 is to base them on 
elections most recent in time, 2000, 2004 Presidential 
elections? And I would like for you as part of the question to 
note that African-American voter registration now in the areas 
covered by Section 5 exceeds that of the U.S. generally. And, 
finally, as part of the question, since 1995, the highest 
percentage of objections sustained to submissions by covered 
districts, the highest was less than one-half of 1 percent. 
That is from 1995 to the most current we have. For example, 
2005, it was 3,811 submissions and only one objection 
sustained.
    I would like to get your reaction, each of you, to both the 
triggers of those elections predicated on 1964, 1968, 1972, why 
it does not make more sense to trigger that with 2000 and 2004, 
and particularly get your explanation as to why you think that 
coverage under those jurisdictions that are covered by Section 
5 where African-American voter registration exceeds that of the 
Nation generally and what this sort of ratio of objections to 
submissions, why that makes sense. Mr. Clegg?
    Mr. Clegg. I think you are exactly right. I think that it 
makes perfect sense in 2006 to re-evaluate where we are as a 
Nation in terms of discrimination in voting. I do not believe 
that there is no longer any discrimination in voting. I do not 
know anybody who believes that. Of course, there are still 
instances of racial discrimination in voting.
    But the question is whether that kind of disparate 
treatment exists to a degree and in the kind of pattern that 
supports the approach that was written into this bill 41 years 
ago. And, therefore, I think Congress needs to look throughout 
the United States to see whether there is still disparate 
treatment and to what degree. One thing Congress can look at to 
determine that is voter registration patterns, but there may be 
other things that it needs to look at, too.
    You also need to compare whatever evidence of 
discrimination you find in the covered jurisdictions--to the 
extent of discrimination that you find in non-covered 
jurisdictions if you are going to continue to single out some 
jurisdictions and not others.
    And, finally, you need to ask whether the appropriate 
mechanism for fighting that disparate treatment is the 
preclearance mechanism because of the federalism problems that 
it raises, and whether it includes an effects test, because of 
the constitutional problems that an effects test raises and 
because of the fact that the use of the effects test has 
actually encouraged racial discrimination and racial 
gerrymandering.
    Senator Cornyn. Professor Ifill?
    Ms. Ifill. With regard to the trigger, Senator, I think 
what underlies that question is whether or not one regards the 
history of egregious discrimination in the jurisdictions that 
are covered by Section 5 to be relevant, to have continuing 
relevance to the question of monitoring under Section 5. And I 
think that most scholars and most litigators in the voting 
rights area would agree that that history is relevant.
    The triggers that were found were used to reflect that 
history of discrimination. Registration can be a symptom of the 
problem, but registration itself is not necessarily the 
problem. And so Congress used these triggers as a way of 
identifying those jurisdictions that reflected through these 
symptoms that history of discrimination. But it certainly did 
not suggest that that is the only way and that is the benchmark 
by which we determine that a jurisdiction has a problem with 
discrimination in voting. And that is why once again I suggest 
that it is important to look at the Act as a whole, to 
recognize that Congress has anticipated both a way in and a way 
out for jurisdictions that discriminate that are not covered by 
the preclearance formula and for jurisdictions that are covered 
by the preclearance formula but that can demonstrate that they 
do not engage in discrimination. And read as a whole, it seems 
to me there is nothing wrong with continuing to use the trigger 
formula that was based on that history of discrimination.
    With regard to the second question about DOJ objections, I 
think that the number of objections, really, if you look at 
that in the abstract, fails to really account for the deterrent 
effect of Section 5 preclearance, and that is that many 
jurisdictions respond to the Department of Justice in a variety 
of ways. Sometimes jurisdictions withdraw the proposed change. 
In other instances, the Department of Justice asks for more 
information, and jurisdictions provide that additional 
information which can result in a change in the plan.
    And so the whole process, the whole reality that one has to 
submit the plan for preclearance means that jurisdictions take 
care and, as I suggest, are required to look at their plans to 
determine whether or not they are retrogressive, and it is also 
true that the administration by the Justice Department in 
reviewing those plans very often results in a change in plans 
that are submitted or the withdrawal of plans. And without 
taking into account that information, I think you cannot really 
read very much from the fact that the number of objections 
themselves are small.
    Senator Cornyn. Ms. Perales?
    Ms. Perales. Thank you. Just briefly, I will do the 
Southwest spin on this, which is that many of the Southwestern 
States were brought into coverage under Section 5 through the 
use of the trigger in 1972. That, of course, is perfectly 
appropriate, and, in fact, these jurisdictions still merit the 
supervision of Section 5 as evidenced by the continued 
discrimination found both by the Justice Department as well as 
the Court, for example, in Texas, where we have had both a DOJ 
objection statewide in this decade as well as the Supreme Court 
finding of discrimination in violation of the Voting Rights Act 
in this decade. This tells us that the initial trigger is still 
very useful and very viable.
    Similarly, with respect to Arizona, Arizona has also had 
statewide objections this decade and in, I believe, the 
previous two decades with respect to statewide plans.
