House Report 109-478 - FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006

[House Report 109-478]
[From the U.S. Government Publishing Office]

109th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 109-478

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FANNIE LOU HAMER, ROSA PARKS, AND CORETTA SCOTT KING VOTING RIGHTS ACT
REAUTHORIZATION AND AMENDMENTS ACT OF 2006

_______

May 22, 2006.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed

_______

Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the
following

R E P O R T

[To accompany H.R. 9]

[Including cost estimate of the Congressional Budget Office]

The Committee on the Judiciary, to whom was referred the bill
(H.R. 9) to amend the Voting Rights Act of 1965, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill as amended do pass.

CONTENTS

Page
The Amendment.................................................... 1
Purpose and Summary.............................................. 4
Background and Need for the Legislation.......................... 5
Hearings......................................................... 85
Committee Consideration.......................................... 85
Vote of the Committee............................................ 85
Committee Oversight Findings..................................... 88
New Budget Authority and Tax Expenditures........................ 88
Congressional Budget Office Cost Estimate........................ 88
Performance Goals and Objectives................................. 90
Constitutional Authority Statement............................... 90
Section-by-Section Analysis and Discussion....................... 90
Changes in Existing Law Made by the Bill, as Reported............ 95
Markup Transcript................................................ 104

The Amendment

The amendment is as follows:
Strike all after the enacting clause and insert the
following:

SECTION. 1. SHORT TITLE.

This Act may be cited as the ``Fannie Lou Hamer, Rosa Parks, and
Coretta Scott King Voting Rights Act Reauthorization and Amendments Act
of 2006''.

SEC. 2. CONGRESSIONAL PURPOSE AND FINDINGS.

(a) Purpose.--The purpose of this Act is to ensure that the right
of all citizens to vote, including the right to register to vote and
cast meaningful votes, is preserved and protected as guaranteed by the
Constitution.
(b) Findings.--The Congress finds the following:
(1) Significant progress has been made in eliminating first
generation barriers experienced by minority voters, including
increased numbers of registered minority voters, minority voter
turnout, and minority representation in Congress, State
legislatures, and local elected offices. This progress is the
direct result of the Voting Rights Act of 1965.
(2) However, vestiges of discrimination in voting continue
to exist as demonstrated by second generation barriers
constructed to prevent minority voters from fully participating
in the electoral process.
(3) The continued evidence of racially polarized voting in
each of the jurisdictions covered by the expiring provisions of
the Voting Rights Act of 1965 demonstrates that racial and
language minorities remain politically vulnerable, warranting
the continued protection of the Voting Rights Act of 1965.
(4) Evidence of continued discrimination includes--
(A) the hundreds of objections interposed, requests
for more information submitted followed by voting
changes withdrawn from consideration by jurisdictions
covered by the Voting Rights Act of 1965, and section 5
enforcement actions undertaken by the Department of
Justice in covered jurisdictions since 1982 that
prevented election practices, such as annexation, at-
large voting, and the use of multi-member districts,
from being enacted to dilute minority voting strength;
(B) the number of requests for declaratory
judgments denied by the United States District Court
for the District of Columbia;
(C) the continued filing of section 2 cases that
originated in covered jurisdictions; and
(D) the litigation pursued by the Department of
Justice since 1982 to enforce sections 4(e), 4(f)(4),
and 203 of such Act to ensure that all language
minority citizens have full access to the political
process.
(5) The evidence clearly shows the continued need for
Federal oversight in jurisdictions covered by the Voting Rights
Act of 1965 since 1982, as demonstrated in the counties
certified by the Attorney General for Federal examiner and
observer coverage and the tens of thousands of Federal
observers that have been dispatched to observe elections in
covered jurisdictions.
(6) The effectiveness of the Voting Rights Act of 1965 has
been significantly weakened by the United States Supreme Court
decisions in Reno v. Bossier Parish II and Georgia v. Ashcroft,
which have misconstrued Congress' original intent in enacting
the Voting Rights Act of 1965 and narrowed the protections
afforded by section 5 of such Act.
(7) Despite the progress made by minorities under the
Voting Rights Act of 1965, the evidence before Congress reveals
that 40 years has not been a sufficient amount of time to
eliminate the vestiges of discrimination following nearly 100
years of disregard for the dictates of the 15th amendment and
to ensure that the right of all citizens to vote is protected
as guaranteed by the Constitution.
(8) Present day discrimination experienced by racial and
language minority voters is contained in evidence, including
the objections interposed by the Department of Justice in
covered jurisdictions; the section 2 litigation filed to
prevent dilutive techniques from adversely affecting minority
voters; the enforcement actions filed to protect language
minorities; and the tens of thousands of Federal observers
dispatched to monitor polls in jurisdictions covered by the
Voting Rights Act of 1965.
(9) The record compiled by Congress demonstrates that,
without the continuation of the Voting Rights Act of 1965
protections, racial and language minority citizens will be
deprived of the opportunity to exercise their right to vote, or
will have their votes diluted, undermining the significant
gains made by minorities in the last 40 years.

SEC. 3. CHANGES RELATING TO USE OF EXAMINERS AND OBSERVERS.

(a) Use of Observers.--Section 8 of the Voting Rights Act of 1965
(42 U.S.C. 1973f) is amended to read as follows:
``Sec. 8. (a) Whenever--
``(1) a court has authorized the appointment of observers
under section 3(a) for a political subdivision; or
``(2) the Attorney General certifies with respect to any
political subdivision named in, or included within the scope
of, determinations made under section 4(b), unless a
declaratory judgment has been rendered under section 4(a),
that--
``(A) the Attorney General has received written
meritorious complaints from residents, elected
officials, or civic participation organizations that
efforts to deny or abridge the right to vote under the
color of law on account of race or color, or in
contravention of the guarantees set forth in section
4(f)(2) are likely to occur; or
``(B) in the Attorney General's judgment
(considering, among other factors, whether the ratio of
nonwhite persons to white persons registered to vote
within such subdivision appears to the Attorney General
to be reasonably attributable to violations of the 14th
or 15th amendment or whether substantial evidence
exists that bona fide efforts are being made within
such subdivision to comply with the 14th or 15th
amendment), the assignment of observers is otherwise
necessary to enforce the guarantees of the 14th or 15th
amendment;
the Director of the Office of Personnel Management shall assign
as many observers for such subdivision as the Director may deem
appropriate.
``(b) Except as provided in subsection (c), such observers shall be
assigned, compensated, and separated without regard to the provisions
of any statute administered by the Director of the Office of Personnel
Management, and their service under this Act shall not be considered
employment for the purposes of any statute administered by the Director
of the Office of Personnel Management, except the provisions of section
7324 of title 5, United States Code, prohibiting partisan political
activity.
``(c) The Director of the Office of Personnel Management is
authorized to, after consulting the head of the appropriate department
or agency, designate suitable persons in the official service of the
United States, with their consent, to serve in these positions.
``(d) Observers shall be authorized to--
``(1) enter and attend at any place for holding an election
in such subdivision for the purpose of observing whether
persons who are entitled to vote are being permitted to vote;
and
``(2) enter and attend at any place for tabulating the
votes cast at any election held in such subdivision for the
purpose of observing whether votes cast by persons entitled to
vote are being properly tabulated.
``(e) Observers shall investigate and report to the Attorney
General, and if the appointment of observers has been authorized
pursuant to section 3(a), to the court.''.
(b) Modification of Section 13.--Section 13 of the Voting Rights
Act of 1965 (42 U.S.C. 1973k) is amended to read as follows:
``Sec. 13. (a) The assignment of observers shall terminate in any
political subdivision of any State--
``(1) with respect to observers appointed pursuant to
section 8 or with respect to examiners certified under this Act
before the date of the enactment of the Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthorization
and Amendments Act of 2006, whenever the Attorney General
notifies the Director of the Office of Personnel Management, or
whenever the District Court for the District of Columbia
determines in an action for declaratory judgment brought by any
political subdivision described in subsection (b), that there
is no longer reasonable cause to believe that persons will be
deprived of or denied the right to vote on account of race or
color, or in contravention of the guarantees set forth in
section 4(f)(2) in such subdivision; and
``(2) with respect to observers appointed pursuant to
section 3(a), upon order of the authorizing court.
``(b) A political subdivision referred to in subsection (a)(1) is
one with respect to which the Director of the Census has determined
that more than 50 per centum of the nonwhite persons of voting age
residing therein are registered to vote.
``(c) A political subdivision may petition the Attorney General for
a termination under subsection (a)(1).''.
(c) Repeal of Sections Relating to Examiners.--Sections 6, 7, and 9
of the Voting Rights Act of 1965 (42 U.S.C. 1973d, 1973e and 1973g) are
repealed.
(d) Substitution of References to ``Observers'' for References to
``Examiners''.--
(1) Section 3(a) of the Voting Rights Act of 1965 (42
U.S.C. 1973a(a)) is amended by striking ``examiners'' each
place it appears and inserting ``observers''.
(2) Section 4(a)(1)(C) of the Voting Rights Act of 1965 (42
U.S.C. 1973b(a)(1)(C)) is amended by inserting ``or observers''
after ``examiners''.
(3) Section 12(b) of the Voting Rights Act of 1965 (42
U.S.C. 1973j(b)) is amended by striking ``an examiner has been
appointed'' and inserting ``an observer has been assigned''.
(4) Section 12(e) of the Voting Rights Act of 1965 (42
U.S.C. 1973j(e)) is amended--
(A) by striking ``examiners'' and inserting
``observers''; and
(B) by striking ``examiner'' each place it appears
and inserting ``observer''.
(e) Conforming Changes Relating to Section References.--
(1) Section 4(b) of the Voting Rights Act of 1965 (42
U.S.C. 1973b(b)) is amended by striking ``section 6'' and
inserting ``section 8''.
(2) Subsections (a) and (c) of section 12 of the Voting
Rights Act of 1965 (42 U.S.C. 1973j(a) and 1973j(c)) are each
amended by striking ``7,''.
(3) Section 14(b) of the Voting Rights Act of 1965 (42
U.S.C. 1973l(b)) is amended by striking ``or a court of appeals
in any proceeding under section 9''.

SEC. 4. RECONSIDERATION OF SECTION 4 BY CONGRESS.

Paragraphs (7) and (8) of section 4(a) of the Voting Rights Act of
1965 (42 U.S.C. 1973b(a)) are each amended by striking ``Voting Rights
Act Amendments of 1982'' and inserting ``Fannie Lou Hamer, Rosa Parks,
and Coretta Scott King Voting Rights Act Reauthorization and Amendments
Act of 2006''.

SEC. 5. CRITERIA FOR DECLARATORY JUDGMENT.

Section 5 of the Voting Rights Act of 1965 (42 U.S.C. 1973c) is
amended--
(1) by inserting ``(a)'' before ``Whenever'';
(2) by striking ``does not have the purpose and will not
have the effect'' and inserting ``neither has the purpose nor
will have the effect''; and
(3) by adding at the end the following:
``(b) Any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting that has the
purpose of or will have the effect of diminishing the ability of any
citizens of the United States on account of race or color, or in
contravention of the guarantees set forth in section 4(f)(2), to elect
their preferred candidates of choice denies or abridges the right to
vote within the meaning of subsection (a) of this section.
``(c) The term `purpose' in subsections (a) and (b) of this section
shall include any discriminatory purpose.
``(d) The purpose of subsection (b) of this section is to protect
the ability of such citizens to elect their preferred candidates of
choice.''.

SEC. 6. EXPERT FEES AND OTHER REASONABLE COSTS OF LITIGATION.

Section 14(e) of the Voting Rights Act of 1965 (42 U.S.C. 1973l(e))
is amended by inserting ``, reasonable expert fees, and other
reasonable litigation expenses'' after ``reasonable attorney's fee''.

SEC. 7. EXTENSION OF BILINGUAL ELECTION REQUIREMENTS.

Section 203(b)(1) of the Voting Rights Act of 1965 (42 U.S.C.
1973aa-1a(b)(1)) is amended by striking ``2007'' and inserting
``2032''.

SEC. 8. USE OF AMERICAN COMMUNITY SURVEY CENSUS DATA.

Section 203(b)(2)(A) of the Voting Rights Act of 1965 (42 U.S.C.
1973aa-1a(b)(2)(A)) is amended by striking ``census data'' and
inserting ``the 2010 American Community Survey census data and
subsequent American Community Survey data in 5-year increments, or
comparable census data''.

SEC. 9. STUDY AND REPORT.

The Comptroller General shall study the implementation,
effectiveness, and efficiency of the current section 203 of the Voting
Rights Act of 1965 and alternatives to the current implementation
consistent with that section. The Comptroller General shall report the
results of that study to Congress not later than 1 year after the date
of the enactment of this Act.

Purpose and Summary

The purpose of H.R. 9 is to: (1) extend Section 4(a)(8) and
Section 203(b)(1), the temporary provisions of the Voting
Rights Act of 1965 currently set to expire on August 6, 2007,
for another 25 years; and (2) amend Section 3(a), Section 4,
Section 5, Section 6, Section 7, Section 8, Section 9, Section
14, and Section 203. These changes are necessary to update
certain provisions of the Voting Rights Act of 1965 (the
``VRA'') to reflect the current voting environment and to
restore the original intent of Congress in enacting the
temporary provisions of the VRA.

Background and Need for the Legislation

H.R. 9 results from the development of one of the most
extensive legislative records in the Committee on the
Judiciary's history.

LEGISLATIVE HISTORY OF H.R. 9

Oversight Hearings
Prior to introducing H.R. 9, the House Committee on the
Judiciary held ten oversight hearings before the Subcommittee
on the Constitution examining the effectiveness of the
temporary provisions of the VRA over the last 25 years. During
these oversight hearings, the Subcommittee heard oral testimony
from 39 witnesses, including State and local elected officials,
scholars, attorneys, and other representatives from the voting
and civil rights community. The Committee also received
additional written testimony from the Department of Justice,
other interested governmental and non-governmental
organizations (NGOs), and private citizens. In all, the
Committee assembled over 12,000 pages of testimony, documentary
evidence and appendices from over 60 groups and individuals,
including several Members of Congress.
In addition to the oral and written testimony, the
Committee requested, received, and incorporated into its
hearing record two comprehensive reports that have been
compiled by NGOs that have expertise in voting rights
litigation and extensively documented: (1) the extent to which
discrimination against minorities in voting has and continues
to occur; and (2) the continued need for the expiring
provisions of the VRA. The Committee also requested, received,
and incorporated into its record 11 separate reports that
document the extent to which discrimination occurred in 11 of
the 16 States covered in whole or in part under Section 4(b)
over the last 25 years. Those reports also describe the impact
that the VRA has had on protecting racial and language minority
citizens from discriminatory voting techniques in those
jurisdictions.
Legislative Hearings
In addition to ten oversight hearings, the Subcommittee on
the Constitution held two legislative hearings on May 4, 2006,
to examine H.R. 9. During these hearings, the Committee
received oral and written testimony from seven additional
witnesses concerning: (1) the impact that H.R. 9 will have on
continuing the progress that minority groups have made in the
last forty years and on protecting racial and language minority
voters over the next 25 years; and (2) the need for H.R. 9 to
update the VRA's temporary provisions, and to restore the VRA
to its original intent so that it can continue to be an
effective remedy in addressing the history and continuing
vestiges of racial discrimination.

COMMITTEE STATEMENT ON THE RIGHT TO VOTE AND
THE VOTING RIGHTS ACT OF 1965

The right to vote is the most fundamental right in our
democratic system of government because its effective exercise
is preservative of all others.\1\ Prior to the enactment of the
VRA, parts of the United States condoned the unequal treatment
of certain citizens, including denying the most fundamental
right of citizenship--the right to vote. The vestiges of such
discrimination continue today. In enacting the VRA in 1965,
Congress sought to protect the Nation's most vulnerable
citizens' right to vote. In renewing and extending the VRA,
Congress sought to ensure that even greater numbers of our
citizens were protected, including citizens whose primary
language is not English,\2\ and to ensure that all aspects of
the right to vote are protected, including the right to cast a
meaningful ballot.\3\
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\1\ Reynolds v. Simms, 377 U.S. 533 (1964).
\2\ See Katzenbach v. Morgan, 384 U.S. 641 (1966) and Gaston County
v. United States, 395 U.S. 285 (1969) (finding that the ability to vote
cannot be denied because of lack of knowledge of the English language).
\3\ Allen v. State Board of Elections, 393 U.S. 544 (1969);
Reynolds, and H.R. Rep. 94-196 (1975), H.R. Rep. 97-227 (1982)to
accompany H.R. 6219 (Pub. L. No. 94-73) and H.R. 3112 (Pub. L. No. 97-
205).
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Substantial progress has been made over the last 40 years.
Racial and language minority citizens register to vote, cast
ballots, and elect candidates of their choice at levels that
well exceed those in 1965 and 1982. The success of the VRA is
also reflected in the diversity of our Nation's local, State,
and Federal Governments. These successes are the direct result
of the extraordinary steps that Congress took in 1965 to enact
the VRA and in reauthorizing the temporary provisions in 1970,
1975, 1982, and 1992.
Despite these successes, the Committee finds that the
temporary provisions of the VRA are still needed.
Discrimination today is more subtle than the visible methods
used in 1965. However, the effect and results are the same,
namely a diminishing of the minority community's ability to
fully participate in the electoral process and to elect their
preferred candidates of choice.
Forty years ago, Congress passed the VRA to help ensure
that the rights of citizenship were extended to all its
citizens.\4\ Despite the substantial progress that has been
made, the evidence before the Committee resembles the evidence
before Congress in 1965 and the evidence that was present again
in 1970, 1975, 1982, and 1992. In 2006, the Committee finds
abundant evidentiary support for reauthorization of VRA's
temporary provisions.
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\4\ See Reynolds (citing racially based gerrymandering); Gomillion
v. Lightfoot, 364 U.S. 339 (1960), (regarding the conduct of white
primaries); and Nixon v. Herndon, 273 U.S. 536 (1927); Nixon v. Condon,
286 U.S. 73 (1932); Smith v. Allwright, 321 U.S. 649 (1944); Terry v.
Adams, 345 U.S. 461 (1953) (as activities that unconstitutionally
result in denying some citizens their ability to vote).
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NEED FOR THE ORIGINAL VRA AND SUBSEQUENT REAUTHORIZATIONS

Initial Need--Voting Rights Act of 1965
In 1965, Congress was presented with a record revealing
more than 95 years of pervasive racial discrimination in
certain areas of the country. The record was replete with
evidence demonstrating that, despite the 13th amendment
signaling the end of the Civil War \5\ and the ratification of
the 14th and 15th amendments recognizing the government's
commitment to equal treatment and protection under the law,\6\
certain State and local government entities continued to defy
mandates under the Constitution and Federal law. Congress was
presented with evidence demonstrating that racial
discrimination was most pronounced in the electoral process
where minorities were openly denied the right to participate in
the political process by State and local officials.
---------------------------------------------------------------------------
\5\ Ratified in 1865.
\6\ Ratified in 1868 and 1870, respectively.
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Testimony presented to Congress revealed that the primary
method of keeping minorities from participating in the election
process was through the administration of State constitutional
amendments and statutorily-authorized tests and devices, such
as literacy tests, moral character requirements, and
interpretation tests, which required African-Americans to
interpret certain passages of various documents during the
voting registration process. In particular, Congress was
presented with evidence, beginning in the 1900's, that showed
States, such as Mississippi, South Carolina, Alabama, Virginia,
Georgia, and Louisiana administered reading or writing
requirements prior to allowing its citizens the right to
register to vote. Mississippi, Virginia, South Carolina, and
Louisiana authorized the administration of tests allegedly
gauging proficiency in the U.S. Constitution. Georgia, Alabama,
Mississippi, and Louisiana authorized and administered tests of
moral character.\7\ These schemes and devices successfully kept
minorities from participating in the most fundamental aspects
of the political process, and ultimately denied them any type
of representation in local, State, and Federal Governmental
affairs.\8\ This lack of representation left African-Americans
without a voice in the decision making process as it related to
education, housing, employment, transportation, and other areas
of important interest to African-American constituents.
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\7\ See H.R. Rep. No. 89-439, at 7 (1965) (``Prevalence of Voting
Discrimination Through the Use of Devices'') and S. Rep. No. 89-162, at
32 (1965) (describing State legislation establishing voting
requirements).
\8\ Prior to the VRA, registration statistics in Alabama, Georgia,
Louisiana, Mississippi, North Carolina, South Carolina, and Virginia
were 19.3, 27.4, 31.6, 6.7, 46.8, 37.3, and 38.3 percent, respectively.
See H.R. Rep 94-196, at 6 (1975)(compiling voting registration
statistics).
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Congress was also presented with the reality that the civil
rights laws enacted in 1957, 1960, and 1964, pursuant to its
authority under the 13th, 14th, and 15th amendments \9\ proved
to be insufficient in addressing and remedying ongoing
discrimination in voting.\10\ The examples of cases that had
been pursued to enforce the prohibitions on voting
discrimination revealed that a ``case by case'' approach was
ineffective in protecting the rights of minority citizens and
had become too time-consuming, costly, and cumbersome, in some
cases taking more than several years to resolve.\11\ More
importantly, Congress was presented with direct evidence that
despite decisions of the Federal courts striking down the use
of certain tests and devices as unconstitutional, and the
efforts of the Federal Government to enforce the civil rights
statutes and governing decisions, State and local officials
defied these Federal efforts by simply administering new and
novel discriminatory schemes and devices.\12\
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\9\ Collectively known as the ``Civil War Amendments.''
\10\ See S. Rep. No. 89-162 (1965) (stating that three times within
the past 8 years Congress has attempted to secure the constitutional
right to vote free from racial discrimination, and that those attempts
have not been fully successful).
\11\ Id. at 35 (describing history of litigation against Dallas
County, Alabama).
\12\ Id. at 33.
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Voting Rights Act
In passing the VRA, including the temporary provisions set
forth in Sections 4, 5, 6, 7, 8, and 9, Congress sought to
provide swift relief to those citizens who had been victims of
discriminatory voting tactics for far too long. The temporary
provisions brought certain jurisdictions under the scrutiny of
Federal law, pursuant to Section 4 (trigger formula), Section 5
(preclearance), and Sections 6 through 8 (Federal examiner and
observer programs) and were recognized as necessary remedies to
address the widespread injury caused by discriminatory
practices that had been employed by certain States and
political subdivisions. Congress, in justifying its oversight
of traditional State functions, observed ``when State power is
abused, it is subject to Federal action by Congress . . . under
the 15th amendment.''\13\ In particular, Congress found ``there
is little basis for supposing that without action, the States
and subdivisions affected will themselves remedy the present
situation in view of the history of the adoption and
administration of the several tests and devices reached by the
bill.'' \14\ Thus, to keep minorities from continuing to be
victimized by States and political subdivisions' actions,
Congress sought, through the temporary provisions, to ``shift
the benefit of time and inertia from the perpetrators of evil
to the victim.'' \15\
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\13\ Id.
\14\ Id.
\15\ See South Carolina v. Katzenbach, 383 U.S. 301 (1966).
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Upholding the constitutionality of the temporary provisions
of the VRA, the Supreme Court, in South Carolina v. Katzenbach,
recognized Congress's broad authority to remedy the history of
discrimination in voting.\16\ Reiterating that States ``have
broad powers to determine the conditions under which the right
of suffrage may be exercised,'' the Court held ``such
insulation is not carried over when State power is used as an
instrument for circumventing a Federally protected right.''
\17\ Citing the enforcement powers granted to Congress under
the 13th, 14th, and 15th amendments, the Court upheld the
temporary provisions as a ``legitimate response to the problem
for which there is ample precedent.'' \18\ The Court further
acknowledged the ``uncommon exercise of congressional power,''
but emphasized that ``exceptional conditions can justify
legislative measures not otherwise appropriate.'' \19\
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\16\ See 383 U.S. 301 (1966).
\17\ Id. at 325 (citing Gomillion v. Lightfoot, 364 U.S. at 347).
\18\ Id. at 328.
\19\ Id. at 334 (emphasis added).
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The Continued Need for the Temporary Provisions Reauthorization of the
Voting Rights Act in 1970, 1975, 1982, 1992, and 2006
In reauthorizing the VRA on four separate occasions,
Congress determined that the ``exceptional conditions'' cited
in Katzenbach continued to exist in 1970, 1975, 1982, and 1992
such that Congress appropriately found that the temporary
provisions were still needed. On each occasion, Congress
examined the extent to which minority citizens were able to
fully participate in the electoral process and weighed the
record against the continued need for the temporary provisions.
On each occasion, Congress found it necessary to continue the
temporary provisions to ensure that minority voters continued
to be protected in exercising their right to electoral
franchise.\20\
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\20\ The VRA withstood two additional constitutional challenges in
1970 and 1980. In 1970, in Oregon v. Mitchell, 400 U.S. 112 (1970), the
Supreme Court upheld the nationwide ban on literacy tests citing ``the
long history of the discriminatory use of literacy tests to
disenfranchise voters on account of race. And, as to the Nation as a
whole, Congress had before it statistics which demonstrate that voter
registration and voter participation are consistently greater in States
without literacy tests.'' In 1980, the VRA withstood a third
constitutional challenge in City of Rome v. United States, 446 U.S.
156,180 (1980). Although recognizing broad improvements in minority
voting registration since the implementation of the VRA in 1965, the
Supreme Court again deferred to Congress's record that ``significant
disparity persisted between percentages of whites and Negroes
registered in at least several of the covered jurisdictions'' in
upholding the constitutionality of the VRA. Citing Congress's
consideration of the relatively ``minor positions'' held by African-
Americans and none having held ``statewide office and their number in
the State legislatures fell far short of being representative of the
number of Negroes residing in the covered jurisdictions,'' as evidence
of the continued need for the VRA, the Court reiterated that ``Congress
gave careful consideration to the propriety of readopting Section 5's
pre-clearance requirement.'' Id. at 181.
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1970 Amendments and Extension
In 1970, Congress reviewed the progress that had been made
by minorities over the preceding 5 years and extended Section
4's covered jurisdiction status and Section 5's pre-clearance
requirement for an additional 5 years. In extending the
temporary provisions, Congress determined that there had been a
lack of enforcement by the Department of Justice. A ``5 year
cooling off period imposed by the bill . . . is both reasonable
and necessary to permit the dissipation of the long established
political atmosphere and tradition of discrimination in voting
because of color in those States and subdivisions in which
literacy tests and low registration have gone hand in hand.''
\21\
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\21\ H.R. Rep. No. 91-397, at 4 (1970).
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1975 Amendments and Extension
In 1975, Congress determined that there was a continued
need for the temporary provisions and extended the protections
for an additional 7 years. In extending Section 4 and Section 5
for another 7 years, Congress found that ``while minority
political progress [that] has been made under the Voting Rights
Act is undeniable . . . the nature of that progress has been
limited. It has been modest and spotty insofar as there are
continuing and significant deficiencies yet existing in
minority registration and political participation.'' \22\
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\22\ H.R. Rep. No. 94-196, at 7 (1975).
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In addition, Congress was presented with substantial
evidence demonstrating the necessity of broadening the
protections afforded by the VRA to include minority citizens
who did not speak English. By expanding the temporary
provisions to include Sections 4(f) and 203 under its 14th
amendment enforcement power, Congress sought to remedy the
voting inequities resulting from the disparate treatment
experienced by language minority citizens in educational
opportunities. In doing so, Congress ``documented a systematic
pattern of voting discrimination and exclusion against minority
group citizens who are from environments in which the dominant
language is other than English,'' \23\ and ``[b]ased on the
extensive evidentiary record demonstrating the prevalence of
voting discrimination and high illiteracy rates among language
minorities, the [relevant] Subcommittee acted to broaden its
special coverage to new geographic areas in order to ensure
protection of the voting rights of language minority
citizens.'' \24\
---------------------------------------------------------------------------
\23\ Id.
\24\ Id. at 16.
---------------------------------------------------------------------------
1982 Amendments
In 1982, Congress extended the temporary provisions of the
VRA for an additional 25 years. Congress found that ``despite
the gains in increased minority registration and voting and in
the number of minority elected officials . . . continued
manipulation of registration procedures and the electoral
process, which effectively exclude minority participation from
all stages of the political process'' continued to occur.\25\
Moreover, in extending the temporary provisions for an
additional 25 years, Congress reiterated its intent ``that
protection of the franchise extend[] beyond mere prohibition of
official actions designed to keep voters away from the polls .
. . [and] include[] prohibition of State actions which so
manipulate the elections process as to render the vote
meaningless,'' \26\ including ``at-large elections, high fees
and bonding requirements, shifts from elective to appointive
offices, majority vote run-off requirements, residency
requirements, annexations, incorporations, malapportionment,
and racial gerrymandering.'' \27\ Congress acknowledged that
the length of time under which certain States and political
subdivisions would continue to remain covered was a source of
concern. To address these concerns, Congress liberalized the
bailout process, enabling qualified jurisdictions to terminate
coverage beginning in 1984. In addition, the bailout process
was amended to allow a political subdivision to terminate
coverage independent of a covered State.\28\ The Committee
notes that in amending the bailout process in 1982, it was the
expectation of Congress that a majority of covered
jurisdictions would utilize the liberalized bailout procedures
set forth in Section 4(a), such that few jurisdictions would
remain covered 25 years later.\29\ For reasons that will be
more fully discussed, the Committee finds that covered
jurisdictions have not utilized the bailout process, with all
but 11 counties from the State of Virginia remaining covered.
---------------------------------------------------------------------------
\25\ H.R. Rep. No. 97-227, at 14 (1982).
\26\ Id.
\27\ Id. at 18.
\28\ Eleven political subdivisions (counties in these cases) in
Virginia have successfully terminated ``covered'' status. Virginia
remains a covered State.
\29\ See S. Rep. No. 97-417, at 60 (1982).
---------------------------------------------------------------------------
The 1982 amendments to the VRA also clarified Congress's
intent with respect to Section 2. Addressing the recent Supreme
Court decision City of Mobile v. Bolden, Congress amended
Section 2 to require that plaintiffs bringing lawsuits under
the section show only that an act resulted in a denial or
abridgment in the right to vote, rather than require a
plaintiff prove both purpose and effect.\30\ During the
Committee's review, it received testimony revealing the impact
that Section 2 has had over the last 25 years in eliminating
many of the barriers that continued to exist despite the
passage of the VRA. Section 2 has been instrumental in paving
the way for minority voters to more fully participate in the
political process across the country. Together with Section 5,
Section 2 has been a driving force in achieving the gains made
by minorities over the last several decades in the covered
jurisdictions.
---------------------------------------------------------------------------
\30\ Section 2 was amended in response to the Supreme Court
decision in City of Mobile v. Bolden, 446 U.S. 55 (1980). Prior to the
1982 amendments, the Supreme Court interpreted Section 2 to require
that a plaintiff prove both a discriminatory purpose and a
discriminatory result to prevail on a vote dilution claim.
---------------------------------------------------------------------------
1992 Amendments
In 1992, Congress extended Section 203 for an additional 15
years through 2007, at which time, if not renewed, would expire
along with the remaining temporary provisions. In extending and
amending Section 203, Congress found that ``the four language
minority groups covered by Section 203--Hispanics, Asian-
Americans, American Indians, and Alaskan Natives--continue to
experience educational inequities, high illiteracy rates, and
as a result low voting participation.'' \31\ In reauthorizing
Section 203, Congress sought to expand coverage in order to
reach segments of the language minority populations that
remained unaided by the VRA. First, finding that a significant
number of language minority citizens located in large cities
were not covered under the original formula, Congress
established a numerical coverage threshold of 10,000 to ensure
that language minority citizens in large cities would be
protected even if they did not meet the 5 percent threshold. In
addition, Congress expressly reaffirmed its commitment to
assist Native Americans, particularly those who live on
reservations, as intended beneficiaries of the language
assistance provisions.\32\ Furthermore, Congress clarified that
jurisdictions covered under Section 203 were required to
provide language minorities with not only bilingual election
materials but also bilingual election assistance, including
oral assistance and other written election and voting
assistance, such as instructions, guides, forms, notices, and
ballots, in response to the needs demonstrated by limited
English speaking citizens.\33\
---------------------------------------------------------------------------
\31\ S. Rep. No. 102-315, at 4 (1992).
\32\ H.R. Rep. No. 102-655, at 4 (1992)(citing ``because many
Native American communities are divided into two or more counties or
States, the concentration of Native American populations is frequently
diluted by the balance of the county population.''). To account for the
``unique history and demography of Native Americans,'' Congress made
the 5 percent trigger applicable to entire reservations without regard
to whether they crossed current jurisdictional boundaries. Id.
\33\ See Pub. L. No. 102-344.
---------------------------------------------------------------------------

COMMITTEE FINDINGS--PROGRESS

2006
The Committee's review of the temporary provisions was no
less extensive in 2006 than in prior years. Forty-six total
witnesses representing a spectrum of interests appeared before
the House Judiciary's Subcommittee on the Constitution during
the Committee's review of the temporary provisions. In
addition, the Committee received numerous reports and written
documentation describing personal experiences with regard to
voting discrimination and the effectiveness of the temporary
provisions in protecting voters from such conduct over the last
25 years. The number of witnesses appearing before the
Committee is consistent with the number of witnesses who
appeared before Congress during previous reauthorizations of
the VRA.\34\ The Committee hearing record reflects the breadth
of interests represented during the hearings and provides the
Committee with insight into the voting experiences of minority
citizens over the last 25 years. The direct testimony provided
by the witnesses, together with the investigative reports
submitted, support the Committee's conclusion that the gains
made under the VRA are the direct result of the VRA's temporary
provisions, and that reauthorization of these provisions is
both justified and necessary.
---------------------------------------------------------------------------
\34\ See South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)
(``Before enacting the measure, Congress explored with great care the
problem of racial discrimination in voting. The House and Senate
Committees on the Judiciary each held hearings for 9 days and received
testimony from a total of 67 witnesses.'')
---------------------------------------------------------------------------
Increased Numbers of Citizens Who Are Registered and Turn Out to Vote
The record reveals that many of the first generation
barriers to minority voter registration and voter turnout that
were in place prior to the VRA have been eliminated. The
Committee finds that the number of African-Americans who are
registered and who turn out to cast ballots has increased
significantly over the last 40 years, particularly since 1982.
In some circumstances, minorities register to vote and cast
ballots at levels that surpass those of white voters.
A chart compiled by the Department of Justice reveals that
the disparities between African-American and white citizens who
are registered to vote have narrowed considerably in six
southern States covered by the temporary provisions (Alabama,
Georgia, Louisiana, Mississippi, South Carolina, and Virginia)
and in the 40 counties covered in the State of North Carolina.
For example, the disparity between the percentage of African-
American citizens and the percentage of white citizens who were
registered to vote in Mississippi narrowed significantly to 6.3
percent in November 1988, from the 63.2 percent gap experienced
by African-Americans in March 1965.

Chart A: Voter Registration Rates (1965 v. 1988)
----------------------------------------------------------------------------------------------------------------
March 1965 November 1988
-----------------------------------------------
Black White Gap Black White Gap
----------------------------------------------------------------------------------------------------------------
Alabama 19.3 69.2 49.9 68.4 75.0 6.6
Georgia 27.4 62.2 35.2 56.8 63.9 7.1
Louisiana 31.6 80.5 48.9 77.1 75.1 -2.0
Mississippi 6.7 69.9 63.2 74.2 80.5 6.3
North Carolina 46.8 96.8 50.0 58.2 65.6 7.4
South Carolina 37.3 75.7 38.4 56.7 61.8 5.1
Virginia 38.3 61.1 22.8 63.8 68.5 4.7
----------------------------------------------------------------------------------------------------------------

The number of African-Americans who registered to vote and
who turned out to cast ballots has continued to increase since
1982. For example, in Texas, 68.4 percent of African-Americans
were registered to vote in 2004 compared to 61.5 percent of
white citizens. Moreover, 55.8 percent of African-Americans
turned out to vote in 2004 compared to 50.6 percent of white
voters. In Georgia, 64.2 percent of African-Americans were
registered to vote in 2004 compared to 63.5 percent of white
citizens, with 54.4 percent of African-Americans turning out to
vote compared to 53.6 percent of white voters.

Chart B1: Reported Registration by Race in Texas and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
TEXAS 56.4 56.6 65.3 66.6 64.2 60.0 63.5 58.5 63.2 62.1 69.5 65.1 68.4
Black
White 61.4 59.4 66.0 58.2 66.5 61.1 66.1 59.7 62.7 59.7 61.8 57.7 61.5
Latino 39.3 43.2 45.2 43.1 45.5 40.0 42.9 39.2 42.7 39.7 43.2 39.1 41.5

NON-SOUTH 60.6 61.7 67.2 63.1 65.9 58.4 63.0 58.3 62.0 58.5 61.7 57.0 NA
Black
White 69.3 66.7 70.5 66.2 68.5 64.4 70.9 65.6 68.1 63.9 65.9 63.0 NA
Latino 35.5 33.9 39.0 33.2 32.4 30.4 32.9 29.1 33.8 31.9 32.7 30.6 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

Chart B2: Reported Turnout by Race in Texas and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
TEXAS 40.7 37.8 51.2 39.8 47.0 38.7 50.1 33.1 47.1 35.5 57.5 44.3 55.8
Black
White 52.7 40.6 55.5 37.5 55.2 42.5 57.2 39.4 46.7 33.5 48.1 35.0 50.6
Latino 29.7 26.8 32.7 23.6 33.2 22.5 33.1 18.9 27.9 15.3 29.5 19.1 29.3

NON-SOUTH 52.8 48.5 58.9 44.2 55.6 38.4 53.8 40.2 51.4 40.4 53.1 39.3 NA
Black
White 62.4 53.1 63.0 48.7 60.4 48.2 64.9 49.3 57.4 44.7 57.5 44.7 NA
Latino 29.8 25.8 32.8 23.8 26.8 20.5 27.4 20.8 26.3 21.4 26.8 18.2 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

Chart C1: Reported Registration by Race in Georgia and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
GEORGIA
Black 59.8 51.9 58.0 55.3 56.8 57.0 53.9 57.6 64.6 64.1 66.3 61.6 64.2
White 67.0 59.7 65.7 60.4 63.9 58.1 67.3 55.0 67.8 62.0 59.3 62.7 63.5

NON-SOUTH
Black 60.6 61.7 67.2 63.1 65.9 58.4 63.0 58.3 62.0 58.5 61.7 57.0 NA
White 69.3 66.7 70.5 66.2 68.5 64.4 70.9 65.6 68.1 63.9 65.9 63.0 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------

Chart C2: Reported Turnout by Race in Georgia and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
GEORGIA
Black 43.7 32.5 45.9 37.3 42.4 42.3 47.1 30.9 45.6 40.2 51.6 38.5 54.4
White 56.0 40.7 55.3 40.5 53.2 42.6 58.7 38.3 52.3 36.8 48.3 44.8 53.6

NON-SOUTH
Black 52.8 48.5 58.9 44.2 55.6 38.4 53.8 40.2 51.4 40.4 53.1 39.3 NA
White 62.4 53.1 63.0 48.7 60.4 48.2 64.9 49.3 57.4 45.4 57.5 44.7 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

In other covered States, such as Louisiana, the gap between
the number of African-American and white citizens who
registered to vote and turned out to cast ballots has narrowed,
with 71.1 percent of African-Americans registering to vote in
2004 compared to 75.1 percent of whites. Voter turnout among
African-Americans also increased between 1980 and 2004, with
62.1 percent of African-Americans turning out to cast ballots
in 2004, compared to the 60.1 percent of African-Americans who
turned out in 1980. In addition, the disparity between the
number of African-Americans and whites who turned out to vote
in Louisiana in 2004 narrowed to less than 2 percent. (64
percent of whites compared to 62.1 percent of African-
Americans).

Chart D1: Reported Registration by Race in Louisiana and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
LOUISIANA
Black 69.0 68.5 74.8 71.9 77.1 72.0 82.3 65.7 71.9 69.5 73.5 73.5 71.1
White 74.5 67.5 73.2 71.4 75.1 74.1 76.2 72.7 74.5 75.2 77.5 74.2 75.1

Chart D2: Reported Turnout by Race in Louisiana and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
LOUISIANA
Black 60.1 32.0 66.4 55.8 61.5 55.9 71.5 30.9 60.9 46.0 63.2 46.9 62.1
White 65.6 23.6 64.7 57.5 67.5 50.2 68.3 35.6 62.6 35.7 66.4 51.0 64.0

Increased Number of African-American Elected Officials
The Committee finds that the increased number of African-
American citizens who are registered to vote and who have cast
ballots, together with the protections afforded by the
temporary provisions against dilutive techniques (discussed
infra), have resulted in significant increases in the number of
African-Americans serving in elected offices. As of 2000, more
than 9,000 African-Americans have been elected to office, an
increase from the 1,469 officials who held office in 1970. As
of 2004, 43 African-Americans currently serve in the United
States Congress, with 42 individuals serving in the United
States House of Representatives, and one serving in the United
States Senate. At the State level, more than 482 African-
Americans serve in State legislatures, with thousands more
African-Americans serving in county, township, and other
locally elected positions.
In testimony presented to the Committee, the National
Commission on the Voting Rights Act reported that the number of
African-American elected officials serving in the original six
States covered by the temporary provisions of the Voting Rights
Act (Louisiana, Mississippi, South Carolina, Virginia, Georgia,
and Alabama) increased by approximately 1000 percent since
1965, increasing from 345 to 3700. For example, the Committee
received testimony revealing that citizens in the State of
Louisiana, which as late as the 1960's maintained all-white
assemblies, had elected 705 African-Americans to office as of
2001. Such elected officials include: one Member of the United
States House of Representatives; nine State Senators; and 22
State Representatives. In addition, 131 African-Americans had
been elected to positions on county bodies; 33 African-
Americans had been elected mayor; 219 African-Americans had
been elected to municipal governing bodies; and one African-
American had been elected to Justice of the State Supreme
Court. Statistics from South Carolina reveal similar results:
one Member of the United States House of Representatives has
been elected, eight African-Americans have been elected to the
State Senate; 23 African-Americans have been elected to the
State Legislature; 99 African-Americans have been elected to
county councils; and 164 have been elected to positions on
local school boards.
The progress made by African-Americans in States, such as
Louisiana and South Carolina, is representative of the progress
made in other covered States and jurisdictions and demonstrates
the effectiveness of the temporary provisions in fostering and
protecting minority participation in the electoral process,
with the most visible progress occurring at the county and
local level.

Progress Made by Language Minority Citizens Under Sections 4(f) and 203
The Committee also finds that Sections 4(f) and 203 have
been instrumental in fostering progress among language minority
citizens. Included in the VRA beginning in 1975, Sections 4(f)
and 203 were enacted in response to substantial evidence
received by Congress documenting the discrimination and unequal
educational opportunities experienced by Asian American, Native
American, Hispanic, and Native Alaskans compared to white
citizens. Since 1975 and 1992 (when Section 203 was last
reauthorized), the number of language minority citizens who
have registered to vote, turned out to vote, and who are
casting ballots for preferred candidates of their choice has
increased.

Asian American Citizens
The Committee received testimony from representatives from
the Asian American community describing the impact that Section
203 has had on Asian American citizens. Evidence presented
shows that ``Section 203 has removed barriers to voting and
opened up the political process to thousands of Asian
Americans, many of them first time voters and new citizens.''
\35\ Since 1992, ``there have been important gains in Asian
American electoral representation.'' \36\ The Asian American
Justice Center (AAJC) reported that as of 2004, 346 Asian
Americans have been elected to office, including six to Federal
offices. This is an increase from the 120 such elected
officials that served in 1978. The AAJC further reported that,
as of 2004, 260 Asian Americans serve at the local level, up
from 52 in 1978, with 75 percent of those elected Asian
Americans representing jurisdictions covered by Section 203.
Despite these gains, there continues to be widespread non-
compliance with Section 203 in jurisdictions with substantial
Asian populations. In jurisdictions that are brought into
compliance with Section 203, there can be an immediate impact.
A recent Memorandum of Agreement between the Department of
Justice and Harris County, Texas helped double Vietnamese voter
turnout, allowing the first Vietnamese candidate in history to
be elected to the Texas legislature--defeating the incumbent
chair of the Appropriations Committee by 16 votes out of 40,000
cast.\37\
---------------------------------------------------------------------------
\35\ See Letter from Karen K. Narasaki, President and Executive
Director, Asian American Justice Center to the Honorable Steve Chabot,
Chairman, Subcommittee on the Constitution (November 22, 2005)
(describing the impact of Section 203 on Asian-American citizens.).
\36\ Id.
\37\ Id.
---------------------------------------------------------------------------
Citizens of Hispanic Origin
The Committee received similar testimony from the Latino
and Hispanic community indicating ``the number of registered
Latino voters grew from 7.6 million in 2000 to 9 million in
2004.'' \38\ As of 2000, more than 5,200 Latinos had been
elected to office, including 25 to the United States House of
Representatives and two to the United States Senate. Consistent
with the findings reported by the Asian American community, a
link was also established between the assistance provided to
citizens under Section 203 and the increased participation of
Hispanic citizens. For example, the National Commission on the
Voting Rights Act directed the Committee to ``a causal link
between effective language assistance and voter turnout. In
particular . . . the importance Latino citizens attach to
having election materials, especially registration cards in
Spanish.'' \39\ This causal link was also confirmed in reports
presented to the Committee by voting experts residing in
jurisdictions covered by Sections 4(f) and 203, such as in New
York City.\40\ It is likewise consistent with the impact of
enforcement actions brought by the Department of Justice, such
as in Yakima County, Washington, where Hispanic voter
registration was up over 24 percent 1 year after the Department
sued the County.\41\
---------------------------------------------------------------------------
\38\ See Oversight Hearing, the Voting Rights Act: Section 203--
Bilingual Assistance (Part II), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1 (November 9, 2005) (statement
of Juan Cartagena, General Counsel, Community Service Society).
\39\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 74.
\40\ See Juan Cartagena, Final Report on the State of Voting Rights
in New York City, Including the Impact of Section 5 and Section 203 of
the Voting Rights Act on Minority Empowerment, February 27, 2006.
\41\ See Oversight Hearing, the Voting Rights Act: Section 203--
Bilingual Assistance (Part I), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1 (November 8, 2005) (statement
of the Honorable Bradley J.Schlozman, Acting Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice).
---------------------------------------------------------------------------
Native Americans and Native Alaskans
Positive results were also reported by witnesses for the
Native American and Native Alaskan communities who confirmed
that ``while turnout by Native Americans has traditionally been
among the lowest of all communities in the U.S., dramatic
changes have occurred recently such that, in some places,
Native and non-Native participation rates are closer than
ever.'' \42\ In certain cases, the increase in Native American
voter turnout has increased by more than ``50 to 150 percent.''
\43\ Representatives from the Native community also described
to the Committee the impact that Section 203 has had on grass
roots participation. The Committee received evidence that the
number of Native American voter registration drives has
increased substantially such that a ``direct correlation
between focused localized commitments to increasing
participation rates in Native communities and the actual
increases that result . . . [M]any Native communities have seen
steady, even significant, increases in registration. . . . In
recent years, there has been a steady increase in the number of
Native American candidates who are being elected to local
school boards, county commissions and State legislatures,''
including the election of seven new Alaskan Natives to the
Alaska State legislature.\44\
---------------------------------------------------------------------------
\42\ See Oversight Hearing, the Voting Rights Act: Section 203--
Bilingual Assistance (Part II), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1 (November 9, 2005) (joint
statement of the National Congress of American Indians and the Native
American Rights Fund).
\43\ Id.
\44\ Id.
---------------------------------------------------------------------------
This evidence demonstrates that the increases in language
minority citizen registration and turnout rates are most
significant in jurisdictions that are in compliance with
Section 203's election assistance requirements. Indeed, the
Department of Justice reported to the Committee that
enforcement of Section 203 has resulted in ``significantly
narrowed gaps in electoral participation. In San Diego County,
California, Spanish and Filipino registration are up over 21
percent and Vietnamese registration is up 37 percent.'' \45\
The Committee believes that these examples reflect the gains
that Congress intended language minority citizens to make under
Sections 4(f) and 203, and concludes that all American citizens
should have the opportunity to participate in the political
process.
---------------------------------------------------------------------------
\45\ See Oversight Hearing, the Voting Rights Act: Section 203--
Bilingual Assistance (Part I), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1 (November 8, 2005) (statement
of the Honorable Bradley J. Schlozman, Acting Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice).
---------------------------------------------------------------------------

EFFECTIVENESS OF PROVISIONS

Section 5
The Committee finds that increased participation levels are
directly attributable to the effectiveness of the VRA's
temporary provisions. These provisions have protected minority
voters, especially over the last 25 years and have helped
minority citizens to: (1) register to vote unchallenged; (2)
cast ballots unhindered; and (3) cast meaningful votes. The
Committee finds this to be a significant achievement for
citizens who historically have been prevented from effectively
exercising the right to vote.
In particular, the Committee finds that Sections 5 and 8
have been vital prophylactic tools, protecting minority voters
from devices and schemes that continue to be employed by
covered States and jurisdictions. Section 5, which requires
jurisdictions covered by the temporary provisions to preclear
all voting changes before they may be enforced, ensures that
such voting changes do not discriminate against minority
voters,\46\ and has been an effective shield against new
efforts employed by covered jurisdictions. The Department of
Justice reported that roughly between 4,000 and 6,000
submissions have been received annually from jurisdictions
covered by the VRA.\47\ Since 1982, the Department objected to
more than 700 voting changes that have been determined to be
discriminatory, preventing such changes from being enforced by
covered jurisdictions. The Committee received testimony
revealing that more Section 5 objections were lodged between
1982 and 2004 than were interposed between 1965 and 1982 and
that such objections did not encompass minor inadvertent
changes.\48\ The changes sought by covered jurisdictions were
calculated decisions to keep minority voters from fully
participating in the political process. This increased activity
shows that attempts to discriminate persist and evolve, such
that Section 5 is still needed to protect minority voters in
the future.
---------------------------------------------------------------------------
\46\ See United States v. Beer, 425 U.S.130 (1976).
\47\ See Oversight Hearing, the Voting Rights Act: Section 5--
History, Scope, and Purpose, Subcommittee on the Constitution,
Committee on the Judiciary, 109th Cong. 1 (October 25, 2005) (statement
of the Honorable Bradley J.Schlozman, Acting Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice).
\48\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 54.