    Finally, with respect to the number of submissions to the 
Justice Department and how many objections are made, there are 
still very important objections being made, and even this 
number of them is making a tremendous difference for minority 
voters. And as I mentioned, the objections in Texas, the 
objections in Arizona, which are just the statewide ones that I 
am mentioning, but also at the local level there are objections 
that are helping every day, every year helping minority voters 
participate on an equal footing with others.
    As Professor Avila mentioned, we cannot discount the 
widespread noncompliance. There are many, many, many 
jurisdictions that are simply not submitting their changes and 
violate Section 5 when they implement them.
    And, finally, I wanted to give an example of the deterrence 
effect of Section 5 in the city of Seguin, which is in between 
Austin, Houston, and San Antonio. The city of Seguin, when they 
found out that they had a majority of districts in their city 
council plan that were going to be Latino in the upcoming 
redistricting, they dismantled one of those districts so as not 
to have a Latino majority in the city council. This, of course, 
is nonpartisan elections.
    When they submitted this plan to the Justice Department, 
the Justice Department expressed concerns, asked for more 
information. As a result, that plan was withdrawn and a better 
plan, one that actually reflected the Latino majority of the 
city and the five council districts was ultimately submitted. 
And so this is an example that I can think of from my 
experience where Section 5 worked exactly the way it should, 
even though there was not an objection interposed by the 
Justice Department.
    Senator Cornyn. Before Mr. Carvin answers, let me just get 
a quick answer from Professor Ifill and Ms. Perales. If you 
think Section 5 serves a useful deterrent effect when it comes 
to discrimination against minority voting, do you support its 
extension beyond the covered jurisdictions?
    Ms. Ifill. Well, I simply just do not think it would be 
possible for the Department of Justice to administer what you 
are referring to as a kind of nationwide coverage of Section 5. 
I think it would essentially be the death knell for Section 5. 
I think it would be impossible to----
    Senator Cornyn. Do you think it is desirable if it were 
possible?
    Ms. Ifill. I think it makes more sense, frankly, for 
Congress to utilize a program that is a workable program and 
one that is based on a history of discrimination in particular 
jurisdictions, and as Congress has done, to provide the 
opportunity to expand that coverage where appropriate and to 
remove that coverage where appropriate. It seems to me that 
makes the most sense rather than being overbroad. And, of 
course, being overbroad would naturally run one into a 
constitutional problem.
    Senator Cornyn. Ms. Perales, do you agree, or do you have a 
different----
    Ms. Perales. Yes, I do agree. It is not appropriate to 
expand Section 5 coverage nationwide.
    Senator Cornyn. Mr. Carvin?
    Mr. Carvin. Well, that touches on, of course, the 
fundamental dilemma here, which is nobody is denying that 
discrimination exists, but what the record makes fundamentally 
clear is that there is no rational way of suggesting that the 
covered jurisdictions have more ongoing official discrimination 
than the non-covered jurisdictions, whatever benchmark or 
analysis you use--voter turnout, election intimidation.
    The House report is actually very interesting because I 
think if you look at it, you will see that the examples they 
come up with and the analysis they come up with of what people 
would consider real voting discrimination exists 
disproportionately, far disproportionately in the non-covered 
jurisdictions than it does in the covered jurisdictions.
    So you have to ask yourself whether or not, to go back to 
the quote that has been bandied about here from Justice Scalia, 
whether or not there is some rationale of official 
discrimination which justifies this extraordinary disparate 
treatment. I cannot understand why Monterey County is viewed 
somehow in California worse than Arkansas or Oklahoma, and I do 
not think any rational person could suggest that the problems 
there are so different in kind that this extraordinarily 
differential treatment from the Federal Government is 
authorized.
    There has been some discussion here of bail-out and bail-in 
provisions, but we all know that the bail-in provisions are 
virtually nonexistent, and the bail-out provisions cannot be 
used because if you have one statewide objection, it basically 
condemns all the subordinate political jurisdictions to being 
kept in. If it really is fair to look at circumstances as they 
exist in 2006 or 2020 or 2030, it would make a lot more sense 
not to have these relatively meaningless bail-out and bail-in 
provisions, but have a formula that is tied to some objective 
benchmark of minority opportunity and voter participation, all 
of which were proposed in the House and I think should be taken 
up by the Senate when it comes time to consider the bill.
    Thank you.
    Senator Cornyn. Professor Avila?
    Mr. Avila. Yes, I would like to just say I agree with 
Professor Ifill's comments with respect to the triggering 
concerns. I would just like to add with respect to the issue of 
the number of letters of objection to the number of 
submissions, as I indicated earlier, there is a substantial 
issue of noncompliance and it is just not me saying this. In 
1968, the U.S. Civil Rights Commission indicated that there was 
a substantial issue of noncompliance. In 1970, when the Act was 
reauthorized, Congress again noted in testimony before Congress 
that there was a substantial issue of noncompliance.