Chart E: Administrative Review of Voting Changes
ADMINISTRATIVE REVIEW OF VOTING CHANGES
------------------------------------------------------------------------
1965-2005 (By Calendar Year)
-------------------------------------------------------------------------
ALL SUBMISSIONS REDISTRICTING PLANS
Year -----------------------------------------
Number Objections Number Objections
------------------------------------------------------------------------
1965 1 0 0 0
1966 2 0 2 0
1967 6 0 4 0
1968 6 6 0 0
1969 15 5 12 0
1970 60* 4 25 1
1971 331* 66 201 32
1972 362 30 97 11
1973 345 32 47 6
1974 414* 76 55 5
1975 1046* 79 53 11
1976 2685* 124 335 11
1977 1817* 42 79 3
1978 1946* 74 48 12
1979 1914* 54 53 2
1980 2226 32 85 9
1981 2240 24 387 8
1982 2848 66 452 47
1983 3203 52 386 40
1984 3975 49 274 16
1985 3847 37 235 10
1986 4807 41 256 14
1987 4478 29 258 8
1988 5155 39 322 9
1989 3920 30 180 8
1990 4809 37 164 6
1991 4592 75 916 66
1992 5307 77 974 67
1993 4421 69 512 40
1994 4661 61 325 10
1995 3999 19 213 7
1996 4729 7 116 3
1997 4047 8 105 2
1998 4021 8 65 3
1999 4012 5 67 1
2000 4638 4 49 1
2001 4222 7 985 4
2002 5910 21 1138 19
2003 4628 8 400 5
2004 5211 3 241 1
2005 3703 1 88 1
------------------------------------------------------------------------
Notes:
*Indicates fiscal year totals
One submission may contain more than one change.
This list does not reflect withdrawals of objections
See Complete Listing of Objections as of July 11, 2005

Section 5's effectiveness in addressing efforts to
discriminate was reflected in the various experiences that were
reported to the Committee. For example, in the case of Dillard
v. City of Foley, Alabama, Section 5 was instrumental on two
separate occasions (in 1989 and 1993) in preventing the City of
Foley from annexing white areas around the City to the
detriment of primarily African-American areas, such as Mills
Quarter and Beulah Heights, which were also seeking annexation
by the City. As part of its effort to enforce Section 5's
requirements, the ACLU compelled the City to adopt a non-
discriminatory annexation policy, which resulted in annexation
of Mills Quarter and Beulah Heights, in compliance with Section
5.\49\
---------------------------------------------------------------------------
\49\ See Laughlin McDonald, The Case For Extending and Amending the
Voting Rights Act: Voting Rights Litigation, 1982-2006: A Report of the
Voting Rights Project of the American Civil Liberties Union (March
2006) at 51-53 (citing Dillard v. City of Foley, AL, Civ. No. 87-T-1213
N (M.D. Ala); 926 F.Supp. 1053 (M.D. Ala.); letter from James P.
Turner, Acting Assistant Attorney General, Civil Rights Division, U.S.
DoJ, to Fred Mott, November 6, 1989; letter from James P. Turner, to A.
Perry Willbourne, August 30, 1993; and letter from Deval L. Patrick,
Assistant Attorney General, Civil Rights Division, U.S. DoJ, to A.
Perry Willbourne, July 1, 1996.).
---------------------------------------------------------------------------
Other examples were reported to the Committee. In 1990, the
City of Monroe, Louisiana attempted to annex white suburban
wards to its city court jurisdiction. The Department of Justice
noted in its objection to the City's changes that the wards in
question had been eligible for annexation since 1970, but there
had been no interest in annexing them until just after the
first-ever African-American candidate ran for a seat on the
Monroe city court.\50\ In 1991, the Concordia Parish Police
Jury announced that it would reduce its size from nine seats to
seven, with the intended consequence of eliminating one
African-American district. The parish made the pretextual claim
that the reduction was a cost-saving measure, but the
Department of Justice noted in its objection that the parish
had seen no need to save money until an influx of African-
American residents transformed the district in question--
originally drawn as a majority-white district--into a majority-
African-American district.\51\
---------------------------------------------------------------------------
\50\ See Debo Adegbile, Voting Rights in Louisiana: 1982-2006,
February 2006, at 20 (citing letter from John R. Dunne, Assistant
Attorney General, Civil Rights Division, U.S. DOJ to Cynthia Young
Rougeou, Assistant Attorney General, State of Louisiana (Oct. 23,
1990)).
\51\ Id. at 21 (citing letter from John R. Dunne, Assistant
Attorney General, Civil Rights Division, U.S. DOJ, to Robbie Shirley,
Secretary-Treasurer, Concordia Parish Police Jury (Dec. 23, 1991)).
---------------------------------------------------------------------------
Additional examples were reported showing how Section 5 has
been instrumental in preventing covered jurisdictions from
intentionally reenacting and enforcing changes to which the
Department of Justice had previously objected. In South
Carolina, Section 5 was instrumental in preventing the
Lancaster County School District from attempting to enforce at-
large voting systems, to which objections had already been
interposed. The General Assembly three times (through Act 1622
of 1972, Act R 700 of 1976, and Act 601 of 1984) adopted
staggered terms for the at-large county board of education and
area school boards. In 1974, 1983, and 1984, the Department
objected to the same device, explaining that ``[a]s we
indicated in our previous objections, the use of staggered
terms in Lancaster County school board elections, where the at-
large system is used and racial bloc voting seems to exist,
limits the potential for black voters to participate
effectively in the electoral process by reducing the ability of
those voters to use single shot voting. . . . Finally, with Act
602 of 1984, staggered terms were taken off the books for
Lancaster County school elections.'' \52\
---------------------------------------------------------------------------
\52\ See John C. Ruoff and Herbert E. Buhl III, Section 5 and the
Voting Rights Act in South Carolina Since 1982, February 2006, at 20
(citing letter Wm. Bradford Reynolds to C. Havird Jones, Jr., Esq.,
April 27, 1984 (84-3398)).
---------------------------------------------------------------------------
As important as the number of objections that have been
interposed to protect minority voters against discriminatory
changes, is the number of voting changes that have never gone
forward as a result of Section 5. The Committee finds that the
existence of Section 5 deterred covered jurisdictions from even
attempting to enact discriminatory voting changes. The National
Commission on the Voting Rights Act reported that ``the
deterrent effect of Section 5 is substantial. Once officials in
covered jurisdictions become aware of the logic of
preclearance, they tend to understand that submitting
discriminatory changes is a waste of taxpayer time and money
and interferes with their own timetables, because the chances
are good that an objection will result.'' \53\ Additional
testimony confirms Section 5's strong deterrent effect:
---------------------------------------------------------------------------
\53\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 57.

[a]side from blocking the implementation of
discriminatory voting changes, Section 5 has a strong
deterrent effect. In 2005, the Georgia state
legislature redrew its congressional districts, but
before doing so it adopted resolutions providing that
it must comply with the non-retrogression standard of
Section 5. The plan it drew maintained the black voting
age population in the two majority black districts
(represented by John Lewis and Cynthia McKinney) at
almost exactly their pre-existing levels, and it did
the same for the other two districts (represented by
Sanford Bishop and David Scott) that had elected black
Members of Congress. There was no objection by the
Department of Justice when the plan was submitted for
preclearence. This does not mean, however, that Section
5 did play a critical role in the redistricting
process. Rather, it means Section 5 encouraged the
legislature to ensure that any voting changes would not
have a discriminatory effect on minority voters, and
that it would not become embroiled in the preclearance
process.\54\
---------------------------------------------------------------------------
\54\ See Laughlin McDonald, The Case For Extending and Amending the
Voting Rights Act: Voting Rights Litigation, 1982-2006: A Report of the
Voting Rights Project of the American Civil Liberties Union, March
2006, at 15.
---------------------------------------------------------------------------
Section 8
In addition to Section 5, the Committee finds that Section
8, the Federal observer provision, has played a critical role
preventing and deterring discrimination inside polling
locations over the last 25 years. Section 8, together with
Section 6, were designed to ensure that those who are eligible
to register to vote and who want to cast ballots are able to do
so. Section 8, in particular, was intended to allow the Federal
Government access inside polling locations where minority
voters were most vulnerable. The Office of Personnel Management
reported to the Committee that it has worked with the
Department of Justice to assign more than 26,000 observers to
22 States, over the last 40 years, with the greatest number of
Federal observers having been assigned to Mississippi.\55\ The
National Commission on the Voting Rights Act further reported
to the Committee that five of the six States originally covered
by the VRA (Louisiana, Georgia, Alabama, South Carolina, and
Mississippi) accounted for approximately 66 percent of all the
observer coverages since 1982.\56\ Observers have played a
critical role preventing and deterring 14th and 15th amendment
violations by communicating to the Department of Justice any
allegedly discriminatory conduct for further investigation.\57\
---------------------------------------------------------------------------
\55\ See Oversight Hearing, The Voting Rights Act: Sections 6 and
8--The Federal Examiner and Observer Program, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 15,
2005) (statement of Nancy Randa, Deputy Associate Director for Talent
Services, Human Resources, Products, and Services Division, Office of
Personnel Management).
\56\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 61.
\57\ See Oversight Hearing, The Voting Rights Act: Sections 6 and
8--The Federal Examiner and Observer Program, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 15,
2005).
---------------------------------------------------------------------------
Bailout
The Committee also finds that the success and effectiveness
of the VRA's temporary provisions were also reflected by those
jurisdictions that successfully terminated their covered
status. Since 1982, 11 counties from the covered State of
Virginia have successfully bailed out from coverage under
Section 4. In 1982, Congress amended the bailout provision to
encourage jurisdictions to end their discriminatory practices
and to integrate minority voters into the electoral process.
The Committee was encouraged that the bailout requirements have
been utilized by some jurisdictions, and believes that the
success of those jurisdictions illustrates that: (1) covered
status is neither permanent nor over-broad; and (2) covered
status has been and continues to be within the control of the
jurisdiction such that those jurisdictions that have a
genuinely clean record and want to terminate coverage have the
ability to do so.

COMMITTEE FINDINGS--SUBSTANTIAL DISCRIMINATION CONTINUES
TO EXIST IN 2006

The progress made by minority voters and the covered
jurisdictions that have terminated their coverage over the last
25 years reflects the effectiveness of the VRA's temporary
provisions. The Committee finds, however, that instances of
discrimination and efforts to discriminate against minority
voters continue, thus justifying reauthorization of the VRA's
temporary provisions. These efforts directly affect the ability
of minority citizens to register to vote and cast meaningful
ballots.
Disparities in Minority Voter Registration and Voter Turnout
The Committee received testimony demonstrating continued
registration and turnout disparities between African-American
and white citizens in Virginia and South Carolina. In Virginia,
the percentage of African-Americans who were registered to vote
in 2004 was 57.4 percent compared to the 68.2 percent for
whites. The disparity in voter turnout was even greater. Forty-
nine percent of African-Americans turned out to vote in 2004
compared to 63 percent of whites. In South Carolina, the
disparity between the percentage of African-Americans and
whites was narrower than in Virginia, with 64.3 percent of
African-Americans registered to vote in 1996 compared to 69.7
percent of white citizens. However, white citizens in South
Carolina had made substantially more progress in increasing the
percentage of white citizens who were registered to vote (from
57.2 percent in 1980 to 69.7 percent in 1996) compared to the
progress made by African-Americans whose registration rates
increased by less than 3 percent (from 61.4 percent in 1980 to
64.3 percent in 1996).

Chart F1: Reported Registration by Race in Virginia and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
VIRGINIA
Black 49.7 53.6 62.1 66.5 63.8 58.1 64.5 51.1 64.0 53.6 58.0 47.5 57.4
White 65.4 60.8 63.7 63.3 68.5 61.9 67.2 63.6 68.4 63.5 67.6 64.1 68.2

Chart F2: Reported Turnout by Race in Virginia and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
VIRGINIA
Black 42.9 44.3 55.0 42.5 47.7 32.0 59.0 33.8 53.3 23.8 52.7 27.2 49.6
White 58.3 46.2 57.8 36.8 61.1 39.6 63.4 50.4 58.5 32.4 60.4 37.8 63.0

NON-SOUTH
Black 52.8 48.5 58.9 44.2 55.6 38.4 53.8 40.2 51.4 40.4 53.1 39.3 NA
White 62.4 53.1 63.0 48.7 60.4 48.2 64.9 49.3 57.4 44.7 57.5 44.7 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

Chart G: Reported Registration by Race in South Carolina and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
SOUTH CAROLINA
Black 61.4 53.3 62.2 58.8 56.7 61.9 62.0 59.0 64.3 68.0 68.6 68.3 71.1
White 57.2 54.5 57.3 56.4 61.8 56.2 69.2 62.6 69.7 67.9 68.2 66.2 74.4

With respect to language minority citizens, the disparities
in registration and turnout rates compared to white citizens
and voting were much greater. In Florida, 36.7 percent of
Hispanic citizens were registered to vote in 1996 compared to
67.8 percent of white citizens. Turnout among Hispanics was
also substantially lower in 1996 with 29 percent of Hispanic
voters turning out to cast ballots compared to 52.7 percent of
white voters. In fact, statistics revealed that turnout among
Hispanics decreased between the years 1980 and 1996, with 29.3
percent of Hispanics turning out to vote in 1980 compared to
the 29 percent of Hispanics who turned out to vote in 1996. In
the State of Texas, 41.5 percent of Hispanic citizens were
registered to vote in 2004 compared to 61.5 percent of white
citizens.

Chart H1: Reported Registration by Race in Florida and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLORIDA
Black 58.2 50.3 57.3 61.3 57.7 53.3 54.7 47.2 64.4 50.4 52.7 47.9 53.1
White 64.1 60.8 64.1 59.9 64.3 59.5 64.5 5.6 67.8 61.1 62.5 60.7 64.8
Latino 33.7 25.3 33.2 35.5 37.7 32.3 35.0 22.7 36.7 35.8 37.1 39.1 38.2

NON-SOUTH
Black 60.6 61.7 67.2 63.1 65.9 58.4 63.0 58.3 62.0 58.5 61.7 57.0 NA
White 69.3 66.7 70.5 66.2 68.5 64.4 70.9 65.6 68.1 63.9 65.9 63.0 NA
Latino 35.5 33.9 39.0 33.2 32.4 30.4 32.9 29.1 33.8 31.9 32.7 30.6 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

Chart H2: Reported Turnout by Race in Florida and Outside the South
1980-2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLORIDA
Black 50.3 30.4 43.2 42.4 40.8 37.4 46.3 30.0 40.5 33.4 42.3 33.0 44.9
White 56.5 43.1 55.5 47.5 57.1 44.9 57.9 46.2 52.7 40.6 53.8 44.8 58.6
Latino 29.3 18.6 29.1 28.0 34.1 22.8 30.5 20.1 29.0 22.9 31.4 27.4 34.0

NON-SOUTH
Black 52.8 48.5 58.9 44.2 55.6 38.4 53.8 40.2 51.4 40.4 53.1 39.3 NA
White 62.4 53.1 63.0 48.7 60.4 48.2 64.9 49.3 57.4 44.7 57.5 44.7 NA
Latino 29.8 25.8 32.8 23.8 26.8 20.5 27.4 20.8 26.3 21.4 26.8 18.2 NA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: Various post-election reports by the U.S. Bureau of the Census

Continued Disparity Between the Number of White and African-American
Elected Officials in Covered Jurisdictions
In addition to the continued disparities between the
percentages of whites and African Americans registered to vote
and casting ballots, the Committee finds that few African
Americans have been elected to positions in State legislatures
relative to the total African American population in certain
areas.
The Supreme Court has found the extension of the VRA
warranted when there were disproportionately small numbers of
African American State legislators and disproportionately small
numbers of African Americans elected statewide in covered
jurisdictions, especially when the disparities exist in
combination with continuing enforcement efforts and evidence of
new methods of discrimination. In upholding the 1975 extension
of the VRA, the Supreme Court noted that:

The appellants contend in the alternative that, even if
the Act and its preclearance requirement were
appropriate means of enforcing the 15th amendment in
1965, they had outlived their usefulness by 1975, when
Congress extended the Act for another 7 years. We
decline this invitation to overrule Congress' judgment
that the 1975 extension was warranted. In considering
the 1975 extension, Congress acknowledged that largely
as a result of the Act, Negro voter registration had
improved dramatically since 1965. Congress determined,
however, that ``a bleaker side of the picture yet
exists''. . . . [T]hough the number of Negro elected
officials had increased since 1965, most held only
relatively minor positions, none held Statewide office,
and their number in the State legislatures fell far
short of being representative of the number of Negroes
residing in the covered jurisdictions . . . Congress
gave careful consideration to the propriety of
readopting Sec. 5's preclearance requirement. It first
noted that ``[i]n recent years the importance of this
provision has become widely recognized as a means of
promoting and preserving minority political gains in
covered jurisdictions.'' After examining information on
the number and types of submissions made by covered
jurisdictions and the number and nature of objections
interposed by the Attorney General, Congress not only
determined that Sec. 5 should be extended for another 7
years, it gave that provision this ringing endorsement:
``The recent objections entered by the Attorney General
. . . to Section 5 submissions clearly bespeak the
continuing need for this preclearance mechanism. As
registration and voting of minority citizens increases
[sic], other measures may be resorted to which would
dilute increasing minority voting strength. . . . The
Committee is convinced that it is largely Section 5
which has contributed to the gains thus far achieved in
minority political participation, and it is likewise
Section [sic] 5 which serves to insure that progress
not be destroyed through new procedures and techniques.
Now is not the time to remove those preclearance
protections from such limited and fragile success.\58\
---------------------------------------------------------------------------
\58\ City of Rome v. United States, 446 U.S. 156, 180-81 (1980)
(emphasis added) (citations omitted).

As in 1982, the number of African Americans elected to
State legislatures failed to reflect the number of African
Americans in the general population. For example, in States
such as Alabama, Georgia, Louisiana, Mississippi, South
Carolina, and North Carolina, where African Americans make up
35 percent of the population, African Americans made up only
20.7 percent of the total number of State legislators.
As of 2000, only 35 African Americans held a statewide
elected office.\59\ In certain circumstances, these officials
were not elected to their position but were appointed. The
National Commission on the Voting Rights Act confirmed that
``often it is only after blacks have been first appointed to a
vacancy that they are able to win statewide office as
incumbents. Moreover, in order for a black to win statewide
election, a prior appointment to fill a vacancy is not always
sufficient.'' \60\
---------------------------------------------------------------------------
\59\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 38 (citing David Bostis, Black Elected Officials: A
Statistical Summary 2000 (Washington, D.C.: Joint Center for Political
and Economic Studies 2002),21).
\60\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 38.
---------------------------------------------------------------------------
In certain covered States, such as Mississippi, Louisiana,
and South Carolina, African Americans have yet to be elected to
any Statewide office.\61\ For example, in Louisiana, an African
American has yet to be elected Governor and the likelihood that
African American voters in the State would be able to elect
African Americans to such Statewide positions in the near
future was found to be minimal.\62\ The Committee received
evidence, from South Carolina, indicating that the Governor
conveyed his belief, as recently as 2005, that he ``did not
expect to see such an election in the foreseeable future.''
\63\ Similar concerns were expressed about the inability of
African Americans to be elected to positions within
Mississippi. The Committee received testimony that ``for
Statewide races, the higher up you go up the ballot, there's no
integration.'' \64\
---------------------------------------------------------------------------
\61\ Mississippi elected its first African American United States
Representative in 1986.
\62\ See Debo Adegbile, Voting Rights in Louisiana: 1982-2006,
February 2006, at 9.
\63\ See John C. Ruoff and Herbert E. Buhl III, Section 5 and the
Voting Rights Act in South Carolina Since 1982, February 2006, at 1.
\64\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 37.
---------------------------------------------------------------------------
Evidence shows that the experiences and concerns of African
Americans in Mississippi, Louisiana, and South Carolina are not
isolated. It was reported that in North Carolina, as of 1989,
``no candidate who was the choice of the black community had
ever won election to a statewide non-judicial office since
1900.'' \65\ And, ``[e]very statewide election since 1988 where
voters were presented with a biracial field of candidates has
been marked by racially polarized voting.'' \66\
---------------------------------------------------------------------------
\65\ See Oversight Hearing, The Voting Rights Act: Section 5--
History, Scope, and Purpose, Subcommittee on the Constitution,
Committee on the Judiciary, 109th Cong. 1 (October 25, 2005)
(supplement to statement of Anita Earls, Director of Advocacy, UNC
Center for Civil Rights, submitted on November 3, 2005).
\66\ Id.
---------------------------------------------------------------------------
Lack of Support for Latino, Asian American, Native American, and Alaska
Native Elected Officials
The Committee also finds that the number of language
minority officials elected to office has failed to keep pace
with population growth among the minority communities. Latinos
occupied a mere 0.9 percent of the total number of elected
offices in the country, despite being the largest minority
group in the country with approximately more than 15 million
citizens of Hispanic origin residing in the United States. The
number of Asian American elected officials also has not kept
pace with the population growth experienced by the Asian
American community. For example, the number of Asian American
elected officials has increased from 120 in 1978 to 346 in
2004. However, as of 2004, there were twelve million Asian
Americans residing in the United States compared to the 1.2
million Asian Americans who resided in 1970. The candidacies of
Asian Americans, Latinos, Native Americans, and Native Alaskans
have rarely garnered the support of white voters, resulting in
a disparity between the number of white elected officials and
the number of language minority officials elected to office,
including statewide offices.\67\
---------------------------------------------------------------------------
\67\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 43; see also Natalie Landreth and Moira Smith, Voting Rights
Act Reauthorization 2007: Alaska Report, March 2006.
---------------------------------------------------------------------------
Racial and Language Minority Voters and Racially Polarized Voting
The Committee finds it significant that the ability of
racial and language minority citizens to elect their candidates
of choice is affected by racially polarized voting. Racially
polarized voting occurs when voting blocs within the minority
and white communities cast ballots along racial lines and is
the clearest and strongest evidence the Committee has before it
of the continued resistence within covered jurisdictions to
fully accept minority citizens and their preferred candidates
into the electoral process. Testimony presented indicated that
``the degree of racially polarized voting in the South is
increasing, not decreasing . . . [and is] in certain ways re-
creating the segregated system of the Old South, albeit a de
facto system with minimal violence rather than the de jure
system of late.'' \68\ Reports presented by national and State
organizations further document that racially polarized voting
shapes electoral competition in the covered jurisdictions. For
minority voters, there is effectively an election ceiling. In
elections characterized by racially polarized voting, minority
voters alone are powerless to elect their candidates. Moreover,
it is rare that white voters will cross over to elect minority
preferred candidates. For example, in 2000, only 8 percent of
African Americans were elected from majority white
districts.\69\ Language minority citizens fared much worse. As
of 2000, neither Hispanics nor Native Americans candidates have
been elected to office from a majority white district.\70\ The
only chance minority candidates have to be successful are in
districts in which minority voters control the elections. The
breadth of racially polarized voting and its impact on minority
voters represent a serious concern to the Committee. Federal
courts have recognized the scope of this problem, as
highlighted by the following examples.
---------------------------------------------------------------------------
\68\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 95 (citing David Bositis, ``Impact of the `Core' Voting Rights
Act on Voting and Officeholding,'' in Richard M. Valelly (ed.), The
Voting Rights Act: Securing the Ballot [Washington DC: CQ Press, 2006],
119.).
\69\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 38.
\70\ Id. at 43-46.
---------------------------------------------------------------------------
Florida
``The parties agree that racially polarized voting exists
throughout Florida to varying degrees. The results of Florida's
legislative elections over the past 10 years established the
presence of racially polarized voting.'' \71\
---------------------------------------------------------------------------
\71\ Id. at 96 (citing DeGrandy v. Wetherell, 794 F.Supp. 1076
(N.D.Fla 1992), aff'd in part and rev'd in part on other grounds sub
nom. Johnson v. DeGrandy, 512 U.S. 997, 1079 (1994)).
---------------------------------------------------------------------------
South Carolina
``In this case the parties have presented substantial
evidence that this disturbing fact has seen little change in
the last decade. Voting in South Carolina continues to be
racially polarized to a very high degree, in all regions of the
State and in both primary elections and general elections.
Statewide, black citizens generally are a highly politically
cohesive group and whites engage in significant white-bloc
voting. Indeed, this fact is not seriously in dispute.'' \72\
---------------------------------------------------------------------------
\72\ Id. at 96 (citing Colleton County Council, 201 F. Supp. 2d at
641).
---------------------------------------------------------------------------
Louisiana
``A consistently high degree of electoral polarization in
Orleans Parish is proven through both statistical and anecdotal
evidence. Particularly as enhanced by Louisiana's majority vote
requirement, . . . racial bloc voting substantially impairs the
ability of black voters in this parish to become fully involved
in the democratic process.'' \73\
---------------------------------------------------------------------------
\73\ Id. at 96 (citing Major v. Treen, 574 F. Supp. 325, 351-52
(E.D. La. (1983)).
---------------------------------------------------------------------------
Texas
``This court recognizes that Plaintiffs have established
racially polarized voting and a political, social, and economic
legacy of past discrimination.'' \74\
---------------------------------------------------------------------------
\74\ Id. at 96 (citing Session v. Perry, 298 F. Supp. 2d 451,
492(E.D.Tex. 2004), vacated and remanded on other grounds, Jackson v.
Perry, 125 S. Ct. 351 (2004)).
---------------------------------------------------------------------------
South Dakota
``The court concludes that substantial evidence, both
statistical and lay, demonstrates that voting in South Dakota
is racially polarized among whites and Indians in Districts 26
and 27.'' \75\
---------------------------------------------------------------------------
\75\ Id. at 96 (citing Bone Shirt v. Hazletine, 336 F. Supp. 2d
976, 1036 (D.S.D. 2004)).
---------------------------------------------------------------------------
Impact of Racially Polarized Voting
These examples confirm that the presence of racially
polarized voting occurs with frequency and has a direct bearing
upon the outcome of elections. The potential for discrimination
in environments characterized by racially polarized voting is
great, as demonstrated by the increased use of Section 5, the
increased need for Federal observers, and the increased need
for Section 2 litigation. The continued need and increased use
of the temporary provisions demonstrate that efforts to
discriminate are as real today as they were in 1965 and 1982.
Evidence of Discriminatory Conduct--Section 5
Congress designed Section 5 in such a way as to allow the
Federal Government and courts to stay one step ahead of
jurisdictions with a documented history of discrimination
against its minority voters. Section 5 has accomplished this
objective over the last 40 years by requiring covered
jurisdictions to ``preclear'' all voting changes with the
United States District Court for the District of Columbia or
the Department of Justice. In submitting voting changes,
covered jurisdictions have the burden of proving that the
voting changes are not discriminatory in purpose or effect.
Voting changes that do not meet the non-discriminatory criteria
cannot be precleared nor can they be enforced by covered
jurisdictions.
Section 5's reach in preventing discrimination is broad.
Its strength lies not only in the number of discriminatory
voting changes it has thwarted, but can also be measured by the
submissions that have been withdrawn from consideration, the
submissions that have been altered by jurisdictions in order to
comply with the VRA, or in the discriminatory voting changes
that have never materialized. Indeed, the Supreme Court in the
City of Rome v. United States found that ``the recent
objections entered by the Attorney General . . . to Section 5
submissions clearly bespeak the continuing need for this
preclearance mechanism. As registration and voting of minority
voting increases [sic], other measures may be resorted to which
would dilute increasing minority voting strength . . . The
Committee is convinced that it is largely Section 5 which has
contributed to the gains thus far that achieved in minority
political participation, and it is likewise Secton 5 [sic]
which serves to insure that that progress not be destroyed
through new procedures and techniques.'' \76\ The increased
number of objections, revised submissions, and withdrawals over
the last 25 years are strong indices of continued efforts to
discriminate.
---------------------------------------------------------------------------
\76\ 446 U.S. 156, 180-181 (1980)(emphasis added) (citations
omitted).
---------------------------------------------------------------------------
Section 5 Objections
Since 1982, the Department of Justice received thousands of
proposed voting changes annually from covered jurisdictions. Of
the submissions, the Department found more than 700 to be
discriminatory against minority voters. The Committee finds
that voting changes devised by covered jurisdictions resemble
those techniques and methods used in 1965, 1970, 1975, and 1982
including: enacting discriminatory redistricting plans;
switching offices from elected to appointed positions;
relocating polling places; enacting discriminatory annexations
and deannexations; setting numbered posts; and changing
elections from single member districts to at-large voting and
implementing majority vote requirements. The Committee received
testimony indicating that these changes were intentionally
developed to keep minority voters and candidates from
succeeding in the political process.\77\ For example, in
Kilmichael, Mississippi,
---------------------------------------------------------------------------
\77\ See Complete Listing of Objections Pursuant to Sections 3(c)
and 5 of the Voting Rights Act, Department of Justice, Civil Rights
Division, July 11, 2005, available at http://www.usdoj.gov/crt/voting/
sec--5/obj--activ.htm.

[D]uring the local elections of 2001, an unprecedented
number of African Americans [sic] candidates were
running for office. Three weeks before the election,
however, the town's mayor and the all white five-member
Board of Alderman canceled the election. In objecting
to this change under Section 5, the Justice Department
found that the cancellation occurred after Census data
revealed that African Americans had become a majority
in the town. The town did not reschedule the election,
and DOJ forced it to hold one in 2003 where upon
Kilmichael elected its first African American mayor,
along with three African American aldermen.\78\
---------------------------------------------------------------------------
\78\ See Caroline Fredrickson and Deborah J. Vagins, Promises to
Keep: The Impact of the Voting Rights Act, March 2006, at 12 (citing
Melany Eversley, For a Mississippi Town, Voting Rights Act Made A
Change, USA Today (Aug. 5, 2005) and Stuart Comstock-Gay, Executive
Director, National Voting Rights Institute, Ballot Box Equality (Aug.
5, 2005), available at http:// www.tompaine.com/articles/2005/08/05/
ballot--box--equality.php.

A breakdown of the objections to Statewide plans issued by
the Department of Justice pursuant to Section 5 reveals that
most objections, between 1982 and 2005, occurred specifically
in ``the Black Belt of most southern states, including
majority-minority counties.'' \79\ In its report, the National
Commission on the Voting Rights Act noted that ``in nine of the
sixteen Section 5-covered states, more objections were
interposed after 1982 than before.'' \80\ The report emphasized
that ``all but two of the sixteen states covered entirely or
partially by Section 5 are states with a large non-white
population--Latino, black and others. . . . The close link
between large non-white populations and objections is also
strikingly visible within individual States. . . .'' \81\ (See
Appendices A-J).
---------------------------------------------------------------------------
\79\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 54.
\80\ Id. at 53.
\81\ Id. at 54.
---------------------------------------------------------------------------
Testimony received by the Committee showed an increase in
the number of objections issued by the Department of Justice
since 1982, with most objections continuing to occur in areas
heavily populated by minority voters. The Committee received
testimony highlighting the necessity of Section 5 objections to
protect minority voters from actions undertaken by local
governments. For example, the Department of Justice has
interposed 112 objections in Mississippi since 1982, with most
occurring in county and local governments. Sixty-eight of the
91 objections interposed in Georgia since 1982 were to changes
made at the county or municipal levels. Section 5's protections
have been vital to ensuring that covered jurisdictions,
including the localities, were not successful in their efforts
to disenfranchise minority voters or dilute the weight of their
vote.
Testimony from other Non-Governmental Organizations (NGO)
revealed the impact that discriminatory tactics, such as the
discriminatory redistricting plan administered in the City of
Albany, Georgia, have had on minority voters and the necessity
of Section 5 to prevent enforcement:

Following the 2000 census, the City of Albany, Georgia,
adopted a new redistricting plan for its mayor and
commission to replace an existing malapportioned plan,
but it was rejected by the Department of Justice under
Section 5. The department noted that while the Black
population had steadily increased in Ward 4 over the
past two decades, subsequent redistricting had
decreased the Black population ``in order to forestall
the creation of a majority black district.'' The letter
of objection concluded it was ``implicit'' that ``the
proposed plan was designed with the purpose to limit
and retrogress the increased black voting strength in
Ward 4, as well as in the city as a whole.'' A
subsequent court ordered plan remedied the vote
dilution in Ward 4. But, in the absence of Section 5,
elections would have gone forward under a plan in which
purposeful discrimination was ``implicit,'' and which
could only have been challenged in time consuming vote
dilution litigation under Section 2, in which minority
plaintiffs would have borne the burden of proof and
expense.\82\
---------------------------------------------------------------------------
\82\ See Laughlin McDonald, The Case For Extending and Amending the
Voting Rights Act: Voting Rights Litigation, 1982-2006: A Report of the
Voting Rights Project of the American Civil Liberties Union, March
2006, at 5 (citing letter from J. Michael Wiggins, Acting Assistant
Attorney General, to Al Greishaber, Jr., (September 23, 2002); Wright
v. City of Albany, Alabama, 306 F.Supp.2d 1228 (M.D.GA. 2003)).

Other examples of attempts to employ voting systems in a
discriminatory manner were reported to the Committee,
including:
Louisiana
``After the Washington Parish School Board finally added a
second majority-African American district in 1993 (bringing the
total to 2 out of 8, representing an African American
population of 32 percent), it immediately created a new at-
large seat to ensure that no white incumbent would lose his
seat and to reduce the impact of the two African American
members (to 2 out of 9). The DOJ objected.'' \83\
---------------------------------------------------------------------------
\83\ See Debo Adegbile, Voting Rights in Louisiana: 1982-2006,
February 2006, at 21 (citing Letter from James P. Turner, Assistant
Attorney General, Civil Rights Division, U.S. DoJ, to Sherri Marcus
Morris, Assistant Attorney General, State of Louisiana, and Jerald N.
Jones, City of Shreveport (September 11, 1995)).
---------------------------------------------------------------------------
South Carolina
``In 1989, following a settlement of Section 2 claims in
NAACP v. City of Lancaster (D.S.C. 1989), the city adopted a
redistricting plan which changed a system of seven members,
including the mayor, elected at large by plurality votes to a
nine member council, six elected from single member districts
and three, including the mayor, elected at large by plurality
vote in staggered terms. In objecting to the two additional
members, the Department noted that the additional districts
appeared to have been added after it became clear that black
citizens would have an opportunity to elect candidates of their
choice in three of the six districts, creating a city council
that mirrored the 41 percent African American population.
Further, the Department observed that preserving seats for two
white incumbents was a major consideration in the addition. In
2006, three African Americans serve on the seven member
council.'' \84\
---------------------------------------------------------------------------
\84\ See John C. Ruoff and Herbert E. Buhl III, Section 5 and the
Voting Rights Act in South Carolina Since 1982, February 2006, at 21.
---------------------------------------------------------------------------
Virginia
``Pittsylvania County proposed a redistricting plan for its
board of supervisors and school board members which would have
reduced the African American population in the only majority-
minority district in the county (Bannister district). The DOJ
objected, finding the proposed reduction was retrogressive. In
fact, according to the DOJ, even a minute reduction would have
greatly impaired African American voters' ability to elect
candidates of choice. Furthermore, the existence of alternative
plans that actually ameliorated minority voters' ability to
elect their choice candidates underscored the DOJ's
objection.'' \85\
---------------------------------------------------------------------------
\85\ See Anita Earls, Kara Millonzi, Oni Seliski, and Torrey Dixon,
Voting Rights in Virginia, March 2006, at 11 (citing Letter from Ralph
F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, U.S.
DoJ, to William Sleeper, County Administrator, and Fred M. Ingram,
Chairperson, Board of Supervisors of Chatham, VA (Apr. 29, 2002)).
---------------------------------------------------------------------------
Examples of repeated attempts by covered States, such as
Mississippi, Virginia, and South Carolina, to preclear voting
changes that have already been struck down as discriminatory or
would have affected gains made by minority voters were also
reported to the Committee. The deliberate repeated attempts
demonstrate the continued importance of the VRA. For example:
Mississippi
In testimony presented to the Committee, the National
Voting Rights Institute described its involvement, in 1995, in
stopping Mississippi from resurrecting and enforcing its dual
voter registration system, which was initially enacted in 1892
to disenfranchise Black voters. After being the last State in
the country to maintain such a system, it was struck down in
1987 and the State ultimately administered a unitary
registration system. However, under the guise of complying with
the National Voter Registration Act of 1993 (NVRA), the State
of Mississippi revived its dual registration system. Under one
system, the State enabled citizens to register for Federal
elections in compliance with the NVRA. At the same time, the
State continued to maintain, under a separate system, its pre-
existing registration process, enabling voters to register for
all local, State, and Federal elections. Knowing that
maintenance of two registration systems had previously been
struck down as discriminatory, the State refused to submit the
change for preclearance under Section 5. It was only in
response to an enforcement action filed under Section 5 that
Mississippi submitted the change in registration system to the
Department of Justice for preclearance. Even more striking was
the fact that even after the Department denied preclearance,
Mississippi failed to enact legislation to integrate the NVRA
as part of the State's unitary registration system.\86\
---------------------------------------------------------------------------
\86\ See Robert McDuff, The Voting Rights in Mississippi: 1982-
2006, April 2006; see also Oversight Hearing on the Voting Rights Act:
Section 5--Preclearance Standards, Subcommittee on the Constitution,
Committee on the Judiciary, 109th Cong. 1 (November 1, 2005)(statement
of Brenda Wright, National Voting Rights Institute).
---------------------------------------------------------------------------
South Carolina
``In 2003, South Carolina, enacted legislation adopting the
identical method of elections for the board of trustees of the
Charleston County School District that had earlier, in a case
involving the county council, been found to dilute minority
voting strength in violation of Section 2.\87\ Under the
preexisting system, school board elections were non-partisan,
multi-seat contests decided by plurality vote, which allowed
minority voters the opportunity to bullet vote, or concentrate
their votes on one or two candidates and elect them to office.
That possibility would have been effectively eliminated under
the proposed new partisan plan system. In denying preclearance
to the county's submission, DOJ concluded:
---------------------------------------------------------------------------
\87\ See Laughlin McDonald, The Case For Extending and Amending the
Voting Rights Act: Voting Rights Litigation, 1982-2006: A Report of the
Voting Rights Project of the American Civil Liberties Union, p. 6
(March 2006)(citing United States v. Charleston County and Moultrie v.
Charleston County Council, 316 F.Supp.2d 268 (D.S.C. 2003), aff'd 365
(4th Cir. 2004), cert. den'd, 125 S.Ct.606(2004)).

`[t]he proposed change would significantly impair the
present ability of minority voters to elect candidates
of choice to the school board and to participate fully
in the political process.' The department further noted
that: every black member of the Charleston County
delegation voted against the proposed change, some
specifically citing the retrogressive nature of the
change. Our investigation also reveals that the
retrogressive nature of this change is not only
recognized by black members of the delegation, but is
recognized by other citizens in Charleston County, both
elected and unelected. Section 5 thus prevented the
State from implementing a new and retrogressive voting
practice, one which everyone understood was adopted to
dilute black voting strength and insure white control
of the school board.'' \88\
---------------------------------------------------------------------------
\88\ Id.(citing R. Alexander Acosta, Assistant Attorney General, to
C. Havird Jones, Jr., February 26, 2004).
---------------------------------------------------------------------------
Virginia
``Northampton County proposed a change in the method of
electing the board of supervisors by collapsing six districts
into three larger districts in September 2001. The DOJ
objected, finding that three of the six districts were
majority-minority districts in which African American voters
regularly elected their candidates of choice. The new plan
would have diluted the minority-majorities and caused them to
completely disappear in two of the three districts--clearly
having retrogressive effects. Two years later, in 2003, the
county provided a new six-district plan, which had the same
retrogressive effects of the three-district plan. The DOJ
objected and provided a model non-retrogressive, six-district
plan, which has yet to be followed by the county.'' \89\
---------------------------------------------------------------------------
\89\ See Anita Earls, Kara Millonzi, Oni Seliski, and Torrey Dixon,
Voting Rights in Virginia (March 2006) at 11 (citing letter from Ralph
F. Boyd, Jr., Assistant Attorney General, Civil Rights Division, U.S.
DoJ, to Bruce Jones, County Attorney for Northampton County, VA (Sept.
28, 2001); letter from Ralph F. Boyd, Jr., Assistant Attorney General,
Civil Rights Division, U.S. DoJ, to Bruce Jones, County Attorney for
Northampton County, VA (May 19, 2003); and letter from J. Michael
Wiggins, Acting Assistant Attorney General, Civil Rights Division, U.S.
DoJ, to Bruce Jones, County Attorney for Northampton County, VA (Oct.
21, 2003)).
---------------------------------------------------------------------------
Section 5--More Information Request Letters
Efforts to discriminate over the past 25 years were not
just demonstrated by objection letters issued under Section 5
but were also reflected by an administrative mechanism, known
as a ``more information request (MIR).'' MIRs are used by the
Department of Justice when insufficient information is
submitted with a proposed voting change to enable the
Department of Justice to make a determination whether a voting
change has the ``purpose or effect of denying or abridging the
right to vote.'' \90\ The use of MIRs force covered
jurisdictions to take action when seeking to preclear voting
changes that may be discriminatory, including deciding whether
to: (1) submit additional information to prove a change is non-
discriminatory; (2) withdraw a proposed change from
consideration because it is discriminatory; (3) submit a new or
amended non-discriminatory voting plan; or (4) make no
change.\91\ The actions taken by a jurisdiction are often
illustrative of a jurisdiction's motives. For example,
testimony presented to the Committee revealed that MIRs
affected more than 800 additional voting changes that were
submitted for preclearance, compelling covered jurisdictions to
either alter the proposal or withdraw it from consideration
altogether.\92\ The National Voting Rights Committee confirmed
that since 1982, over 205 voting changes have been withdrawn as
a result of Section 5's MIR tool.\93\ The location of the
withdrawn voting changes parallels the pattern of objections
interposed by the Department of Justice, occurring primarily
within the ``Black Belt'' of the Southern States.\94\ For
example, in North Carolina alone, it was reported that the
State has withdrawn more than 10 submissions as a result of the
MIRs since 1982, including five since 2000.\95\ (See Appendix
K).
---------------------------------------------------------------------------
\90\ See Section 5.
\91\ See 28 C.F.R.51.37 and 51.40.
\92\ See Juan Cartagena, Final Report on the State of Voting Rights
in New York City, Including the Impact of Section 5 and Section 203 of
the Voting Rights Act on Minority Empowerment, February 27, 2006, at
20-22.
\93\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 58.
\94\ Id.
\95\ See LeeAnne Quatrucci, Voting Rights Act in North Carolina
1982-2006, March 2006, at 2.
---------------------------------------------------------------------------
The notable impact that Section 5 MIRs have had on
protecting minority voters was presented to the Committee:

In Monterey County, election officials decided to
reduce the number of polling places for the special
gubernatorial recall election held on October 7, 2003.
According to county officials, the number of polling
places utilized in the November 2002 general election
was reduced from 190 to 86 for the special recall
election. The Department of Justice ultimately approved
the voting precinct only after Monterey County withdrew
from Section 5 consideration five precinct and polling
place consolidations. Absent Section 5 coverage there
would not have been a withdrawal of these particular
polling place consolidations. The only alternative
would have been to file a Section 2 case and seek a
preliminary injunction enjoining the consolidation of
these polling places.\96\
---------------------------------------------------------------------------
\96\ See Statement of Joaquin G. Avila, The Continued for Federal
Oversight of California's Electoral Process, to the Honorable Steve
Chabot, Chairman, Subcommittee on the Constitution (November 2005).

The example highlights the fact that despite efforts to
enact discriminatory changes. Section 5 has been instrumental
in ensuring that only voting changes that are non-
discriminatory in purpose and effect are enforceable by a
covered jurisdiction.
Section 5--Enforcement and Non-Compliance
In addition to the increased number of objections
interposed under Section 5, the continued need for additional
information related to Section 5 submissions, and the increased
number of submissions withdrawn from consideration under
Section 5, the Committee finds that covered jurisdictions
continue to resist submitting voting changes for preclearance,
as required by Section 5. In fact, the Committee received
testimony from the National Commission on the Voting Rights Act
that the Department of Justice has no ``systematic way to
monitor all such jurisdictions to ensure that all changes are
submitted for preclearance.'' \97\ As a result, many defiant
covered jurisdictions and State and local officials continue to
enact and enforce changes to voting procedures without the
Federal Government's knowledge. The Committee finds that
Section 5's enforcement authority played a critical role,
enabling the Department of Justice and private citizens to
monitor covered jurisdictions to the fullest extent possible to
ensure full compliance was achieved. The Committee further
finds that much of the burden of enforcing Section 5 over the
years has fallen to private citizens whose assistance has been
critical to ensuring that discriminatory changes are stopped
before they negatively affect minority voters.
---------------------------------------------------------------------------
\97\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 66.
---------------------------------------------------------------------------
South Dakota
Perhaps the most egregious example of non-compliance
received by the Committee occurred in South Dakota. Beginning
in 1975, former South Dakota Attorney General William Janklow
described the preclearance requirement as a ``facial
absurdity'' and advised against compliance, stating ``I see no
need to proceed with undue speed to subject our State laws to a
`one-man veto' by the United States Attorney General.'' \98\
And, while the Department of Justice sued South Dakota in 1978
and 1979 to enforce Section 5's requirements, compliance
efforts in subsequent years fell short.\99\ As a result,
between 1976 and 2002, South Dakota enacted more than 600
statutes and voting changes, seeking preclearance in less than
five cases.\100\
---------------------------------------------------------------------------
\98\ 1977 S.D. Op. Atty. Gen.175: 1977 WL 36011 (S.D.AG.)
\99\ See http://www.usdoj.gov/crt/voting/sec--5/sd--obj2.htm.
\100\ See http://www.usdoj.gov/crt/voting/sec--5/sd--obj2.htm.
---------------------------------------------------------------------------
The lack of enforcement enabled South Dakota to defy
Federal oversight requirements and to continue enforcing
changes which negatively impacted Native American citizens and
their ability to vote. Over the last several decades, the State
enacted voting changes that ``authoriz[ed] municipalities to
adopt numbered seat requirements . . . requir[ed] a majority
vote for nomination in primary elections for United States
Senate, congressman, and governor . . . and [enforced]
redistricting plans . . . [that] packed Indians into certain
districts.'' \101\ In 2002, members of the ``Oglala and Rosebud
Sioux Tribes in Shannon and Todd counties sued the State of
South Dakota, with the assistance of the ACLU, to enforce
Section 5's requirements. These efforts resulted in a consent
decree under which the State agreed to fulfill its preclearance
obligations over a 3-year period.'' \102\
---------------------------------------------------------------------------
\101\ See Laughlin McDonald, ``The Need to Expand the Coverage of
Section Five of the Voting Rights Act to Indian Country,'' The Future
of the Voting Rights Act (Russell Sage Foundation, 2006) edited by
Richard H. Pildes, Rodolfo de la Garza, David Epstein, and Sharyn
O'Halloran at 27.
\102\ Id. at 31.
---------------------------------------------------------------------------
Other examples of non-compliance were presented to the
Committee. In California, it was reported that ``there is a
significant problem relating to the enforcement of the Section
5 preclearance provisions,'' \103\ the significance of which
was noted by the Supreme Court in Lopez v. Monterey
County.\104\ The Lopez Court highlighted the particular failure
by Monterey County to comply with Section 5, finding that `The
County, although covered by Section 5 of the Act, failed to
seek Federal preclearance for any of its six consolidation
ordinances. Nor did the State preclear its 1979 law. . . .''
\105\
---------------------------------------------------------------------------
\103\ See Statement of Joaquin G. Avila, The Continued for Federal
Oversight of California's Electoral Process, to the Honorable Steve
Chabot, Chairman, Subcommittee on the Constitution (November 2005).
\104\ See Lopez v. Monterey County, 525 U.S. 266 (1999).
\105\ Id. at 273.
---------------------------------------------------------------------------
Testimony from many outside groups confirms the importance
of Section 5's enforcement mechanisms, especially in protecting
smaller, more rural communities within covered States, where
Federal oversight has been limited and non-compliance
extensive. For example, testimony from South Carolina revealed
that in Lee County, the ``County revised its redistricting plan
and the revised plan was precleared in 1993. The County set an
expedited special election schedule even though the new plan
included substantial changes from the previous plan. The county
held a primary in 1994 even though the [new] plan had not been
precleared. . . . Both the Department of Justice and the NAACP
filed in the District Court to enjoin the special general
elections and to vacate the special primary. The court issued a
temporary restraining order.'' \106\ Later, a ``three judge
panel granted summary judgment motions by the plaintiffs
vacating the April 19, 1994 special primary and enjoining
further implementation of the special election procedure.''
\107\
---------------------------------------------------------------------------
\106\ See John C. Ruoff and Herbert E. Buhl III, Section 5 and the
Voting Rights Act in South Carolina Since 1982, February 2006, at 27
(citing N.A.A.C.P. v. Lee County Council, C.A. No. 3:94-01575-17
(D.S.C., 1994; United States v. Lee County, C.A. No. 3:94-01582-17
(D.S.C., 1994)).
\107\ Id.
---------------------------------------------------------------------------
Additional testimony indicates that ``Louisiana's record of
complying with Section 5 for local elections is even worse than
its record for State elections, which is why Section 5 plays an
important role in Louisiana in preventing voting discrimination
for local offices.'' \108\ For example, ``[T]he Western
District Court for Louisiana has enjoined multiple elections in
jurisdictions that failed to preclear voting changes. In 1991,
it enjoined the City of Monroe from holding elections in Ward
1, 2, and 4 until obtaining preclearance for elections to the
City Court. In 1994, the same District Court enjoined elections
under the Vernon Parish School Board's post 1990
reapportionment, since the School Board failed to submit its
1994 modified reapportionment resolution. The School Board's
reapportionment also violated the one-person one-vote
standard.'' \109\
---------------------------------------------------------------------------
\108\ See Debo Adegbile, Voting Rights in Louisiana: 1982-2006,
February 2006, at 31.
\109\ Id.
---------------------------------------------------------------------------
The Committee was also made aware that unofficial changes
to voting practices are routinely made by local elections
officials. Local election officials and poll workers often make
arbitrary decisions in polling locations that effectively
change voting procedures. In some cases, these changes have
been in effect for years without preclearance and are now
considered standard practice. For example, in Mississippi, the
outcome for a race for Superintendent in Hinds County was
affected by a decision whether to count affidavit ballots that
did not contain signatures on the ballot. The decision to
accept ballots only with signatures was made by a local
election official and the issue, on which the outcome of the
race for Superintendent depended, was litigated to the Supreme
Court. Despite a ruling from the Court that affidavit ballots
do not need signatures, the county continued to count only
those ballots with signatures.\110\ Arbitrary decisions made in
polling places out of the sight of Federal officials, and the
impact that such changes have on minority voters with no
protection other than the temporary provisions of the VRA is of
significant concern to the Committee.
---------------------------------------------------------------------------
\110\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006,(Highlights of Hearings of the National Commission on the Voting
Rights Act (2006)).
---------------------------------------------------------------------------
Federal Examiners and Observers
The Committee finds that indicia of discrimination are
reflected in the continued need for Federal observers to
monitor polling places located in covered jurisdictions. The
assignment of Federal officials to these jurisdictions
demonstrates that the discriminatory conduct experienced by
minority voters is not solely limited to tactics to dilute the
voting strength of minorities but continues to include tactics
to disenfranchise, such as harassment and intimidation inside
polling locations. Under Section 8, observers are assigned to a
polling location only when there is a reasonable belief that
minority citizens are at risk of being disenfranchised. While
observers are not authorized to take action against the
perpetrators of discriminatory conduct, the Committee finds
that they have served a critical oversight function, monitoring
and reporting on the actions of voters and poll workers inside
the polling locations.
Since 1965, more than 22,000 Federal observers have been
assigned to protect minority voters in polling places. In the
last 25 years, between 300 and 600 observers have been assigned
annually to covered jurisdictions to protect minority voters.
In 2004 alone, more than 1,400 observers were sent to 105
jurisdictions in 29 States to protect the rights of minority
citizens.
According to the National Commission on the Voting Rights
Act, ``Louisiana, Mississippi, Alabama, Georgia, and South
Carolina--five of the six States originally covered by Section
5--accounted for 66 percent of all the coverages since 1982.
Mississippi alone, long considered the most resistant of all
States to black voting rights, accounted for 40 percent [of the
observers assigned since 1982].'' \111\ (See Appendix L.) In
South Carolina, the Committee received testimony revealing that
observers have been assigned 23 times since 1982 to observe 37
separate elections to ensure the rights of African Americans
were protected. In Georgia, observers were present in 28
counties monitoring 57 elections within the State since 1982.
---------------------------------------------------------------------------
\111\ See Protecting Minority Voters: The Voting Rights Act at Work
1982-2005, The National Commission on the Voting Rights Act, February
2006, at 61.
---------------------------------------------------------------------------
The Committee further finds that observers have played a
critical role in law enforcement efforts to protect minority
citizens. These observations often become the foundation of
Department of Justice enforcement efforts. For example, the
Committee received testimony demonstrating the importance of
the observer report in United States v. Conecuh County, Alabama
(Civil Action No. 83-1201 (S.D. Ala. June 12, 1984)). The
personal accounts of observers were instrumental in enabling
Federal prosecutors to proceed against County officials for
discriminatory conduct against African Americans in polling
locations.\112\
---------------------------------------------------------------------------
\112\ See Oversight Hearing, The Voting Rights Act: Sections 6 and
8--The Federal Examiner and Observer Program, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 15,
2005) (statement of Barry J. Weinberg, former Deputy Chief and Acting
Chief, Voting Section, Civil Rights Division, U.S. Department of
Justice).
---------------------------------------------------------------------------
The Committee also finds it significant that Federal
observers have become increasingly necessary to ensure that
language assistance within jurisdictions covered by Section 203
are fulfilled. The Committee received testimony revealing that
more than 800 Federal observers were assigned to covered
counties in New York City from 1985 through 2004 to protect
Asian American and Latino voters' full participation in the
electoral process.\113\ These observers were necessary to
ensure that polling place workers translated documents and
procedures for language minority citizens as required by
Section 203. In other locations, observers were able to
identify and report back to the Department of Justice instances
in which language minority voters fell victim to the harassment
and intimidation of polling officials. For example, observers
were recently assigned to covered jurisdictions, such as in
Georgia, Alabama, and Texas, to protect Latino and Asian
American voters.
---------------------------------------------------------------------------
\113\ See Juan Cartagena, Final Report on the State of Voting
Rights in New York City, Including the Impact of Section 5 and Section
203 of the Voting Rights Act on Minority Empowerment, February 27,
2006, at 22-23.
---------------------------------------------------------------------------
Language Minority Citizens and Sections 4(f) and 203
The Committee finds that Latinos, Asian Americans, Alaskan
Natives, and Native Americans continue to suffer from
discrimination in voting. According to some in California,
Latinos continue to be victims of discriminatory tactics
employed at the local level, such as on school boards and
county governments, where fragmenting and packing tactics
continue to prevent Hispanics from electing candidates of their
choice.\114\ The Committee received testimony disclosing
efforts on the part of officials in the City of Seguin, Texas,
to prevent Latinos from gaining a majority of seats on the city
council by attempting to dismantle a fifth Latino district in
its new redistricting plan. Similar testimony was received from
language minority citizens in New York, Alaska, Arizona,
California, Florida, and South Dakota, all of whom identified
similar tactics used to keep Native Alaskans, Native Americans,
Asian Americans and Latinos from registering and casting
effective ballots. These tactics include providing ineffective
language assistance and fragmenting and packing Hispanic and
Asian Americans.
---------------------------------------------------------------------------
\114\ See Statement of Joaquin G. Avila, The Continued for Federal
Oversight of California's Electoral Process, to the Honorable Steve
Chabot, Chairman, Subcommittee on the Constitution (November 2005).
---------------------------------------------------------------------------
The Committee also received testimony revealing efforts by
officials in the covered States of Alabama and Georgia to
discriminate against language minority citizens. For example,
local Officials in Long County, Georgia attempted to
disenfranchise Hispanic voters by challenging their citizenship
status solely on the basis of surname.\115\ In Alabama, Asian
American voters attempting to vote in an election with an Asian
American candidate were harassed and threatened by supporters
of an opposing candidate in polling locations in Bayou La
Batre.\116\ It was only with the assistance of the Department
of Justice that Asian American and Hispanic voters in these
jurisdictions were able to cast ballots without barriers.\117\
---------------------------------------------------------------------------
\115\ See Robert Kengle, Voting Rights in Georgia: 1982-2006 (March
2006) at 33.
\116\ See Letter from Karen K. Narasaki, President and Executive
Director, Asian American Justice Center to the Honorable Steve Chabot,
Chairman, Subcommittee on the Constitution (November 22, 2005).
\117\ See Oversight Hearing, The Voting Rights Act: Section 203--
Bilingual Assistance (Part I), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1 (November 8, 2005) (statement
of the Honorable Bradley J.Schlozman, Acting Assistant Attorney
General, Civil Rights Division, U.S. Department of Justice).
---------------------------------------------------------------------------
Moreover, in jurisdictions covered by Section 203, the
Committee received information that Asian Americans, Native
Americans, Hispanics, and Native Alaskans continue to
experience hardships and barriers to voting and casting ballots
because of their limited abilities to speak English and high
illiteracy rates. In testimony presented to the Committee, it
was reported that ``40 percent of Asian Americans and Hispanics
in California are limited English proficient, with more than a
quarter living in linguistically isolated households.'' \118\
The Committee received testimony revealing that 63 percent of
Asian Americans in New York reside in limited English
proficient homes. Hispanics are similarly situated, with more
than 75 percent of Latinos nationwide reportedly speaking a
language other than English in the home, and 23 percent of
registered Latinos identifying Spanish as their primary
language.\119\ In testimony presented by the National Congress
of American Indians, it was reported that many Native people
speak English only as a second language, with many Native
Alaskans and Native Americans continuing to speak in their
native tongue, particularly among the elders--``many who speak
English poorly''--and many tribal businesses that continue to
conduct business exclusively or primarily in Native
languages.\120\
---------------------------------------------------------------------------
\118\ See Letter from Stewart Kohl, President and Executive
Director, The Asian Pacific American Legal Center of Southern
California, to The Honorable Steve Chabot, Chairman, Subcommittee on
the Constitution (November 16, 2005).
\119\ Id.; see also Juan Cartagena, Final Report on the State of
Voting Rights in New York City, Including the Impact of Section 5 and
Section 203 of the Voting Rights Act on Minority Empowerment, February
27, 2006.
\120\ See Oversight Hearing, The Voting Rights Act: Section 203--
Bilingual Assistance (Part II), Subcommittee on the Constitution, House
Committee on the Judiciary, 109th Cong. 1(November 9, 2005) (joint
statement of the National Congress of American Indians and the Native
American Rights Fund). See also, The Native Languages Protection Act of
1990.