    In 1975, the same thing occurred. In 1978, you had a GAO 
report that documented the fact that there was a substantial 
issue of noncompliance. You had the Supreme Court in Perkins v. 
Matthew document that there was a substantial issue of 
noncompliance.
    In 1982, you had Drew Days, who was the Assistant Attorney 
General for the Civil Rights Division, testifying before 
Congress that there was a substantial issue of noncompliance.
    In 1999 and 1996, the Supreme Court in Lopez v. Monterey 
County, as I stated earlier, was dealing with judicial district 
consolidations. They had not been submitted from 1968, so the 
issue of noncompliance is very significant.
    We have been doing some initial studies in various counties 
in California, and there are hundreds of annexations that have 
not been submitted for Section 5 preclearance. So that might in 
some part explain why we have this small number of letters of 
objection.
    Senator Cornyn. Ms. Thernstrom?
    Ms. Thernstrom. Well, updating the trigger using simply 
2004 turnout would just continue the arbitrary nature of the 
coverage, and it is arbitrary.
    Look, in 1965, those who designed the Voting Rights Act 
knew precisely which jurisdictions needed to be covered, and 
they designed a statistical trigger to cover those 
jurisdictions; that is, they knew where you had a literacy test 
and low voter participation, the combination of black and white 
voter participation, under 50 percent--they picked the 50-
percent statistic very carefully in order to get the right 
jurisdictions. Where you had that combination of a literacy 
test and low voter participation, you knew that that low voter 
participation was an indication of the intentional fraudulent 
use of literacy tests to disenfranchise blacks.
    There is no, there never was in interpreting this Act, an 
argument that low voter participation or participation under 
the 50-percent mark standing alone was an indication of 
intentional discrimination. And, indeed, the only reason, for 
instance, New York was covered in the 1970 reauthorization is 
because in that low turnout year, three boroughs in New York, 
but not the other two boroughs, fell just below the 50-percent 
turnout. So you had this arbitrary coverage.
    The complaints today about electoral discrimination, the 
complaints in 2000 and 2004 involved--in 2000, Florida counties 
that were not covered by the Voting Rights Act; in 2004, States 
like Ohio, not covered by the Voting Rights Act. I was part of 
an instrumental team that commissioned studies for the American 
Enterprise Institute. They are on the AEI website, showing 
levels of voter participation in the South, showing how high 
they are, higher than in the North in many States.
    You know, as Richard Hasen, a law professor who is for the 
reauthorization of Section 5, has said, ``Bull Connor is 
dead.'' And the racial landscape in America has changed. This 
bill does not reflect that. Updating the trigger in an 
arbitrary manner to 2004 turnout would not reflect that change 
either. The bill needs to come into conformity with racial 
reality more than four decades down the road. And four decades 
in civil rights time, you are talking about a revolution in 
racial attitudes in this country and the status of blacks, and 
Hispanics, who were, of course, not covered in 1965. But 
obviously the revolution has been particularly striking with 
respect to African Americans.
    Now, in terms of bail-out possibilities, for the reasons 
that Mike Carvin just said, bail-out is a joke. And that is the 
reason why few jurisdictions have indeed bailed out. And as for 
the deterrent effect, look, yes, lots of States were forced, in 
order to get the Justice Department off their back in the 
1990's, to draw maps that had a maximum number of majority-
minority districts that came as close to proportional racial 
and ethnic representation as possible. I did not think 
proportional racial and ethnic representation was a value that 
was built into the Voting Rights Act, but it was what the 
Justice Department was insisting on. So the deterrent effect, 
in effect, forced jurisdictions to do what the Voting Rights 
Act never should have forced them to do, which violates basic 
American values. If you want to see that story, it is spelled 
out very nicely by the Supreme Court in Miller v. Johnson. You 
have to look at the district court opinion as well as the 
Supreme Court opinion.
    But it is a disgraceful story, and so I do not buy this 
whole argument about a deterrent effect, given the standards 
that the Justice Department has been using, which have nothing 
to do or not much to do with the actual statute.
    Senator Cornyn. This has, I know, been a long afternoon for 
you. We are going to have to wrap it up now because we actually 
have a meeting of several members of the Judiciary Committee on 
this subject at 5:15. I am going to have to leave. But we will 
leave the record open so that those members who were unable to 
come this afternoon--it has been a particularly hectic day and 
week. So that is the reason why--not for lack of interest--that 
people have not been here. We will leave the record open for 1 
week for them to submit any additional questions in writing or 
submit any other materials for the record.
    Without objection, I am going to put in the record a number 
of articles, editorials, and statements by scholars and 
journalists that raise questions about the reauthorization as 
drafted. In addition, there is a report of the U.S. Commission 
on Civil Rights which will also be made part of the record.
    In conclusion, let me just thank each of you for being here 
and sharing with us your expertise and point of view. This is 
enormously important for all the reasons that we have 
discussed, and we are much better off for having your 
contribution.
    Thank you very much.
    [Whereupon, at 5:12 p.m., the Subcommittee was adjourned.]
    [Questions and answers, submissions for the record and an 
appendix follow.]

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