Chart I: California LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 62%................. 44%
Cambodian 56%................. 32%
Korean 52%................. 41%
Chinese 48%................. 34%
Latino 43%................. 26%
Asian overall 39%................. 26%
Filipino 23%................. 11%
Japanese 22%................. 18%
California 20%................. 10%
White 3%................. 2%
------------------------------------------------------------------------

Chart J1: San Francisco County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 63%................. 43%
Chinese 58%................. 42%
Asian overall 50%................. 35%
Latino 42%................. 23%
Korean 41%................. 33%
Filipino 29%................. 14%
County 25%................. 13%
White 6%................. 4%
------------------------------------------------------------------------

Chart J2: San Mateo County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 46%................. 29%
Latino 45%................. 24%
Korean 39%................. 26%
Chinese 37%................. 23%
Asian overall 29%................. 16%
Filipino 23%................. 9%
County 18%................. 8%
White 4%................. 2%
------------------------------------------------------------------------

Chart J3: Alameda County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 59%................. 44%
Chinese 50%................. 36%
Korean 44%................. 32%
Latino 40%................. 22%
Asian overall 38%................. 25%
Filipino 23%................. 10%
County 18%................. 9%
White 3%................. 2%
------------------------------------------------------------------------

Chart J4: Santa Clara County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 65%................. 45%
Korean 49%................. 36%
Chinese 44%................. 31%
Asian overall 40%................. 25%
Latino 38%................. 19%
Filipino 26%................. 10%
County 22%................. 10%
White 4%................. 2%
------------------------------------------------------------------------

Chart J5: Los Angeles County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 63%................. 45%
Korean 59%................. 47%
Cambodian 57%................. 33%
Chinese 54%................. 39%
Latino 48%................. 30%
Asian overall 43%................. 30%
County 29%................. 15%
Japanese 25%................. 22%
Filipino 23%................. 11%
White 7%................. 4%
------------------------------------------------------------------------

Chart J6: Orange County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 64%................. 46%
Korean 54%................. 39%
Latino 48%................. 27%
Asian overall 45%................. 29%
Chinese 40%................. 26%
County 22%................. 10%
Filipino 17%................. 7%
White 2%................. 1%
------------------------------------------------------------------------

Chart J7: San Diego County LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 60%................. 45%
Korean 39%................. 31%
Latino 39%................. 23%
Chinese 35%................. 25%
Asian overall 32%................. 21%
Filipino 23%................. 11%
County 15%................. 7%
White 2%................. 1%
------------------------------------------------------------------------

Chart J8: Sacramento County--LEP and LIH Rates
------------------------------------------------------------------------
Percentage of Percentage of
Population that is Households That Are
Group Limited English Linguistically
Proficient (LEP) Isolated (LIH)
------------------------------------------------------------------------
Vietnamese 60%................. 47%
Chinese 43%................. 32%
Korean 38%................. 27%
Asian overall 38%................. 24%
Latino 27%................. 16%
Filipino 18%................. 9%
County 12%................. 6%
White 4%................. 2%
------------------------------------------------------------------------

Chart K: Southern California Exit Poll Data--LEP Rates
------------------------------------------------------------------------
Percentage of APIA Voters Who
Election Are Limited English Proficient
------------------------------------------------------------------------
November 2004* 40%
November 2002 32%
November 2000 46%
March 2000 47%
November 1998 35%
------------------------------------------------------------------------
*Represents preliminary findings. Subject to adjustment based on
statistical weighting

Chart L: Southern California Exit Poll Data--More Likely to Vote if Assistance Received
----------------------------------------------------------------------------------------------------------------
Percentage of APIA Voters More Percentage of Latino Voters More
Election Likely to Vote if Assistance Likely to Vote if Assistance
Received Received
----------------------------------------------------------------------------------------------------------------
November 2000 54%............................... 46%
March 2000 53%............................... 42%
November 1998 43%............................... 38%
----------------------------------------------------------------------------------------------------------------

Chart M1: San Francisco County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 47%................. 37%
Chinese 39%................. 34%
Asian overall 32%................. 30%
County 19%................. 20%
Filipino 17%................. 13%
Korean 14%................. 21%
White 5%................. 5%
------------------------------------------------------------------------

Chart M2: San Mateo County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 22%................. 11%
County 15%................. 14%
Chinese 13%................. 15%
Asian overall 11%................. 13%
Filipino 10%................. 9%
White 7%................. 2%
Korean 5%................. 21%
------------------------------------------------------------------------

Chart M3: Alameda County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 35%................. 39%
Chinese 24%................. 29%
Asian overall 18%................. 22%
County 18%................. 14%
Korean 11%................. 22%
Filipino 11%................. 11%
White 8%................. 2%
------------------------------------------------------------------------

Chart M4: Santa Clara County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 32%................. 42%
County 17%................. 16%
Asian overall 15%................. 23%
Filipino 12%................. 11%
Chinese 11%................. 22%
Korean 10%................. 26%
White 7%................. 2%
------------------------------------------------------------------------

Chart M5: Los Angeles County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 39%................. 41%
County 30%................. 23%
Chinese 24%................. 30%
Asian overall 18%................. 24%
Korean 12%................. 30%
White 11%................. 4%
Filipino 10%................. 10%
Japanese 7%................. 12%
------------------------------------------------------------------------

Chart M6: Orange County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 34%................. 42%
County 21%................. 19%
Asian overall 19%................. 26%
Chinese 12%................. 19%
Korean 10%................. 27%
Filipino 8%................. 8%
White 7%................. 2%
------------------------------------------------------------------------

Chart M7: San Diego County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 40%................. 38%
Asian overall 18%................. 16%
County 17%................. 14%
Chinese 16%................. 14%
Filipino 14%................. 7%
Korean 10%................. 24%
White 8%................. 2%
------------------------------------------------------------------------

Chart M8: Sacramento County--H.S. and Child LEP
------------------------------------------------------------------------
Less Than High
Group School Degree Child LEP Rate
------------------------------------------------------------------------
Vietnamese 39%................. 34%
Chinese 29%................. 25%
Asian overall 27%................. 29%
Korean 20%................. 15%
County 17%................. 11%
Filipino 12%................. 4%
White 11%................. 5%
------------------------------------------------------------------------

The Committee has received testimony highlighting instances
where citizens who are unable to speak English proficiently
have encountered degraded educational opportunities. Evidence
of unequal educational opportunities can also be found in court
decisions. For example, in the State of Alaska, testimony
revealed that during ``the 2003-2004 school year, the statewide
graduation rate for all students was 62.9 percent compared to
the 47.5 percent of Alaska Native students who graduated.''
\121\ Reports from the State of Alaska further highlight recent
cases, such as Kasayulie v. State of Alaska, in which the
Alaska Superior Court identified discrepancies in funding made
available to Native and non-Native students.\122\ In
particular, the Court reiterated the ``affirmative duty on the
State to provide public education,'' and found the discrepancy
in funding for school construction in urban and rural Alaska
unconstitutionally discriminated against Alaska Natives.\123\
Section 203 remains a vital tool to ensure that those who are
unable to avail themselves of adequate educational assistance
continue to be able to vote without discrimination.
---------------------------------------------------------------------------
\121\ See Landreth and Smith, Voting Rights Act Reauthorization
2007: Alaska Report, March 2006, at 27.
\122\ Id.(citing No. 3AN-97-3782 CIV, Order granting plaintiffs'
motion for partial summary judgment on facilities funding, Sept. 1,
1999.).
\123\ Id.
---------------------------------------------------------------------------
Other examples of unequal educational opportunities
received by the Committee reveals that Asian American and
Hispanic children in California have lower rates of educational
attainment than white students. In particular, the Committee
found that ``nineteen percent of Asian Americans have less than
a high school degree, compared with 10 percent of the white
population.'' \124\ The Committee was informed that 1.6 million
language minority students in California are considered to be
English language learners, and that a significant portion of
these students have trouble maintaining similar levels of
academic achievement as their English proficient
counterparts.\125\ Moreover, testimony reveals that language
minority students, and English learners in particular, were the
first to be adversely affected by decisions made by States and
local school boards. These decisions have forced English
language learners to seek protection from Federal courts to
prevent such disparate treatment.\126\ Since 1975, 24
discrimination lawsuits have been filed on behalf of English
language learners in 15 States, 14 of which have been filed in
jurisdictions that are covered by the language assistance
provisions.\127\ Since 1992, ten lawsuits have been filed, with
cases pending in three States that are covered statewide under
Section 4(f)4 of the Act, Texas, Alaska, Arizona, and Florida
and in other States with large language minority populations,
including California and New York.\128\
---------------------------------------------------------------------------
\124\ Letter from Stewart Kohl, President and Executive Director,
The Asian Pacific American Legal Center of Southern California, to The
Honorable Steve Chabot, Chairman, Subcommittee on the Constitution
(November 16, 2005).
\125\ Id.
\126\ Id.
\127\ See Legislative Hearing on H.R. 9, Voting Rights Act
Reauthorization and Amendments Act of 2006 (Part II), Subcommittee on
the Constitution, Committee on the Judiciary, 109th Cong. 2 (May 4,
2006)(statement of Dr. James Thomas Tucker, Voting Rights Consultant
for the National Association of Latino Elected and appointed Officials
(NALEO) Educational Fund).
\128\ Id.; see also Kasayulie v. State of Alaska, Case No. 3AN-97-
3782-CIV (Alaska Superior Ct. 1999); Flores v. State of Arizona, 405 F.
Supp.2d 1112 (D. Ariz. 2005) (contempt order); CHE v. Denver Public
Schools, a 1983 case resolved by consent decree after the United States
Department of Justice intervened in 1999, 1999 WL 33300905; League of
United Latin American Citizens et al. v. Florida Board of Education,
Case No. 90-1913-Civ.-Scott (S.D. Fla. 1990) (consent decree) and Case
No. 90-1913-Civ.-Moreno (S.D. Fla. 2003) (amending consent decree);
Bilingual Master Parents Advisory Council v. Boston School Committee,
2002 WL 992541 (Mass. Super. Ct. May 15, 2002); United States v. City
of Yonkers, 123 F. Supp.2d 694 (S.D.N.Y. 2000); Y.S. v. School District
of Philadelphia, Case No. 85-6924 (E.D. Pa. 1986) (consent decree
continued by stipulation in 2001). In addition, requests for relief are
pending in other states where findings of educational discrimination
have already been made, including Texas. United States v. State of
Texas, 6:71-CV-5281 (E.D. Tex. 2006) (pending motion for further relief
for alleged violations of consent decree).
---------------------------------------------------------------------------
The problems faced by citizens who are limited-English
proficient, linguistically isolated, and who face limited
educational opportunities, impairing their ability to
understand the electoral process, are exacerbated by the
failure of jurisdictions to comply with Section 203. The
Committee received substantial testimony revealing that more
than half of the 505 jurisdictions covered by Section 203 were
not in full compliance, providing some form of written or oral
assistance, but not both; in many instances there was no
compliance at all. For example, the Committee received
testimony from Latino and Hispanic organizations that ``during
the 2004 election in Pima County, Arizona, Latino LEP voters
were denied equal access to voting due to the lack of
sufficient bilingual ballots. Consequently, Latino voters were
relegated to crowd around one translated, poster-sized board of
more than a dozen initiatives that were on the ballot. At dusk,
even this inadequate attempt to comply with Section 203
completely failed, given that the poster board was illegible
due to the lack of lighting around it.'' \129\ Similar examples
were reported by language minority voters from covered
jurisdictions across the country, including New Mexico, New
Jersey, Massachusetts, New York, Alaska, Texas, California, and
South Dakota. In some cases, the Committee was informed that
jurisdictions covered by Section 203 reported not providing any
assistance. The increased number of Section 203 enforcement
actions undertaken by DOJ, have allowed a growing number of
linguistically challenged minorities to participate in the
voting process.
---------------------------------------------------------------------------
\129\ See Statement from Angela M. Arboleda, National Council of La
Raza, to the Honorable Steve Chabot, Chairman, Subcommittee on the
Constitution, (November 22, 2005).
---------------------------------------------------------------------------
Relatedly, the Committee received testimony that the number
of enforcement actions undertaken by the Department of Justice
to ensure compliance has increased over the last several years.
For example, the Department of Justice reported an increase in
the number of Section 203 enforcement actions since 2000.
Enforcement cases such as the action taken in Osceola County,
Florida, where the Department of Justice filed suit to remedy
the ``widespread violation of minority voting rights, including
poll workers making hostile remarks to Spanish-speaking voters
to discourage them from voting, the failure of poll officials
to communicate effectively with Spanish-speaking voters,
failure to staff polling places with bilingual poll officials,
and failure to translate ballots and other election materials
in Spanish,'' have been critical to protecting language
minority voters.\130\
---------------------------------------------------------------------------
\130\ See JoNel Newman, Unfinished Business: The Case For
Continuing Special Voting Rights Act Coverage in Florida (March 8,
2006) (citing Complaint, United States v. Osceola County, Civil Action
No. 6:02-CV-738-ORL-22JGG (M.D. Fla. 2002)).
---------------------------------------------------------------------------
Section 2 Litigation
While not the focus of its examination, the Committee notes
the importance of Section 2 in protecting minority voters.
Moreover, the Committee finds the continued need for Section 2
to protect the rights of racial and language minority groups in
jurisdictions covered by the temporary provisions of the VRA,
such as Georgia, Mississippi, South Carolina, Louisiana, and
South Dakota, significant. In many of the jurisdictions covered
by the Sections 4 through 9 of the Voting Rights Act, the
initial gains made by minority voters were the result of
Section 2 enforcement, as was the case in Citizens for a Better
Gretna v. City of Gretna, which the Committee finds to be
illustrative of the important role Section 2 plays.\131\
---------------------------------------------------------------------------
\131\ See Citizens for a Better Gretna v. Gretna, 636 F.Supp.1113,
1118 (E.D. La. 1986).
---------------------------------------------------------------------------
In Gretna, African American voters brought an action under
the VRA challenging the city's at-large aldermanic elections.
Plaintiffs presented evidence, which the court found ``cogent[]
and convincing[],'' that African Americans were excluded from
the Miller-White Ticket, and by extension meaningful
participation in the political process in Gretna.
The city had an at-large voting system for its Board of
Alderman, as well as a majority vote requirement. No African
American had ever been elected to the board, despite the fact
that African Americans constituted 28% of the city's
population. The district court found the election system
violated the VRA and the city appealed. The Fifth Circuit
upheld the lower court decision, finding that at-large
aldermanic elections violated Section 2 of the VRA. The court
also observed that:

[t]he history of black citizens' attempts, in Louisiana
since Reconstruction, to participate effectively in the
political process and the white majority's resistance
to those efforts is one characterized by both de jure
and de facto discrimination. Indeed, it would take a
multi-volume[] treatise to properly describe the
persistent, and often violent, intimidation visited by
white citizens upon black efforts to participate in
Louisiana's political process.\132\
---------------------------------------------------------------------------
\132\ Id.

In other reports presented to the Committee, it was shown
that of all the successful litigation undertaken in the last 25
years pursuant to Section 2, more than half of the cases were
filed in covered jurisdictions, which contain less than 39
percent of the country's total population.\133\ It was further
reported to the Committee that African American plaintiffs
filed and won the largest number of suits under Section 2, with
Latino citizens close behind.\134\ The Committee finds that
results achieved in Section 2 cases, such as in Gretna and
other litigation, must be protected. Section 5, and the other
temporary provisions have been and continue to be a shield that
prevents backsliding from the gains previously won.
---------------------------------------------------------------------------
\133\ See Ellen Katz, Documenting Discrimination in Voting:
Judicial Findings Under Section 2 of the Voting Rights Act Since 1982
(December 2005).
\134\ Id.
---------------------------------------------------------------------------
The Need to Extend the Temporary Provisions--Exceptional Conditions
Continue to Exist in 2006
The Committee's findings of continued efforts to
discriminate against minority citizens in voting demonstrate
that despite substantial improvements, there is a demonstrated
and continuing need to reauthorize the temporary
provisions.\135\ In reauthorizing the temporary provisions for
an additional 25 years, the Committee is aware that it is again
acting under its broadest power--to remedy continued
discrimination.\136\ However, the record reveals that without
the remedies available from the VRA's temporary provisions, the
injury to minority citizens and their right to the electoral
franchise will be significant.
---------------------------------------------------------------------------
\135\ See South Carolina v. Katzenbach, 383 U.S. 301 (1966).
\136\ See U.S. Const. amend. XIV, Sec. 5 and amend. XV, Sec. 2.
---------------------------------------------------------------------------
The Remedial Power of Congress
Congress acts pursuant to its broadest powers when
remedying discrimination. When the Supreme Court first upheld
the provisions of the VRA, the temporary provisions that will
expire at the end of 2007, it stated that Congress has the
power to address voting discrimination broadly. In South
Carolina v. Katzenbach, 383 U.S. 301 (1966), the Court stated
that ``Congress assumed the power to prescribe these remedies
from Sec. 2 of the 15th amendment, which authorizes the
National Legislature to effectuate by `appropriate' measures
the constitutional prohibition against racial discrimination in
voting. We hold that the sections of the Act which are properly
before us are an appropriate means for carrying out Congress'
constitutional responsibilities and are consonant with all
other provisions of the Constitution.'' \137\
---------------------------------------------------------------------------
\137\ See South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966)
(holding that provisions of Voting Rights Act of 1965 pertaining to
review of proposed alteration of voting qualifications and procedures
were appropriate means for carrying out Congress' constitutional
responsibilities under the 15th amendment and were consonant with all
other provisions of the Constitution).
---------------------------------------------------------------------------
In describing the expansiveness of Congress's power to
address voting discrimination, the Supreme Court held that
Congress's power extends to the outer-most limits of the
Necessary and Proper Clause, stating:

The basic test to be applied in a case involving Sec. 2
of the 15th amendment is the same as in all cases
concerning the express powers of Congress with relation
to the reserved powers of the States. Chief Justice
Marshall laid down the classic formulation, 50 years
before the 15th amendment was ratified: ``Let the end
be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate,
which are plainly adapted to that end, which are not
prohibited, but consistent with the letter and spirit
of the Constitution, are constitutional.'' The Court
has subsequently echoed his language in describing each
of the Civil War Amendments: ``Whatever legislation is
appropriate, that is, adapted to carry out the objects
the amendments have in view, whatever tends to enforce
submission to the prohibitions they contain, and to
secure to all persons the enjoyment of perfect equality
of civil rights and the equal protection of the laws
against State denial or invasion, if not prohibited, is
brought within the domain of congressional power.\138\
---------------------------------------------------------------------------
\138\ See South Carolina v. Katzenbach, 383 U.S. 301, 326-27 (1966)
(citations omitted).

The Court stated that ``The language and purpose of the
Fifteenth Amendment, the prior decisions construing its several
provisions, and the general doctrines of constitutional
interpretation, all point to one fundamental principle. As
against the reserved powers of the States, Congress may use any
rational means to effectuate the constitutional prohibition of
racial discrimination in voting . . . Sec. 2 of the Fifteenth
Amendment expressly declares that `Congress shall have power to
enforce this article by appropriate legislation.' By adding
this authorization, the Framers indicated that Congress was to
be chiefly responsible for implementing the rights created in
Sec. 1. . . . Accordingly, in addition to the courts, Congress
has full remedial powers to effectuate the constitutional
prohibition against racial discrimination in voting.'' \139\
The Court added that ``Legislation need not deal with all
phases of a problem in the same way, so long as the
distinctions drawn have some basis in practical experience.''
\140\
---------------------------------------------------------------------------
\139\ See Id. at 325-27 (emphasis added).
\140\ See Id. at 331 (emphasis added).
---------------------------------------------------------------------------
City of Boerne v. Flores
While a ``congruence and proportionality'' test was
announced in City of Boerne v. Flores,\141\ and applied to
Congressional actions taken under the 14th amendment, the Court
highlighted the broad authorization the 15th amendment confers
upon Congress.\142\ It stated in Boerne that ``[L]egislation
which deters or remedies constitutional violations can fall
within the sweep of Congress' enforcement power even if in the
process it prohibits conduct which is not itself
unconstitutional and intrudes into legislative spheres of
autonomy previously reserved to the States. For example, the
Court upheld a suspension of literacy tests and similar voting
requirements under Congress' parallel power to enforce the
provisions of the 15th amendment as a measure to combat racial
discrimination in voting despite the facial constitutionality
of the tests . . .'' \143\ The Court in Boerne stated
approvingly that ``to ensure that the reach of the Voting
Rights Act was limited to those cases in which constitutional
violations were most likely (in order to reduce the possibility
of over breadth), the coverage under the Act would terminate at
the behest of States and political subdivisions in which the
danger of substantial voting discrimination has not
materialized during the preceding 5 years.'' \144\ H.R. 9
preserves those same provisions that allow States and political
subdivisions to escape coverage by showing the danger of
substantial voting discrimination has not materialized during
the preceding (now ten) years.
---------------------------------------------------------------------------
\141\ 521 U.S. 507, 530 (1997) (``While preventive rules are
sometimes appropriate remedial measures, there must be a congruence
between the means used and the ends to be achieved.'').
\142\ City of Boerne (struck down the Religious Freedom Restoration
Act as beyond Congress's power under the enforcement clause of the 14th
amendment, it did so on the grounds that the Act, if enforced, would
change the meaning of the Free Exercise Clause.). Id. at 519. Certainly
any extension of the VRA could not reasonably be described as altering
the meaning of the 15th amendment's prohibition on the denial of the
right to vote on the basis of race. The Court also made clear in Boerne
that it was not suggesting that ``Sec. 5 legislation requires
termination dates, geographic restrictions, or egregious predicates.''
Id. at 533.
\143\ Id.
\144\ Id. at 533 (quotations and citations omitted).
---------------------------------------------------------------------------
Subsequent cases have held that Congress's authority to
address voting discrimination extends to the creation of
remedies that prohibit not only purposeful discrimination, but
also discriminatory effects,\145\ and Congress's authority to
do so will only be tested under a rational basis standard. In
the City of Rome v. United States,\146\ the Court held ``that
the Act's ban on electoral changes that are discriminatory in
effect is an appropriate method of promoting the purposes of
the Fifteenth Amendment, even if it is assumed that Sec. 1 of
the Amendment prohibits only intentional discrimination in
voting. Congress could rationally have concluded that, because
electoral changes by jurisdictions with a demonstrable history
of intentional racial discrimination in voting create the risk
of purposeful discrimination, it was proper to prohibit changes
that have a discriminatory impact.'' \147\ In that case, the
Court also stated ``Congress passed the Act under the authority
accorded it by the Fifteenth Amendment. We hold that, even if
Sec. 1 of the Amendment prohibits only purposeful
discrimination, the prior decisions of this Court foreclose any
argument that Congress may not, pursuant to Sec. 2, outlaw
voting practices that are discriminatory in effect . . .
Congress may, under the authority of Sec. 2 of the Fifteenth
Amendment, prohibit state action that, though in itself not
violative of Sec. 1, perpetuates the effects of past
discrimination.'' \148\ In its first decision addressing the
VRA after City of Rome and City of Boerne, the Supreme Court
upheld Congress's authority to remedy racial discrimination in
voting. In Lopez v. Monterey County, the Court reaffirmed
``Congress's . . . constitutional authority to designate
covered jurisdictions and to guard against changes that give
rise to a discriminatory effect in those jurisdictions . . .
Section 5, as we interpret it today, burdens State law only to
the extent that the law affects voting in jurisdictions
properly designated for coverage.'' \149\
---------------------------------------------------------------------------
\145\ See City of Rome v. United States, 446 U.S. 156, 173, 176
(1980). See also Tennessee v. Lane, 541 U.S. 509, 520 (2004) (``When
Congress seeks to remedy or prevent unconstitutional discrimination,
Sec. 5 [of the Fourteenth Amendment] authorizes it to enact
prophylactic legislation proscribing practices that are discriminatory
in effect, if not in intent, to carry out the basic objectives of the
Equal Protection Clause.'')
\146\ 466 U.S. 156, 177 (1980) (emphasis added).
\147\ Id.
\148\ Id. at 176.
\149\ See 525 U.S.266, 283 (1999).
---------------------------------------------------------------------------
Record of Continued Efforts to Discriminate in Covered Jurisdictions
The record before the Committee reveals that extending the
VRA's temporary provisions is necessary to protect racial and
language minority citizens located in covered jurisdictions
from discrimination. As a result, the gains achieved by
minority voters over the last 40 years are vulnerable without
the protections afforded by the temporary provisions. It is in
light of this reality that the Committee concludes that the
temporary provisions of the VRA must be reauthorized, including
Section 4(a)(8) and the provisions it triggers, as well as
Section 203, for an additional 25 years.
Indeed, in reauthorizing the temporary provisions for an
additional 25 years, the Committee looks to related Supreme
Court decisions, such as Tennessee v. Lane, to address
constitutional concerns about continued reauthorizations of the
VRA. In Tennessee v. Lane, the Court noted that ``The unequal
treatment of disabled persons in the administration of judicial
services has a long history, and has persisted despite several
legislative efforts to remedy the problem of disability
discrimination.'' \150\ Similar circumstances are true of the
VRA: despite previous reauthorizations, the problem of voting
discrimination justified reauthorization. In light of the
considerable record before it, the Committee has a duty to
maintain the protections afforded by the temporary provisions
by reauthorizing these vital provisions.
---------------------------------------------------------------------------
\150\ Tennessee v. Lane, 541 U.S. 509, 531 (2004).
---------------------------------------------------------------------------
Reauthorizing Section 4(a)(8)
Forty years has been an insufficient amount of time to
address the century during which racial minorities were denied
the full rights of citizenship. While substantial strides have
been made toward racial equality, the attitudes and actions of
some States and political subdivisions continue to fall short.
Progress has been made by minority voters, some of which has
been significant. However, the Committee's record demonstrates
the importance of reauthorizing the VRA's vital provisions.
The Committee believes that if not for the temporary
provisions of the VRA the gains made by minorities would not
have been made. But as Congress found in 1982, the gains are
fragile.\151\ The Committee is not willing to jeopardize 40
years of progress made by minority citizens by allowing the
temporary provisions to expire, especially in the face of the
evidence of discrimination compiled in the record.
---------------------------------------------------------------------------
\151\ See H.R Rep. No. 97-227, at 7 (1982).
---------------------------------------------------------------------------
Indeed, the substantial volume of evidence warranting H.R.
9 compiled by the House Judiciary Committee's Subcommittee on
the Constitution far exceeds the quantum of evidence found
adequate in other contexts (in which Congress's power is less
broad) to justify Congressional action to remedy
discrimination. As characterized by the Supreme Court in
Tennessee v. Lane, the Supreme Court in Neveda Department of
Resources v. Hibbs relied on only the following sources in
holding that Congress under the 14th amendment had the power to
enact the Family and Medical Leave Act, which prophylactically
sought to prevent gender discrimination in the provision of
work leave:

Specifically, we relied on (1) a Senate Report citation
to a Bureau of Labor Statistics survey revealing
disparities in private-sector provision of parenting
leave to men and women; (2) submissions from two
sources at a hearing on the Parental and Medical Leave
Act of 1986, a predecessor bill to the FMLA, that
public-sector parental leave polices ``diffe[r]
little'' from private-sector policies; (3) evidence
that 15 States provided women up to 1 year of extended
maternity leave, while only 4 States provided for
similarly extended paternity leave; and (4) a House
Report's quotation of a study that found that failure
to implement uniform standards for parenting leave
would ``leav[e] Federal employees open to discretionary
and possibly unequal treatment.'' \152\
---------------------------------------------------------------------------
\152\ Tennessee v. Lane, 541 U.S. 509, 529 n.17 (2004) (citing
Nevada Department of Human Resources v. Hibbs, 538 U.S. 721, 728-33
(2003)) (holding that Congress under the 14th amendment had the power
to enact the Family and Medical Leave Act, which prophylactically
sought to prevent gender discrimination in the provision of work
leave.).

Indeed, the Committee believes that a failure to
reauthorize the temporary provisions, given the record
established, would leave minority citizens with the inadequate
remedy of a Section 2 action. The Committee knows from history
that case-by-case enforcement alone is not enough to combat the
efforts of certain States and jurisdictions to discriminate
against minority citizens in the electoral process. Moreover,
the Committee finds that Section 2 would be ineffective to
protect the rights of minority voters, especially in light of
the increased activity under Sections 5 and 8 over the last 25
years. It is against this backdrop that the Committee finds it
necessary to extend the temporary provisions for an additional
25 years.
In upholding the 1975 VRA extension, the Supreme Court
noted that a 7-year extension was ``plainly constitutional'' in
light of the 95-year period of pervasive discrimination it was
attempting to remedy.\153\ Thus, despite the fact that another
25 years will have passed in 2007 since the 1982 VRA extension,
another 25 years of remedial measures (for a total of 67 years
of remedial measures under the VRA until 2032) remains
appropriate given the near century of discrimination the Act is
designed to combat.
---------------------------------------------------------------------------
\153\ City of Rome v. United States, 446 U.S. 156, 182 (1980) (``In
adopting the Voting Rights Act, Congress sought to remedy [the
previous] century of obstruction by shifting `the advantage of time and
inertia from the perpetrators of the evil to its victims.' Ten years
later, Congress found that a 7-year extension of the Act was necessary
to preserve the `limited and fragile' achievements of the Act and to
promote further amelioration of voting discrimination. When viewed in
this light, Congress' considered determination that at least another 7
years of statutory remedies were necessary to counter the perpetuation
of 95 years of pervasive voting discrimination is both unsurprising and
unassailable. The extension of the Act, then, was plainly a
constitutional method of enforcing the Fifteenth Amendment.'')
(emphasis added) (citations omitted).
---------------------------------------------------------------------------
In 1982, Congress amended the bailout provision to
encourage covered jurisdictions to work to end discriminatory
conduct and to accept and include minority citizens into the
electoral process. To date, 11 counties from the covered State
of Virginia have utilized the bailout process. The Committee is
disappointed that more States have not taken advantage of this
liberalized process and finds it telling of the commitment by
some of the covered jurisdictions to end discriminatory
practices. The Committee reiterates that termination of covered
status has been and continues to be within the reach of
compliant covered jurisdictions and hopes that more covered
States and political subdivisions will take advantage of the
process.\154\
---------------------------------------------------------------------------
\154\ Voting Rights Act: An Examination of the Scope and Criteria
for Coverage Under the Special Provision sof the Act Before the H.
Comm. on the Judiciary. 109th Cong. 104 (2005) (statement of Gerald
Hebert, former Acting Chief, Civil Rights Division, United States
Department of Justice, describing the bailout process since 1982 as
``just the right stuff. They go exactly to the issues that Congress was
concerned about when it enacted the Voting Rights Act in the first
place . . . I think they're perfectly tailored to meet the nature and
extent of the violation, which is exactly what the Supreme Court has
said repeatedly in this area.'')
---------------------------------------------------------------------------
Reauthorizing Section 203
In reauthorizing Section 203 for an additional 25 years,
the Committee finds that language minorities have made
progress, but continue to experience barriers to and within the
electoral process. The Committee specifically reaffirms the
findings in Section 203(a), which provides:

The Congress finds that, through the use of various
practices and procedures, citizens of language
minorities have been effectively excluded from
participation in the electoral process. Among other
factors, the denial of the right to vote of such
minority group citizens is ordinarily related to the
unequal educational opportunities afforded them,
resulting in high illiteracy and low voting
participation.

The Committee received a substantial record of documented
discrimination in voting and education that supports
maintaining the protections in Section 4(f) and Section 203 of
the Voting Rights Act for the four covered language groups,
Alaska Natives, Native Americans, Asian Americans, and citizens
of Hispanic origin.
Congress found that there is a positive correlation between
the bilingual assistance provisions and increased voter
registration levels in jurisdictions fully complying with
Section 203. At the same time, a significant number of
jurisdictions have yet to fully comply with Section 203's
obligations, which has had the effect of keeping citizens from
experiencing full participation in the electoral process.
The Committee notes the desire of many to see our citizens
with limited English skills speak and understand English
proficiently. The Committee agrees that this should be a goal
all citizens of the United States should aspire to achieve. The
English language has been and continues to be a great unifying
force. The Committee believes that all newly arrived citizens
and those who are native born should strive to learn English in
order to fully embrace all that this Nation has to offer.
However, the Committee notes that significant population
increases have occurred among language minority groups over the
last several decades, such as citizens of Hispanic origin who
now are the largest minority population in the country and
Asian Americans, who have also witnessed large population
increases. It has been these newly arrived citizens, as well as
subsequent generations, who have suffered most from the
inability to speak English and who have lacked the resources
and support to learn English proficiently.
The continued need for bilingual support is reflected by:
(1) the increased number of linguistically isolated households,
particularly among Hispanic and Asian American communities; (2)
the increased number of language minority students who are
considered to be English language learners, such that students
do not speak English well enough to understand the required
curriculum and require supplemental classes; (3) the continued
disparity in educational opportunities as demonstrated by the
disparate impact that budget shortfalls have on language
minority citizens, and the continued need for litigation to
protect English language learners; and (4) the lack of
available literacy centers and English as a Second Language
programs. In reauthorizing Section 203, the Committee continues
to believe in exercising the right to vote, language minority
citizens should have the substantive right to understand the
voting process and make informed decisions from start to
finish, including how to register to vote, where to vote, and
what issues and candidates are contained on the ballot.
However, language assistance that facilitates equal
participation in the voting process so language minority
citizens are able to cast effective ballots does not require
private citizens to make privately prepared and distributed
materials available in the covered languages. In recognizing
the exclusion of petitions that are initiated and distributed
by private citizens from Section 203's requirements, the
Committee restates its position that Section 203 is intended to
remedy the ``denial of the right to vote of such minority group
citizens . . . [that is] directly related to the unequal
educational opportunities afforded them, resulting in high
illiteracy and low voting participation.'' \155\ To impose
Section 203's requirements on private citizens whose actions
are outside governmentally administered voting systems would
have the effect of penalizing private citizens for injuries
caused by States. Section 203's assistance is a remedy for the
past and present failures of States and jurisdictions to remedy
educational disparities, putting language minority citizens on
an equal footing in exercising the right to vote.
---------------------------------------------------------------------------
\155\ See Section 203 (a).
---------------------------------------------------------------------------
As early as 1923, the Supreme Court found, in Meyers v.
Nebraska, that:

Certain fundamental rights [are guaranteed] to all
those who speak other languages as well as to those
born with English on the tongue. Perhaps it would be
advantageous if all had ready understanding of our
ordinary speech, but this cannot be coerced by methods
which conflict with the Constitution--a desirable end
cannot be promoted by prohibited means.\156\
---------------------------------------------------------------------------
\156\ See H.R. Rep. No. 97-227 (1982) (citing, Meyers v. Nebraska,
262 U.S.390, 401 (1923)).

In 1966, the Supreme Court upheld Section 4(e) of the VRA,
finding that Congress was within its authority to ``question
whether denial of a right so precious and fundamental in our
society [the right to vote] was a necessary and or appropriate
means of encouraging persons to learn English or of furthering
the goal of an intelligent exercise of the franchise.'' \157\
In 1969, the Supreme Court further confirmed the impact that
literacy tests had on citizens who were subjected to inferior
educational opportunities, finding ``that it is only reasonable
to infer that among black children compelled to endure a
segregated and inferior education, fewer will achieve any given
degree of literacy than will their better-educated white
contemporaries.'' \158\
---------------------------------------------------------------------------
\157\ See Katzenbach v. Morgan, 384 U.S. 641, 654 (1966).
\158\ See Gaston County, North Carolina v. United States, 395 U.S.
285, 295 (1969).
---------------------------------------------------------------------------
It was on these bases that, in 1975, Congress expanded the
protections of the VRA to ensure that all citizens have the
opportunity to participate in the electoral process. In
authorizing Sections 4(f) and 203, Congress did not want
language to be a barrier to exercising the most fundamental
right in our system of government, a right which had been
historically compromised by the deliberate barriers erected by
the administration of English-only elections, barriers that
were exacerbated by the unequal educational opportunities that
existed and continue to exist.
Thirty years later, the Committee finds that our Nation's
educational system has improved. However, disparities in
education continue to exist, resulting in the disparate
treatment of language minority citizens and students. The
evidence reveals that English language learner students must
rely almost exclusively on the judicial system to protect their
rights to equal educational opportunities. Since 1992, at least
10 successful cases have been filed, with litigation and
consent decrees pending in the three States that are covered
statewide under Section 4(f)4 of the Act, Texas, Alaska,
Arizona, and Florida and in other States with large language
minority populations, including California and New York.
Testimony also revealed that adult citizens are impacted in
their ability to learn English by the lack of literacy centers
and lack of funding devoted to increasing the number of centers
to accommodate the demonstrated need. The lack of funding to
expand the number of ESL centers around the country leaves
minority citizens unable to enroll in classes for several
years, increasing the need for assistance while they wait.\159\
The Committee also notes the time it takes for citizens to
learn English. Native English speaking citizens have an
advantage over naturalized citizens. For non-Native English
speakers, learning English takes several years to even obtain a
fundamental understanding of the English language--certainly
not enough to understand complex ballots that native English
speaking citizens often do not understand. Citizens should not
be penalized for trying to learn English and exercising their
right to vote. Section 4(f) and 203 level the playing field for
language minority citizens, ensuring that the most fundamental
right of all citizens is preserved regardless of one's ability
to speak English well.
---------------------------------------------------------------------------
\159\ See Legislative Hearing on H.R. 9, Voting Rights Act
Reauthorization and Amendments Act of 2006 (Part II), Subcommittee on
the Constitution, Committee on the Judiciary, 109th Cong. 2 (May 4,
2006)(statement of Dr. James Thomas Tucker, Voting Rights Consultant
for the National Association of Latino Elected and appointed Officials
(NALEO) Educational Fund).
---------------------------------------------------------------------------
The Committee notes the concerns of many that the
Department of Justice's enforcement of Section 203's
requirements is inconsistent with the spirit of Section 203.
The Committee is concerned about the Department's
disproportionate reliance on sur-name analyses. These actions
are not consistent with the spirit and intent of Section 203.
The Committee cautions the Department in reliance on such
analyses and encourages the Department to work more closely
with the minority community to determine the level of
assistance necessary rather than making assumptions based on
last name alone. The Committee intends to monitor the
Department closely in its administration and enforcement of
Section 203 to ensure that the Department is not imposing
requirements on jurisdictions not mandated by Section 203.
The Need to Update and Clarify Certain Temporary and Permanent
Provisions to Strengthen Protections and Enforcement Mechanisms
(Section 3(a), 4, 5, 6, 7, 8, 13, 14, and 203)
In reauthorizing the temporary provisions for an additional
25 years, the Committee recognizes that the electoral
environment has evolved since 1965. Certain barriers to voting
that were pervasive in 1965 no longer exist. However, those
barriers to voting have been replaced with new ones, such that
other temporary provisions continue to be necessary. The record
reveals that over the last 40 years, and in the last 25 years
in particular, Section 5's preclearance requirement and Section
8's Federal observer program have been vital tools to
protecting minority voters. Bailout, available through Section
4(a), while for the most part has gone unused until recently,
has proven to be achievable to those jurisdictions that can
demonstrate an end to their discriminatory histories. At the
same time, the record reveals that Section 6, the Federal
examiner program, has not been used in twenty years, suggesting
to the Committee that examiners have successfully served their
purpose. Recognizing these realities, the Committee amended and
eliminated certain provisions to ensure that the VRA remains a
relevant and an effective remedy to the continued problems of
discrimination in the 21st century.
Sections 6, 7, and 9
In weighing whether to reauthorize the Federal examiner
program, the Committee looked to voting rights experts, and
representatives from the Department of Justice and the Office
of Personnel Management who have worked with and supported the
Federal examiner program over the last several decades.
Testimony received by the Committee revealed that the Federal
examiner provisions were ``cumbersome'' and ``archaic,'' and
their functions were considered to be ``outdated.'' \160\ In
essence, it was reported that Federal examiners were ``not
needed anymore.'' \161\ H.R. 9 reflects the lack of necessity
and contains language to address this shift.
---------------------------------------------------------------------------
\160\ See Oversight Hearing, The Voting Rights Act: Sections 6 and
8--The Federal Examiner and Observer Program, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 15,
2005) (statement of Barry J. Weinberg, former Deputy Chief and Acting
Chief, Voting Section, Civil Rights Division, U.S. Department of
Justice).
\161\ Id.
---------------------------------------------------------------------------
In authorizing the Federal examiner provision, Congress
sought to remedy the immediate barriers faced by minority
citizens, mainly barriers to registration. Federal examiners
were charged with ensuring that those citizens who were
eligible to vote and who wanted to vote were able to register.
To facilitate the process, Congress specifically authorized the
procedures that examiners were to follow when listing a voter
on Federal registration rolls. Moreover, Congress authorized a
process under which those citizens who wanted to challenge the
eligibility of a listed voter could do so. The positive impact
that Sections 6, 7, and 9 have had on minority voters is
reflected in the more than 100,000 citizens who were registered
through Section 6.
However, over the years, the need for Federal examiners to
register eligible voters has declined. The decreased need for
examiners can be attributed to the success of the other
temporary provisions, as well as to the enactment of more
recent Federal laws encouraging and supporting voter
registration. In 1993, Congress enacted the National Voter
Registration Act of 1993 (NVRA) to make voter registration more
accessible to citizens who wanted to vote. Under the NVRA,
States are required to make registration materials available at
all driver's license offices, public benefits offices, and
other social service agencies. States are also required to
maintain voter registration lists for Federal elections in
accordance with standards set out by the NVRA. In addition to
the NVRA, Congress enacted the Help America Vote Act of 2002
(HAVA), which serves to assist States in improving the
administration of elections. HAVA provides States with funding
to improve voting technology and also requires States to meet
minimum standards with regard to updating voting equipment,
administering provisional balloting, and maintaining one
centrally located Statewide voter registration list. The
success of these laws is reflected in the increased number of
minority citizens who are registered to vote. The fact that
examiners have not contributed to these increases in the last
20 years suggests to the Committee that examiners have outlived
their usefulness.
Section 8
Notwithstanding the elimination of the Federal examiner
program, the Committee found a substantial need to continue the
program assigning Federal observers on election day. As the
only Federal officials authorized to enter polling locations,
Federal observers continue to serve a vital enforcement
function. The Committee found that the mere presence of Federal
officials has worked to deter discriminatory conduct. In other
cases, observations and reports of observers that most often
provide the factual basis on which the Department of Justice
proceeds to prosecute acts of harassment, intimidation, and
discrimination engaged in by election officials. In
reauthorizing the Federal observer program, the Committee is
aware that, historically, observers have been assigned to
covered jurisdictions only after a jurisdiction has been
certified by the Attorney General, or a Federal court, for the
use of examiners. However, since examiners have gone unused
over the last twenty years, the Committee believes that
minority voters will be better served by authorizing the
Attorney General to directly certify jurisdictions for the use
of Federal observers. In amending Section 8, the Committee
authorizes the Attorney General to continue to coordinate with
the Office of Personnel Management (OPM) to send observers to a
covered jurisdiction once the Attorney General determines that
there is a reasonable belief that a violation of the 14th or
15th amendment has occurred or will occur. The Committee also
amended Section 8 by rendering the assignment of Federal
observers by OPM mandatory upon request by the Attorney General
following the required certification. In authorizing the
Attorney General to certify jurisdictions for the use of
Federal observers in the future, it is not the intent of this
Committee to affect jurisdictions that have already been
certified for examiners. Federal observers should continue to
be assigned to these jurisdictions when there is a reasonable
belief that voting violations will occur. The traditional
functions of the Federal observers remain unchanged by the
Committee. Federal observers shall continue to observe whether
persons who are entitled to vote are permitted to do so and
whether such votes cast are properly tabulated. Because of the
elimination of examiners, observers shall report their
observations directly to the Attorney General or, if assigned
pursuant to Section 3(a), to the court.
Section 13
The Committee will continue to make the same termination
process available to those jurisdictions currently certified
for the assignment of Federal examiners to those that will be
certified for Federal observers in the future under Section 8.
In assessing whether to terminate Federal examiner or observer
certification, the Attorney General or the court shall continue
to have the authority to make such determinations upon
petitions by the covered jurisdiction.
Section 3(a), Section 4(a) and (b)
In striking Section 6, the Committee was required to make
several conforming changes. Those changes are reflected in
Section 3(a), in which the Committee replaced the authority of
the Federal courts to assign Federal examiners with the
authority to assign Federal observers pursuant to Section 8. In
Section 4(a), the Committee added the requirement that ``no
observers have been assigned to a jurisdiction'' to the
existing criteria that a jurisdiction must establish when
applying for bailout. Section 4(b) was amended to reflect that
determinations by the Attorney General with respect to Section
8 are not reviewable by a Federal court, as has been the case
for decisions related to Federal examiners.
Section 203
In reauthorizing Section 203, the Committee was made aware
that the United States Census Bureau has changed its data
collection methods, eliminating the use of the long form
questionnaire. The long form questionnaire was the detailed
document used by the Census Bureau every decade to gather
demographic, housing, and social information and upon which
determinations with respect to Section 203 were made. In its
place, the Census Bureau has been issuing the American
Community Survey (ACS). The ACS is a detailed survey conducted
by the Census Bureau that will be updated on a rolling basis
annually. While issued to a smaller universe of households more
frequently, the survey is designed to reach a greater number of
individuals per decade (because it is issued more frequently),
providing a more detailed look at communities on a more timely
basis. In comparing the relevant questions from the long form
questionnaire with the questions provided on the ACS, the
Committee finds no substantive difference between the two
documents and expects that the ACS will be a suitable
substitute for the outdated long form questionnaire. In
addition to identifying the ACS as the basis upon which the
Director of the Census is required to make Section 203
determinations, the Committee also finds a benefit to reliance
on survey results published on a more timely basis, as it
better reflects our country's rapidly changing makeup, as
opposed to a reliance on results published only every decade.
To reflect this need, Section 203 was also amended to require
the Director of the United States Census to make determinations
every 5 years based on a rolling 5 year average.
Section 14
In amending Section 14 of the VRA to explicitly include the
recovery of expert costs as part of attorneys fees, the
Committee seeks to update the Voting Rights Act of 1965 to
comport with other Federal civil rights laws. Early in 1991,
the Supreme Court held in West Virginia Hospitals, Inc. v.
Casey that ``Fees for services rendered by experts in civil
rights litigation may not be shifted to the losing party as
part of `a reasonable attorneys fee' under Sec. 1988.'' \162\
Later that same year, Congress ``amended the Civil Rights Act
of 1964 to strengthen and improve Federal civil rights laws,''
including providing for the recovery of expert fees as part of
attorneys fees.\163\ In amending the Civil Rights Act of 1964,
Congress specifically ``recognized that evidence from one or
more expert witnesses is critical to trying an employment
discrimination case.'' \164\ The Committee finds the same to be
true in the context of voting discrimination cases pursued
under the relevant provisions of the VRA. The Committee
received substantial testimony indicating that much of the
burden associated with either proving or defending a Section 2
vote dilution claim is established by information that only an
expert can prepare.\165\ In harmonizing the Voting Rights Act
of 1965 with other Federal civil rights laws, the Committee
also seeks to ensure that those minority voters who have been
victimized by continued acts of discrimination are made whole.
---------------------------------------------------------------------------
\162\ See 499 U.S. 83 (1991).
\163\ See Pub. L. No. 102-166 (1991).
\164\ See H.R. Rep. No. 102-40, at 30 (1991).
\165\ See Oversight Hearing on the Voting Rights Act: Judicial
Evolution of the Retrogression Standard, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 9,
2005).
---------------------------------------------------------------------------
Congressional Intent with Regard to Section 5 and Supreme Court
Decisions (South Carolina, Beer, Bossier II, and Georgia v.
Ashcroft)
In addition to updating the temporary provisions of the
VRA, the Committee found that a series of Supreme Court
decisions, beginning in 2000, have significantly weakened
Section 5's effectiveness as a tool to protect minority voters.
These developments sharply conflict with the intent of
Congress. Beginning with the case Reno v. Bossier Parish (II),
which was followed 3 years later by the decision in Georgia v.
Ashcroft, the Supreme Court has interpreted Section 5 to allow
preclearance of voting changes that would have previously drawn
objections. As a matter of statutory construction, the
Committee finds that Congress did not intend for the burden of
proof to be placed on covered jurisdictions to be weakened in
the way that the Supreme Court rulings in these cases
permit.\166\ The decisions have left covered jurisdictions with
discretion under Section 5 to enact and enforce voting changes
that may harm minority voters and limit their ability to elect
their preferred candidates of choice in a manner never intended
by Congress. To ensure that Section 5 remains the vital,
prophylactic tool that Congress intends, certain amendments are
necessary to: (1) restore the original purpose to Section 5
with respect to intentionally discriminatory voting changes;
and (2) clarify the types of conduct that Section 5 was
intended to prevent, including those techniques that diminish
the ability of the minority group to elect their preferred
candidates of choice.
---------------------------------------------------------------------------
\166\ See 528 U.S. 320 (2000) and 539 U.S. 462 (2003),
respectively.
---------------------------------------------------------------------------
Section 5
Section 5 has been and continues to be one of the VRA's
most effective tools. Its strength lies, in part, in its
burden-shifting remedy that requires covered jurisdictions to
prove to the Federal Government or United States District Court
for the District of Columbia that a voting change ``does not
have the purpose and will not have the effect of denying or
abridging the right to vote'' \167\ before such voting change
can be enforced. The two-pronged shield afforded by Section 5
has enabled the Federal Government and court to stay one step
ahead of covered jurisdictions that have a documented history
of denying minorities the protections guaranteed by the
Constitution. By requiring covered jurisdictions to establish
that neither a discriminatory purpose nor effect exists with
respect to a proposed voting change, Section 5 has prevented
those voting changes that have a measurable negative impact on
minorities, as well as voting changes that are enacted with a
racial animus, from being enforced.\168\ The impact of Section
5's two-pronged requirement is reflected in the gains
minorities have achieved and sustained, despite the efforts of
State and local Officials determined to see otherwise.
---------------------------------------------------------------------------
\167\ See Section 5.
\168\ By striking ``does not have the purpose and will not have the
effect'' and inserting in its place, ``neither has the purpose nor will
have the effect,'' Section 5 of H.R. 9 makes clear that both prongs
must be satisfied before a voting change may be precleared.
---------------------------------------------------------------------------
Indeed, by reauthorizing Section 5 unamended on three
separate occasions, Congress recognized the need to preserve
the burdens of proof placed on covered jurisdictions. For
example, the Committee, in 1970, was ``convinced that Section 5
procedures are an integral part of the rights afforded by the
1965 Act'' and that ``[f]ailure to continue this provision of
the Act would jettison a vital element of the enforcement
machinery. It would reverse the burden of proof and restore
time consuming litigation as the principal means of assuring
the equal right to vote.'' \169\ In 1975, Congress reiterated
that Section 5 was needed to ensure that States do not undo or
defeat the rights recently won,'' \170\ and that rights were
not ``destroyed through new procedures and techniques.'' \171\
Congress similarly extended Section 5 for 25 years in 1982. The
Committee finds that the need for the protections of Section 5
in the present covered jurisdictions continues today.
---------------------------------------------------------------------------
\169\ See H.R. Rep. No. 91-397 (1970).
\170\ See Id.
\171\ See S. Rep. No. 94-295 (1975).
---------------------------------------------------------------------------
Discriminatory Purpose
In 2000, the Supreme Court severely limited the reach of
Section 5's ``purpose'' requirement, announcing that ``Section
5 prevents nothing but backsliding,'' such that a jurisdiction
must prove only that its purpose in enacting a voting change is
not retrogressive.\172\ Determining that a redistricting plan
enacted with a discriminatory but non-retrogressive purpose can
be precleared under Section 5, the Court held that to find
otherwise would ``exacerbate the `substantial' federalism costs
that the preclearance procedure already exacts, perhaps to the
extent of raising concerns about Section 5's
constitutionality.'' \173\
---------------------------------------------------------------------------
\172\ See Reno v. Bossier Parish, 528 U.S. 320 (2000).
\173\ Id. at 336 (citing Lopez v. Monterey County, 525 U.S. 266,
282 (1999)).
---------------------------------------------------------------------------
To be sure, Congress intended Section 5 to impinge on
traditional State functions in certain States and
jurisdictions, for a reason. Some of the States and
jurisdictions covered by the temporary provisions of the VRA
have a long and documented history of discriminating against
certain citizens and preventing their exercise of the most
fundamental right in our system of government. Indeed, in
upholding the extraordinary remedy contained in Section 5, the
Supreme Court in South Carolina v. Katzenbach recognized the
long history of discrimination in certain areas of the country
and reiterated its position that ``When a State exercises power
wholly within the domain of a State interest, it is insulated
from Federal review but such insulation is not carried over
when State power is used as an instrument for circumventing a
Federally protected right.'' \174\ In remedying this documented
problem, Congress sought to make Section 5's hurdles
significant, requiring of covered jurisdictions that any and
all voting changes discriminated neither in purpose nor effect
if they are to be precleared.
---------------------------------------------------------------------------
\174\ See 383 U.S. at 325, citing (Gomillion v. Lightfoot, 364 U.S.
at 347).
---------------------------------------------------------------------------
Through the ``purpose'' requirement, Congress sought to
prevent covered jurisdictions from enacting and enforcing
voting changes made with a clear racial animus, regardless of
the measurable impact of such discriminatory changes. The
Committee heard testimony revealing that for more than 30
years, the purpose standard has been unbroken, barring those
plans that were motivated by a discriminatory intent.\175\ The
effectiveness of the ``discriminatory'' purpose requirement in
barring discriminatory voting changes is reflected in the 83
objections that were interposed during the 1980's and in the
151 objections interposed in the 1990's solely on the basis of
discriminatory purpose. Such objections accounted for 25
percent and 43 percent of all objections interposed,
respectively. \176\
---------------------------------------------------------------------------
\175\ See Oversight Hearing on the Voting Rights Act: Section 5--
Preclearance Standards, Subcommittee on the Constitution, Committee on
the Judiciary, 109th Cong. 1 (November 1, 2005). See also, City of
Richmond v. United States, 422 U.S. 358 (1975); Texas v. United States,
802 F. Supp.481 (1992) (stating ``in order to grant preclearance . . .
[the] court must make two findings: plan must not be retrogressive in
terms of minority voting rights when compared to a plan that would be
in effect were plan in question not approved, and discriminatory
purpose may not be a motivating factor in selection of plan''); State
of Mississippi v. United States, 490 F. Supp. 569 (1979) (stating ``For
a state to meet its burden of proof in an action for declaratory relief
under the Voting Rights Act, it must demonstrate that a racially
discriminatory purpose was not among the factors that motivated it in
devising its reapportionment plan.'').
\176\ See McCrary, Seaman, Valelly, ``The End of Preclearance As We
Knew It: How the Supreme Court Transformed Section 5 of the Voting
Rights Act (Feb. 2006) at 37-38.
---------------------------------------------------------------------------
Had the Bossier II standard been in effect in 1982, the
District of Columbia court would have been required to preclear
Georgia's congressional redistricting plan, which was found by
the court to be the product of purposeful discrimination. In
that instance, the State had increased the African American
population in the Fifth District over the benchmark plan, but
kept it as a district with a majority of white registered
voters. The remaining nine congressional districts were all
solidly majority white. As Joe Mack Wilson, the chief architect
of redistricting in the house told his colleagues on numerous
occasions, ``I don't want to draw nigger districts.'' (Busbee
v. Smith, 549 F.Supp. 495, 501 (D.D.C. 1982)). Since the
redrawn Fifth District did not make African American voters
worse off than they had been under the preexisting plan, and
even though it was the product of intentional discrimination,
the purpose was not technically retrogressive and so, under
Bossier II, the plan would have been unobjectionable. Such a
result is inconsistent with the clear purposes of the Voting
Rights Act.
Since Bossier II, the Committee finds that less than 1
percent of the objections that have been interposed have been
on the basis of the purpose prong alone, supporting the
perception that only an ``incompetent retrogressor'' can be
caught and denied preclearance under Section 5.\177\ Moreover,
the Committee heard testimony that if the Bossier II standard
is left unaddressed ``all of the places where [we] did not have
Black representation where the number of seats, members on the
commission or county school board or city council were
increased, we would stand to lose representation, all of those
governing bodies, if the Bossier II standard is applied.''
\178\ Similar testimony was submitted to the Committee
emphasizing the impact that the Bossier II standard would have
had on voting changes precleared prior to the Bossier decision
(had the decision been in place), particularly on the creation
of districts currently held by African American elected
officials.\179\ Outcomes such as these were not contemplated by
Congress when enacting and reauthorizing Section 5. Section 5
was intended to foster and protect minority participation in
the electoral process, particularly to facilitate the ability
of minority groups to elect their preferred candidates of
choice. Voting changes that ``purposefully'' keep minority
groups ``in their place'' have no role in our electoral process
and are precisely the types of changes Section 5 is intended to
bar. To allow otherwise would be contrary to the protections
afforded by the 14th and 15th amendment and the VRA.
---------------------------------------------------------------------------
\177\ See Oversight Hearing on the Voting Rights Act: Section 5--
Preclearance Standards, Subcommittee on the Constitution, Committee on
the Judiciary, 109th Cong. 1 (November 1, 2005).
\178\ Id.
\179\ Id.
---------------------------------------------------------------------------
Thus, by clarifying that any voting change motivated by any
discriminatory purpose is prohibited under Section 5, the
Committee seeks to ensure that the ``purpose'' prong remains a
vital element to ensuring that Section 5 remains effective. In
amending the purpose prong to bar ``any discriminatory
purpose,'' the Committee is aware of concerns by some that such
a prohibition is ``standardless'' and unadministerable.\180\
However, the Committee finds these concern to be unfounded.
H.R. 9 is intended to restore the ``discriminatory purpose''
standard that was in place and administered until 2000.
Moreover, the Committee concludes that the factors set out in
Village of Arlington Heights et al. v. Metropolitan Housing
Development Corporation et. al. provide an adequate framework
for determining whether voting changes submitted for
preclearance were motivated by a discriminatory purpose,
including determining whether a disproportionate impact exists;
examining the historical background of the challenged decision;
looking at the specific antecedent events; determining whether
such change departs from the normal procedures; and examining
contemporary statements of the decision-maker, if any.\181\ In
weighing each of these factors, the Committee believes that a
proper and fair determination may be made as to whether a
voting change was motivated by a discriminatory intent.
---------------------------------------------------------------------------
\180\ Id.
\181\ See 429 U.S. 252 (1976).
---------------------------------------------------------------------------
Retrogressive Effect--The Ability to Elect
In 2003, the Supreme Court, in the case of Georgia v.
Ashcroft, construed Section 5 to narrow its reach,
significantly restricting the scope of the ``effect'' prong and
weakening Section 5's protection of minority groups from voting
changes that diminish their ability to elect their preferred
candidates of choice.
In a 5-4 decision, the Georgia Court held that ``any
assessment of the retrogression of a minority group's effective
exercise of the electoral franchise depends on an examination
of all the relevant circumstances, such as the ability to elect
candidates of choice, the extent of the minority groups'
opportunity to participate in the political process, and the
feasibility of creating a non-retrogressive plan.'' \182\ In
particular, the majority found that ``In assessing the totality
of the circumstances, a court should not focus solely on the
comparative ability of a minority group to elect a candidate of
its choice. While this factor is an important one in the
Section 5 retrogression inquiry, it cannot be dispositive.''
\183\ Indeed, the Court deemed other factors, such as whether
minority voters could influence an elected representative (to
the extent that a representative would be willing to take the
minority interest into account) relevant to the retrogression
analysis. The Court further held that--the State's choice
ultimately may rest on a political choice of whether
substantive or descriptive representation is preferable.''
\184\ Under its ``new'' analysis, the Supreme Court would allow
the minority community's own choice of preferred candidates to
be trumped by political deals struck by State legislators
purporting to give ``influence'' to the minority community
while removing that community's ability to elect candidates.
---------------------------------------------------------------------------
\182\ See Georgia v. Ashcroft, 539 U.S. 461, 479 (2003).
\183\ Id. at 480 (emphasis added). This vague and open-ended
``totality of the circumstances'' test opened the door to allow all
manner of raw political considerations to trump the minority's true and
genuine choice of candidates. As one commentator has pointed out, ``the
majority [in Georgia v. Ashcroft] went further than the principle
required to resolve Georgia itself and embraced a more expansive, still
ill-defined conception of other modes of `political influence' that
might be attributed to minority voters. These more nebulous modes of
influence might also substitute, the Court held, for safe minority-
controlled election districts. The dissent was right to raise
questions, both in principle and in practice, about whether this
further flexibility in the VRA is appropriate.'' Richard H. Pildes,
``The Constitutionalization of Democratic Politics,'' 118 Harv. L. Rev.
28, 95 (2004). The dissent in Georgia v. Ashcroft case correctly
pointed out that a ``totality of the circumstances'' under Section 5 is
hopelessly unadministrable by the Department of Justice because such a
concept does not retain ``the anchoring reference to electing a
candidate of choice.'' Georgia v. Ashcroft, 539 U.S. 461, 493 (Souter,
J., dissenting).
\184\ Id. at 483.
---------------------------------------------------------------------------
Permitting these trade-offs is inconsistent with the
original and current purpose of Section 5. The majority opinion
in Georgia turns Section 5 on its head. The provision was and
continues to be an extraordinary remedy to address a long and
continued history of discrimination in certain States and
jurisdictions. Its purpose is to require the scrutinizing of
changes to voting procedures made by jurisdictions to ensure
that minority voters are not discriminated against and that
gains made by minority voters over the course of decades are
not eroded. The preclearance provisions in Section 5 were and
are intended to put the burden of proof on covered
jurisdictions to demonstrate they are not enacting voting
changes that diminish the ability of minorities to elect their
preferred candidates of choice.\185\ Directly contrary to that
proposition, Georgia v. Ashcroft appears to hold that courts
should defer to the political decisions of States rather than
the genuine choice of minority voters regarding who is or is
not their candidate of choice.
---------------------------------------------------------------------------
\185\ See H.R. Rep. No. 94-196 (1975) and Beer v. United States,
425 U.S. 130 (1976).
---------------------------------------------------------------------------
Over the last 30 years, Section 5's ``effect'' prong has
served to protect the minority communities' ability to elect
candidates of choice in covered jurisdictions. In particular,
the Committee heard testimony describing the ``judicial
development of the retrogression standard'' \186\ and the
importance of the standard in protecting minority voters and
their ability to elect candidates of their choice. Since the
Supreme Court's decision in Beer v. United States,\187\ it was
accepted that if ``the ability of minority group's ability to
elect candidates of choice to office is diminished, Section 5
requires the denial of preclearance.'' \188\
---------------------------------------------------------------------------
\186\ See Oversight Hearing on the Voting Rights Act: The Judicial
Evolution of the Retrogression Standard, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 9,
2005).
\187\ 425 U.S. 130 (1976).
\188\ See Oversight Hearing on the Voting Rights Act: The Judicial
Evolution of the Retrogression Standard, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 9,
2005).
---------------------------------------------------------------------------
Indeed, the benefits to the minority community under the
Beer standard were significant over the last several decades.
The Committee heard testimony describing the positive impact
that minority-preferred representatives have had on minority
communities by fully ``representing their interests.'' \189\ In
particular, the Committee heard testimony confirming that
minority-preferred elected officials fight for issues that are
of importance to minority communities,\190\ and received
evidence that ``[o]fficials elected because of the equal voting
opportunities afforded minority citizens were more attuned to
the needs of the minority communities.'' \191\ These ``tangible
benefits were the direct result of the success of the Voting
Rights Act.'' \192\ The Committee finds these results to be the
types of successes that Congress sought to achieve through
Section 5. These outcomes are achieved most often when a
geographically compact minority group is able to control the
outcome of an election, such that minority-preferred candidates
are elected to office--on terms similar to other communities.
---------------------------------------------------------------------------
\189\ Id.
\190\ See Frederickson and Vagins, Promises to Keep: The Impact of
the Voting Rights Act in 2006, March 2006, at 25.
\191\ Id.
\192\ Id.
---------------------------------------------------------------------------
The Committee believes that the gains made by minority
communities in districts represented by elected officials of
the minority communities' choice would be jeopardized if the
retrogression standard, as altered by the Supreme Court in
Georgia, remains uncorrected by Congress. Indeed, the Committee
was persuaded by testimony revealing that the current
interpretation ``permits a jurisdiction to choose among
different theories of representation, introduces a substantial
uncertainty for minority communities into a statute that was
specifically intended to block persistent and shifting efforts
to limit the effectiveness of minority political
participation.'' \193\ Moreover, the Committee is concerned by
testimony indicating that ``[m]inority influence is nothing
more than a guise for diluting minority voting strength.''
\194\ Accordingly, leaving the Georgia standard in place would
encourage States to spread minority voters under the guise of
``influence'' and would effectively shut minority voters out of
the political process. In essence, the Committee heard that
Section 5, if left uncorrected, would now allow ``States to
turn black and other minority voters into second class voters
who can influence elections of white candidates, but who cannot
elect their preferred candidates, including candidates of their
own race.'' \195\ This is clearly not the outcome that Congress
intended the Voting Rights Act and Section 5 to have on
minority voters.
---------------------------------------------------------------------------
\193\ See Oversight Hearing on the Voting Rights Act: The Judicial
Evolution of the Retrogression Standard, Subcommittee on the
Constitution, Committee on the Judiciary, 109th Cong. 1 (November 9,
2005).
\194\ Id.
\195\ Id.
---------------------------------------------------------------------------
Testimony presented to the Committee further suggested
that, if left unaddressed, the Georgia standard threatens ``the
Nation's commitment to representative democracy. . . .'' \196\
The Committee agrees. Section 5 was intended to prevent covered
jurisdictions from making decisions that shut minority voters
out of the political process. The Committee is convinced that
Congress should not allow covered jurisdictions the discretion
to make decisions on behalf of minority voters on the record it
has before it. To leave the present retrogression standard
enunciated in Georgia uncorrected would effectively diminish
the significance of Section 5's remedy and would make Federal
scrutiny a wasteful formality.
---------------------------------------------------------------------------
\196\ Id.
---------------------------------------------------------------------------
Thus, in amending Section 5 to add a new subsection (b),
the Committee makes clear that in making preclearance
determinations under Section 5, the comparative ``ability [of
the minority community] to elect preferred candidates of
choice'' is the relevant factor to be evaluated when
determining whether a voting change has a retrogressive effect.
This change is intended to restore Section 5 and the effect
prong to the standard of analysis set forth by this Committee
during its examination of Section 5 in 1975, such that a change
should be denied preclearance under Section 5 if it diminishes
the ability of minority groups to elect their candidates of
choice.\197\ Such was the standard of analysis articulated by
the Supreme Court in Beer v. United States, the retrogression
standard of analysis on which the Court, the Department of
Justice, and minority voters relied for 30 years, and the
standard the Committee seeks to restore.\198\ Voting changes
that leave a minority group less able to elect a preferred
candidate of choice, either directly or when coalesced with
other voters, cannot be precleared under Section 5.
Furthermore, by adding the adjective ``preferred'' before
``candidate,'' the Committee makes clear that the purpose of
Section 5 is to protect the electoral power of minority groups
to elect candidates that the minority community desires to be
their elected representative.
---------------------------------------------------------------------------
\197\ See H.R. Rep. No. 94-196, at 60 (1975) (stating ``the
standard can only be satisfied by determining . . . whether the ability
of minority group's . . . to elect candidates of their choice to office
is . . . diminished'').
\198\ See Beer v United States, 425 U.S.130 (1976).
---------------------------------------------------------------------------
In preserving the ability of minority groups to determine
who their elected representatives should be, the Committee
makes clear that decisions or influence by States or partisan
legislatures as to whom candidates of the minority community
``should be'' have no place in the comparative analysis. The
comparative analysis under Section 5 is intended to be
specifically focused on whether the electoral power of the
minority community is more, less, or just as able to elect a
preferred candidate of choice after a voting change as before.
In adding subsection (d), the Committee makes clear that
Congress explicitly rejects all that logically follows from
Justice O'Connor's statement that ``In assessing the totality
of the circumstances, a court should not focus solely on the
comparative ability of a minority group to elect a candidate of
its choice. While this factor is an important one in the
Section 5 retrogression inquiry, it cannot be dispositive.''
\199\ The language in subsection (d) makes clear that it is the
intent of Congress that the relevant analysis in determining
whether a voting change violates subsection (b) is a comparison
between the minority community's ability to elect their
genuinely preferred candidate of choice before and after a
voting change, consistent with the standard established by the
Beer Court and the precedent that followed. To be clear, in
adding Subsections (b) and (d), the Committee intends only to
clarify its intent with regard to Section 5 and does not intend
to disturb Section 2 or the settled jurisprudence established
by the Supreme Court in Thornburg v. G. Jingles, \200\ Growe v.
Emison,\201\ and Voinovich v. Quilter.\202\ Sections 2 and 5
serve two different purposes under the VRA. The Committee
change to Section 5 is intended to ensure that Section 5
remains effective in its purpose such that Sections 2 and 5 can
continue to work together to protect minority voters.
---------------------------------------------------------------------------
\199\ Id. at 480 (emphasis added).
\200\ See 478 U.S. 30 (1986).
\201\ See 507 U.S. 25 (1993).
\202\ See 507 U.S. 146 (1993).
---------------------------------------------------------------------------

APPENDICES

Hearings

The House Committee on the Judiciary's Subcommittee on the
Constitution held 1 day of hearings on H.R. 9 on May 4, 2006.
Testimony was received from the following witnesses: J. Gerald
Hebert, Former Acting Chief, Civil Rights Division, Department
of Justice; Roger Clegg, President and General Counsel, Center
for Equal Opportunity; Debo Adegbile, Associate Director, NAACP
Legal Defense and Education Fund; Rena Comisa, Principal Deputy
Assistant Attorney General, Civil Rights Division, Department
of Justice; The Honorable Chris Norby, Supervisor, Fourth
District, Orange County Board of Supervisor; Karen Narasaki,
President and Executive Director, Asian American Justice
Center; and Dr. James Thomas Tucker, Voting Rights Consultant,
NALEO Educational Fund and Adjunct Professor, Barrett Honors
College, Arizona State University, with additional material
submitted by individuals and organizations.

Committee Consideration

On May 10, 2006, the Committee met in open session and
ordered favorably reported the bill H.R. 9 with an amendment by
a recorded vote of 33 to 1, a quorum being present.

Vote of the Committee

In compliance with clause 3(b) of Rule XIII of the Rules of
the House of Representatives, the Committee notes that the
following rollcall votes occurred during the Committee's
consideration of H.R. 9.
1. An amendment was offered by Mr. King that would have
struck the provisions of the bill that reauthorized Section 203
of the Voting Rights Act for another 25 years. By a rollcall
vote of 9 yeas to 26 nays, the amendment was defeated.

ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................ X
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte...................................................
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake....................................................... X
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert..................................................... X
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher.....................................................
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren..................................................... X
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 9 26
----------------------------------------------------------------------------------------------------------------

2. An amendment was offered by Mr. King that would have
limited to 6 years the provisions of the bill that reauthorized
Section 203 of the Voting Rights Act for 25 years. The
amendment also would have precluded the use American Community
Survey data in 5-year increments. By a rollcall vote of 10 yeas
to 24 nays, the amendment was defeated.

ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 10 24
----------------------------------------------------------------------------------------------------------------

3. Final Passage. The motion to report favorably the bill
H.R. 9, as amended, was agreed to by a rollcall vote of 33 yeas
to 1 nays.

ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
Ayes Nays Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble....................................................... X
Mr. Smith (Texas)............................................... X
Mr. Gallegly.................................................... X
Mr. Goodlatte................................................... X
Mr. Chabot...................................................... X
Mr. Lungren..................................................... X
Mr. Jenkins..................................................... X
Mr. Cannon...................................................... X
Mr. Bachus......................................................
Mr. Inglis...................................................... X
Mr. Hostettler.................................................. X
Mr. Green....................................................... X
Mr. Keller...................................................... X
Mr. Issa........................................................ X
Mr. Flake.......................................................
Mr. Pence....................................................... X
Mr. Forbes...................................................... X
Mr. King........................................................ X
Mr. Feeney...................................................... X
Mr. Franks...................................................... X
Mr. Gohmert.....................................................
Mr. Conyers..................................................... X
Mr. Berman...................................................... X
Mr. Boucher..................................................... X
Mr. Nadler...................................................... X
Mr. Scott....................................................... X
Mr. Watt........................................................ X
Ms. Lofgren.....................................................
Ms. Jackson Lee................................................. X
Ms. Waters...................................................... X
Mr. Meehan......................................................
Mr. Delahunt.................................................... X
Mr. Wexler...................................................... X
Mr. Weiner...................................................... X
Mr. Schiff...................................................... X
Ms. Sanchez..................................................... X
Mr. Van Hollen.................................................. X
Ms. Wasserman Schultz........................................... X
Mr. Sensenbrenner, Chairman..................................... X
-----------------------------------------------
Total....................................................... 33 1
----------------------------------------------------------------------------------------------------------------

Committee Oversight Findings

In compliance with clause 3(c)(1) of Rule XIII of the Rules
of the House of Representatives, the Committee reports that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of Rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.

New Budget Authority and Tax Expenditures

Clause 3(c)(2) of Rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.

Congressional Budget Office Cost Estimate

In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 9, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:

U.S. Congress,
Congressional Budget Office,
Washington, DC, May 17, 2006.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 9, the ``Fannie
Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
Reauthorization and Amendments Act of 2006.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts is Matthew
Pickford, who can be reached at 226-2860.
Sincerely,
Donald B. Marron,
Acting Director.

Enclosure

cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 9--Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006.

SUMMARY

H.R. 9 would reauthorize and amend the Voting Rights Act of
1965. Major provisions of the legislation would extend certain
expiring provisions of the act for 25 years, expand the use of
federal observers at polling sites, and authorize the use of
the American Community Survey to identify areas that may need
bilingual voting assistance. In addition, H.R. 9 would require
the Government Accountability Office (GAO) to report to the
Congress on the implementation of a provision of the Voting
Rights Act regarding the requirement for election materials in
both English and an alternative language.
CBO estimates that implementing H.R. 9 would cost $1
million in fiscal year 2007 and $15 million over the 2007-2011
period, subject to the availability of appropriated funds.
Enacting the bill would have no impact on direct spending or
revenues.
Section 4 of the Unfunded Mandates Reform Act (UMRA)
excludes from the application of the act any legislative
provisions that enforce constitutional rights of individuals.
CBO has determined that H.R. 9 would fall within that exclusion
because it would protect the voting rights of minorities and
those with limited proficiency in English. Therefore, CBO has
not reviewed the bill for mandates.

ESTIMATED COST TO THE FEDERAL GOVERNMENT

The estimated budgetary impact of H.R. 9 is shown in the
following table. The costs of this legislation fall within
budget function 800 (general government).

By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
2007 2008 2009 2010 2011
------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
OPM Spending Under Current Law for
Voting Rights Program
Estimated Authorization Level 2 0 0 0 0
Estimated Outlays 2 0 0 0 0

Proposed Changes
Estimated Authorization Level 1 4 3 3 3
Estimated Outlays 1 4 3 3 3

OPM Spending Under H.R. 9 for Voting
Rights Program
Estimated Authorization Level 3 4 3 3 3
Estimated Outlays 3 4 3 3 3
------------------------------------------------------------------------

BASIS OF ESTIMATE

For this estimate, CBO assumes that H.R. 9 will be enacted
near the end of fiscal year 2006, that the necessary amounts
will be appropriated over the 2007-2011 period, and that
spending will follow historical spending patterns for the
Office of Personnel Management (OPM).
The legislation would extend for 25 years certain expiring
provisions of the Voting Rights Act. Under current law, the
Department of Justice (DOJ) certifies the appointment of
federal observers to work at polling sites when it has received
20 or more written complaints from residents regarding voting
rights violations. OPM, through its Voting Rights Program,
works closely with DOJ to assign voting rights observers to
locations designated by the department. OPM currently has about
1,000 intermittent employees who serve as neutral monitors at
particular polling sites on election days. Since 1966, OPM has
deployed 26,000 observers to 22 States.
The legislation would amend current law to authorize the
Attorney General to assign federal observers without using the
certification process to election sites if he or she has had a
reasonable belief that violations of the 14th or 15th amendment
have occurred or will occur at a polling site. Based on
information from OPM and the current cost of operating the
observer program, CBO estimates that the Voting Rights Program
would spend about $4 million in general election years and
about $3 million in other years.
H.R. 9 also would require the GAO to report to the
Congress, within one year, on the implementation of a section
of the Voting Rights Act of 1965 regarding the provision of
voting materials in alternative languages (in addition to
materials in English). Based on similar reports, CBO estimates
that preparing and distributing the report would cost less than
$500,000.

INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

Section 4 of UMRA excludes from the application of the act
any legislative provisions that enforce constitutional rights
of individuals. CBO has determined that H.R. 9 would fall
within that exclusion because it would protect the voting
rights of minorities and those with limited proficiency in
English. Therefore, CBO has not reviewed the bill for mandates.

ESTIMATE PREPARED BY:

Federal Costs: Matthew Pickford (226-2860)
Impact on State, Local, and Tribal Governments: Sarah Puro
(225-3220)
Impact on the Private-Sector: Craig Cammarata (226-2940)

ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

Performance Goals and Objectives

The Committee states that pursuant to clause 3(c)(4) of
Rule XIII of the Rules of the House of Representatives, H.R. 9
will: (1) extend for another 25 years Section 4(a)(8) and
Section 203(b)(1), the temporary provisions of the Voting
Rights Act of 1965 currently set to expire on August 6, 2007;
and (2) amend Section 3(a), Section (4), Section 5, Section 6,
Section 7, Section 8, Section 9, Section 14, and Section 203 to
update certain provisions of the Voting Rights Act of 1965 to
reflect the current voting environment and to restore the
original intent of Congress in enacting the temporary
provisions of the Act.

Constitutional Authority Statement

Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation under amend. XIV, Sec. 5 and amend. XV,
Sec. 2.

Section-by-Section Analysis and Discussion

The following discussion describes the bill as reported by
the Committee.
Sec. 1. Short Title.
This section provides that the Act may be cited as the
``Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006'' (the
``VRARA'').
Sec. 2. Congressional Purpose and Findings.
This section sets out the Congressional findings and
purposes supporting the VRARA.
Sec. 3. Changes Relating to Use of Examiners and Observers.
This section contains five subsections.

LSec. 3(a). Use of Observers. Current Section
8 of the VRA (42 U.S.C. Sec. 1973f) authorizes the
Attorney General to request that the Office of
Personnel Management (OPM) assign Federal observers to
jurisdictions where examiners are located to observe
whether citizens who are eligible to vote are able to
exercise the right to vote. Federal observers are the
only Federal officials who are authorized to enter
polls and places where votes are tabulated. (Under
current law, observers can only be assigned after a
jurisdiction has been certified for Federal examiner
coverage.) Section 3(a) of the VRARA authorizes the
Attorney General or court under Section 3(a) of the VRA
to directly assign Federal observers upon a finding
that there is a reasonable belief that a violation of
the 14th or 15th amendment has occurred or will occur,
without having to first certify the use of Federal
examiners. (Federal examiners would be eliminated under
Section 3(c) of the VRARA because examiners have not
been appointed to jurisdictions certified for coverage
in some twenty years.)

LSec. 3(b). Modification of Section 13.
Section 13 of the VRA (42 U.S.C. Sec. 1973k) enables
those covered jurisdictions certified for Federal
examiners, and subject to the listing procedures set
forth in Section 7 of the VRA, the opportunity to apply
to the Attorney General or to the Federal court, if
applicable, to terminate the certification of such
examiners. Section 3(b) of the VRARA would eliminate
these provisions as applied to examiners (which would
be eliminated under Section 3(c) of the VRARA) and
simply transfer those termination procedures to allow
for the termination of observers.

LSec. 3(c). Repeal of Sections Relating to
Examiners. This section would strike Sections 6, 7, and
9 of the VRA. Section 6 of the VRA (42 U.S.C. 1973d)
authorizes the court or the Attorney General to direct
the OPM to send Federal examiners either to covered
jurisdictions, or where the court believes it necessary
to protect citizens' 14th and 15th amendment rights.
Section 3(c) of the VRARA would strike the authority of
the Attorney General, or the court, to appoint Federal
examiners.\203\ Section 7 of the VRA (42 U.S.C.
Sec. 1973e) sets forth the process that Federal
examiners are required to follow when listing those
individuals who meet the voter qualifications set forth
by a State. Section 3(c) of the VRARA would eliminate
the listing procedures in accordance with the
elimination of Federal examiners. Section 9 of the VRA
(42 U.S.C. Sec. 1973g) sets forth the process for
individuals to challenge the eligibility of a voter
listed by a Federal examiner. Section 3(c) of the VRARA
would eliminate this process along with the rest of the
Federal examiner provisions.
---------------------------------------------------------------------------
\203\ Testimony received by the Subcommittee on the Constitution
revealed that Federal statutes, such as the National Voter Registration
Act of 1993 (NVRA) and the Help American Vote Act of 2002 (HAVA), have
been integral in increasing voter registration applications and voter
turnout, and such statutes are now the primary means by which the
integrity of voting rolls is secured at the Federal level. (The NVRA
requires States to make voter registration opportunities available to
individuals at all agencies that provide public assistance, including
driver's license offices, public benefit offices, and social service
agencies. Under the NVRA, states are required to update their
registration list to reflect recently deceased voters or voters who
have moved. In addition, the NVRA prohibits States from removing
registered voters from a registration list solely because they have not
voted in an election. HAVA requires states to update voting equipment,
maintain a centrally located computerized registration list accessible
by every election official, and make other changes related to voter
registration. Both statutes are enforced by the Department of Justice.)

LSec.3(d). Substitution of References to
``Observers'' for References to ``Examiners.'' This
section makes technical changes to several sections of
the VRA that are necessary to replace the role of
Federal examiners with those of Federal observers.
Section 3(a) of the VRA (42 U.S.C. 1973a) currently
authorizes Federal courts, in proceedings under any
statutes enforcing the 14th and 15th amendments' voting
guarantees, to use Federal election examiners and
observers to monitor the actions of covered
jurisdictions. Section 3(d) of the VRARA amends Section
3(a) of the VRA by replacing the court's authority to
assign Federal examiners with the authority to assign
Federal observers only.\204\
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\204\ Again, this change is in response to testimony received by
the Subcommittee on the Constitution showing that Federal examiners
have not been used to list individuals for voting in the last twenty
years. Federal observers, on the other hand, have been the most
frequently used Federal oversight tools in the last 20 years.

LSec. 3(e). Conforming Changes Relating to
Section References. This section makes technical
changes to section references in the VRA to reflect the
changes made by the VRARA.
Sec. 4. Reconsideration of Section 4 by Congress.
This section makes technical changes to the VRA to reflect
the title of the VRARA, namely the ``Fannie Lou Hamer, Rosa
Parks, and Coretta Scott King Voting Rights Act Reauthorization
and Amendments Act of 2006.'' Section 4 of the VRA (42 U.S.C.
Sec. 1973b) identifies by formula those jurisdictions subject
to the Federal oversight provisions contained in Sections 5
through 8 of the VRA and sets out the requirements covered
jurisdictions must meet to ``bailout'' (that is, to be removed
from coverage under the Voting Rights Act). Section 4 of the
VRARA would extend these expiring provisions for an additional
25 years. In addition, and in accordance with the proposed
replacement of Federal examiners with Federal observers in
Section 3(c) of VRARA, the changes made by Section 4 of the
VRARA to Section 4 of the VRA would specify that the Attorney
General's decision to certify Federal observers in a covered
jurisdiction is not reviewable (as is currently the law
regarding the Attorney General's determination to certify
Federal examiners under the VRA).
Sec. 5. Criteria for Declaratory Judgment.
Section 5 of the VRA (42 U.S.C. Sec. 1973c) requires
covered jurisdictions to preclear all voting changes with
either the Department of Justice or the U.S. District Court for
the District of Columbia. (The need to renew Section 5 is
evidenced in part by the fact that Section 5 was used more
often between 1982 and 2005 than it was between 1965 and 1982,
resulting in the retraction of more voting rules changes that
would have adversely affected minorities.) The expiring
provisions of the Voting Rights Act only apply to jurisdictions
that have the most extensive histories of discrimination and
segregation. And even within those covered jurisdictions, the
expiring provisions of the Voting Rights Act only require that
voting rule changes first be ``precleared'' by the Justice
Department or the D.C. Federal court before they go into
effect. The Supreme Court has held that Congress has the clear
authority to enact provisions that simply prevent certain
states from ``backsliding'' in their protection of minority
voting rights.\205\ (The expiring provisions of the Voting
Rights Act allow any covered jurisdiction to remove itself from
coverage if it can demonstrate a ``clean record'' \206\ on
discrimination over the previous 10 years. In fact, 11 counties
in Virginia have successfully removed themselves from coverage
under the Voting Rights Act.)
---------------------------------------------------------------------------
\205\ The Supreme Court has stated that ``The language and purpose
of the Fifteenth Amendment [which prohibits racial discrimination in
voting], the prior decisions construing its several provisions, and the
general doctrines of constitutional interpretation, all point to one
fundamental principle. As against the reserved powers of the States,
Congress may use any rational means to effectuate the constitutional
prohibition of racial discrimination in voting . . . Sec. 2 of the
Fifteenth Amendment expressly declares that `Congress shall have power
to enforce this article by appropriate legislation.' By adding this
authorization, the Framers indicated that Congress was to be chiefly
responsible for implementing the rights created in Sec. 1 . . .
Accordingly, in addition to the courts, Congress has full remedial
powers to effectuate the constitutional prohibition against racial
discrimination in voting.'' South Carolina v. Katzenbach, 383 U.S. 301,
325-27 (1966) (emphasis added). In City of Boerne v. Flores, 521 U.S.
507, 518 (1997) (emphasis added), the Court stated ``Legislation which
deters or remedies constitutional violations can fall within the sweep
of Congress' enforcement power even if in the process it prohibits
conduct which is not itself unconstitutional and intrudes into
legislative spheres of autonomy previously reserved to the States. For
example, the Court upheld a suspension of literacy tests and similar
voting requirements under Congress' parallel power to enforce the
provisions of the Fifteenth Amendment as a measure to combat racial
discrimination in voting despite the facial constitutionality of the
tests . . .'' In City of Rome v. United States, the Court stated
```Congress may, under the authority of Sec. 2 of the Fifteenth
Amendment, prohibit state action that, though in itself not violative
of Sec. 1, perpetuates the effects of past discrimination.'' City of
Rome v. United States, 446 U.S. 156, 173, 176 (1980) (emphasis added).
\206\ To be removed from coverage under Section 5, a jurisdiction
need only show that it has not administered literacy tests within the
preceding 10 years; has complied with all Federal pre-clearance
requirements; has not been the subject of litigation or consent decrees
relating to voting discrimination; and has taken steps to include
minorities in the electoral process.
---------------------------------------------------------------------------
Two Supreme Court decisions (Reno v. Bossier Parish
(``Bossier II'') and Georgia v. Ashcroft) have significantly
narrowed Section 5's effectiveness. The changes Section 5 of
the VRARA makes to Section 5 of the VRA will:

Lmake clear that Congress rejects the Supreme
Court's holding in Reno v. Bossier Parish,\207\ by
making clear that, contrary to that decision,
``retrogression'' \208\ is not the only violation of
voting rights the preclearance procedures protect
against, and that a voting rule change motivated by any
discriminatory purpose also cannot be precleared. The
VRARA does this by creating new subsections (b) and (c)
to Section 5 that state:
---------------------------------------------------------------------------
\207\ 528 U.S. 320 (2000).
\208\ ``Retrogression'' means a process by which voting changes put
the minority community in a worse position to elect a candidate of
their choice compared to such minorities' position prior to the
administration of a new voting provision.

L(b) Any voting qualification or prerequisite to
voting, or standard, practice, or procedure with
respect to voting that has the purpose of or will have
the effect of diminishing the ability of any citizens
of the United States on account of race or color, or in
contravention of the guarantees set forth in section
4(f)(2), to elect their preferred candidates of choice
denies or abridges the right to vote within the meaning
---------------------------------------------------------------------------
of subsection (a) of this section.

L(c) The term ``purpose'' in subsections (a) and
(b) of this section shall include any discriminatory
purpose.

Lmake clear that Congress partly rejects the
Supreme Court's decision in Georgia v. Ashcroft. Before
the Supreme Court's decision in Georgia v.
Ashcroft,\209\ it was clear that the Voting Rights Act
served to protect the minority community's ability to
elect their preferred candidates of choice. However,
Justice O'Connor, writing for a 5-4 majority, held in
Georgia v. Ashcroft that ``In assessing the totality of
the circumstances, a court should not focus solely on
the comparative ability of a minority group to elect a
candidate of its choice.'' \210\ This vague and open-
ended ``totality of the circumstances'' test opened the
door to allow all manner of undefined considerations to
trump the minority's choice of candidate, and the
dissent in the Georgia v. Ashcroft case correctly
pointed out that a ``totality of the circumstances''
under Section 5 is hopelessly unadministerable by the
Department of Justice because such a concept does not
retain ``the anchoring reference to electing a
candidate of choice.'' \211\ VRARA restores the
standard articulated in Beer v. United States. To
restore the original meaning of Section 5 of the Voting
Rights Act, the VRARA makes clear, in a new subsection
(d), that:
---------------------------------------------------------------------------
\209\ Georgia v. Ashcroft, 539 U.S. 461 (2003).
\210\ Georgia v. Ashcroft, 539 U.S. 461, 480 (2003) (emphasis
added).
\211\ Georgia v. Ashcroft, 539 U.S. 461, 493 (Souter, J.,
dissenting).
---------------------------------------------------------------------------
L(d) The purpose of subsection (b) of this
section is to protect the ability of such [minority]
citizens to elect their preferred candidates of choice.
Sec. 6. Expert Fees and Other Reasonable Costs of Litigation.
Section 14 of the VRA (42 U.S.C. Sec. 1973l) currently
authorizes prevailing parties (other than the United States) to
recover attorney fees. Section 6 of the VRARA updates this
provision by authorizing the prevailing party to also recover
expert costs as part of the attorney fees, as is already
provided for in the vast majority of civil rights legislation.
Sec. 7. Extension of Language Assistance Requirements.
Section 7 of the VRARA extends Section 203 of the VRA's
requirements (the bilingual election materials requirements)
for a period of 25 years. Sections 203 and 4(f) of the VRA
require that bilingual election assistance be given to language
minority citizens in certain States and political subdivisions.
Under Sections 203 and 4(f), covered jurisdictions are required
to provide voting materials such as notices, forms,
instructions, ballots, and other materials in the applicable
covered language (Spanish, Asian-American, Native American, and
Native Alaskan). Section 203 of the Voting Rights Act only
requires that non-English voting materials be made available in
jurisdictions (1) in which 5 percent of the voting age
population consists of a single language, limited English
proficient minority and in which there is a literacy rate below
the national average; or (2) in which more than 10,000 citizens
who meet those criteria reside. A jurisdiction can get out from
under coverage under Section 203 if it shows the D.C. Federal
court that the applicable language minority population's
literacy rate is at the national average or above. Section 203
protects citizens, not illegal immigrants. Citizens in the
process of learning to read should not be denied assistance in
voting, and such citizens should not be denied aid for lack of
educational opportunities.
Sec. 8. Use of American Community Survey Census Data.
Section 8 of the VRARA updates Section 203 of the VRA to
reflect the fact that the long form census, which had been used
in coverage determinations, will no longer be used by the
Census Bureau after 2010. The American Community Survey has
replaced the long form and will be administered by the Census
Bureau annually. Determinations for coverage under Section 203
will be made by the Director of the Census based upon
information compiled by the ACS on a rolling 5-year average.
Section 9. Study and Report.
Section 9 of the VRARA authorizes the Comptroller General
to conduct a study on the implementation, effectiveness, and
efficiency of Section 203, the bilingual language assistance
provision. In conducting the study, the Comptroller General is
required to identify alternatives to the current administrative
process under Section 203. The study is to be completed within
a year of the effective date of the VRARA.

Changes in Existing Law Made by the Bill, as Reported

In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):

VOTING RIGHTS ACT OF 1965

TITLE I--VOTING RIGHTS

* * * * * * *

Sec. 3. (a) Whenever the Attorney General or an aggrieved
person institutes a proceeding under any statute to enforce the
voting guarantees of the fourteenth or fifteenth amendment in
any State or political subdivision the court shall authorize
the appointment of Federal [examiners] observers by the United
States Civil Service Commission in accordance with section 6 to
serve for such period of time and for such political
subdivisions as the court shall determine is appropriate to
enforce the voting guarantees of the fourteenth or fifteenth
amendment (1) as part of any interlocutory order if the court
determines that the appointment of such [examiners] observers
is necessary to enforce such voting guarantees or (2) as part
of any final judgment if the court finds that violations of the
fourteenth or fifteenth amendment justifying equitable relief
have occurred in such State or subdivision: That the court need
not authorize the appointment of [examiners] observers if any
incidents of denial or abridgement of the right to vote on
account of race or color, or in contravention of the guarantees
set forth in section 4(f)(2), (1) have been few in number and
have been promptly and effectively corrected by State or local
action, (2) the continuing effect of such incidents has been
eliminated, and (3) there is no reasonable probability of their
recurrence in the future.

* * * * * * *

Sec. 4. (a)(1) To assure that the right of citizens of
the United States to vote is not denied or abridged on account
of race or color, no citizen shall be denied the right to vote
in any Federal, State, or local election because of his failure
to comply with any test or device in any State with respect to
which the determinations have been made under the first two
sentences of subsection (b) or in any political subdivision of
such State (as such subdivision existed on the date such
determinations were made with respect to such State), though
such determinations were not made with respect to such
subdivision as a separate unit, or in any political subdivision
with respect to which such determinations have been made as a
separate unit, unless the United States District Court for the
District of Columbia issues a declaratory judgment under this
section. No citizen shall be denied the right to vote in any
Federal, State, or local election because of his failure to
comply with any test or device in any State with respect to
which the determinations have been made under the third
sentence of subsection (b) of this section or in any political
subdivision of such State (as such subdivision existed on the
date such determinations were made with respect to such State),
though such determinations were not made with respect to such
subdivision as a separate unit or in any political subdivision
with respect to which such determinations have been made as a
separate unit, unless the United States District Court for the
District of Columbia issues a declaratory judgment under this
section. A declaratory judgment under this section shall issue
only if such court determines that during the ten years
preceding the filing of the action, and during the pendency of
such action--
(A) * * *

* * * * * * *

(7) The Congress shall reconsider the provisions of this
section at the end of the fifteen-year period following the
effective date of the amendments made by the [Voting Rights Act
Amendments of 1982] Fannie Lou Hamer, Rosa Parks, and Coretta
Scott King Voting Rights Act Reauthorization and Amendments Act
of 2006.
(8) The provisions of this section shall expire at the end
of the twenty-five-year period following the effective date of
the amendments made by the [Voting Rights Act Amendments of
1982] Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
Voting Rights Act Reauthorization and Amendments Act of 2006.

* * * * * * *

(b) The provisions of subsection (a) shall apply in any
State or in any political subdivision of a State which (1) the
Attorney General determines maintained on November 1, 1964, any
test or device, and with respect to which (2) the Director of
the Census determines that less than 50 per centum of the
persons of voting age residing therein were registered on
November 1, 1964, or that less than 50 per centum of such
persons voted in the presidential election of November 1964. On
and after August 6, 1970, in addition to any State or political
subdivision of a State determined to be subject to subsection
(a) pursuant to the previous sentence, the provisions of
subsection (a) shall apply in any State or any political
subdivision of a State which (i) the Attorney General
determines maintained on November 1, 1968, any test or device,
and with respect to which (ii) the Director of the Census
determines that less than 50 per centum of the persons of
voting age residing therein were registered on November 1,
1968, or that less than 50 per centum of such persons voted in
the presidential election of November 1968. On and after August
6, 1975, in addition to any State or political subdivision of a
State determined to be subject to subsection (a) pursuant to
the previous two sentences, the provisions of subsection (a)
shall apply in any State or any political subdivision of a
State which (i) the Attorney General determines maintained on
November 1, 1972, any test or device, and with respect to which
(ii) the Director of the Census determines that less than 50
per centum of the citizens of voting age were registered on
November 1, 1972, or that less than 50 per centum of such
persons voted in the Presidential election of November 1972.
A determination or certification of the Attorney General
or of the Director of the Census under this section or under
[section 6] section 8 or section 13 shall not be reviewable in
any court and shall be effective upon publication in the
Federal Register.
Sec. 5. (a) Whenever a State or political subdivision
with respect to which the prohibitions set forth in section
4(a) based upon determinations made under the first sentence of
section 4(b) are in effect shall enact or seek to administer
any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting
different from that in force or effect on November 1, 1964, or
whenever a State or political subdivision with respect to which
the prohibitions set forth in section 4(a) based upon
determinations made under the second sentence of section 4(b)
are in effect shall enact or seek to administer any voting
qualification or prerequisite to voting, or standard, practice,
or procedure with respect to voting different from that in
force or effect on November 1, 1968, or whenever a State or
political subdivision with respect to which the prohibitions
set forth in section 4(a) based upon determinations made under
the third sentence of section 4(b) are in effect shall enact or
seek to administer any voting qualifications or prerequisite to
voting, or standard, practice, or procedure with respect to
voting different from that in force or effect on November 1,
1972, such State or subdivision may institute an action in the
United States District Court for the District of Columbia for a
declaratory judgment that such qualification, prerequisite,
standard, practice, or procedure [does not have the purpose and
will not have the effect] neither has the purpose nor will have
the effect of denying or abridging the right to vote on account
of race or color, or in contravention of the guarantees set
forth in section 4(f)(2), and unless and until the court enters
such judgment no person shall be denied the right to vote for
failure to comply with such qualification, prerequisite,
standard, practice, or procedure: That such qualification,
prerequisite, standard, practice, or procedure may be enforced
without such proceeding if the qualification, prerequisite,
standard, practice, or procedure has been submitted by the
chief legal officer or other appropriate official of such State
or subdivision to the Attorney General and the Attorney General
has not interposed an objection within sixty days after such
submission, or upon good cause shown, to facilitate an
expedited approval within sixty days after such submission, the
Attorney General has affirmatively indicated that such
objection will not be made. Neither an affirmative indication
by the Attorney General that no objection will be made, nor the
Attorney General's failure to object, nor a declaratory
judgment entered under this section shall bar a subsequent
action to enjoin enforcement of such qualification,
prerequisite, standard, practice, or procedure. In the event
the Attorney General affirmatively indicates that no objection
will be made within the sixty-day period following receipt of a
submission, the Attorney General may reserve the right to
reexamine the submission if additional information comes to his
attention during the remainder of the sixty-day period which
would otherwise require objection in accordance with this
section. Any action under this section shall be heard and
determined by a court of three judges in accordance with the
provisions of section 2284 of title 28 of the United States
Code and any appeal shall lie to the Supreme Court.
(b) Any voting qualification or prerequisite to voting, or
standard, practice, or procedure with respect to voting that
has the purpose of or will have the effect of diminishing the
ability of any citizens of the United States on account of race
or color, or in contravention of the guarantees set forth in
section 4(f)(2), to elect their preferred candidates of choice
denies or abridges the right to vote within the meaning of
subsection (a) of this section.
(c) The term ``purpose'' in subsections (a) and (b) of this
section shall include any discriminatory purpose.
(d) The purpose of subsection (b) of this section is to
protect the ability of such citizens to elect their preferred
candidates of choice.
[Sec. 6. Whenever (a) a court has authorized the
appointment of examiners pursuant to the provisions of section
3(a), or (b), unless a declaratory judgment has been rendered
under section 4(a), the Attorney General certifies with respect
to any political subdivision named in, or included within the
scope of, determinations made under section 4(b) that (1) he
has received complaints in writing from twenty or more
residents of such political subdivision alleging that they have
been denied the right to vote under color of law on account of
race or color, or in contravention of the guarantees set forth
in section 4(f)(2), and that he believes such complaints to be
meritorious, or (2) that in his judgment (considering, among
other factors, whether the ratio of nonwhite persons to white
persons registered to vote within such subdivision appears to
him to be reasonably attributable to violations of the
fourteenth or fifteenth amendment or whether substantial
evidence exists that bona fide efforts are being made within
such subdivision to comply with the fourteenth or fifteenth
amendment), the appointment of examiners is otherwise necessary
to enforce the guarantees of the fourteenth or fifteenth
amendment, the Civil Service Commission shall appoint as many
examiners for such subdivision as it may deem appropriate to
prepare and maintain lists of persons eligible to vote in
Federal, State, and local elections. Such examiners, hearing
officers provided for in section 9(a), and other persons deemed
necessary by the Commission to carry out the provisions and
purposes of this Act shall be appointed, compensated, and
separated without regard to the provisions of any statute
administered by the Civil Service Commission, and service under
this Act shall not be considered employment for the purposes of
any statute administered by the Civil Service Commission,
except the provisions of subchapter III of chapter 73 of title
5, United States Code, relating to political activities: That
the Commission is authorized, after consulting the head of the
appropriate department or agency, to designate suitable persons
in the official service of the United States, with their
consent, to serve in these positions. Examiners and hearing
officers shall have the power to administer oaths.
[Sec. 7. (a) The examiners for each political subdivision
shall, at such places as the Civil Service Commission shall by
regulation designate, examine applicants concerning their
qualifications for voting. An application to an examiner shall
be in such form as the Commission may require and shall contain
allegations that the applicant is not otherwise registered to
vote.
[(b) Any person whom the examiner finds, in accordance with
instructions received under section 9(b), to have the
qualifications prescribed by State law not inconsistent with
the Constitution and laws of the United States shall promptly
be placed on a list of eligible voters. A challenge to such
listing may be made in accordance with section 9(a) and shall
not be the basis for a prosecution under section 12 of this
Act. The examiner shall certify and transmit such list, and any
supplements as appropriate, at least once a month, to the
offices of the appropriate election officials, with copies to
the Attorney General and the attorney general of the State, and
any such lists and supplements thereto transmitted during the
month shall be available for public inspection on the last
business day of the month and in any event not later than the
forty-fifth day prior to any election. The appropriate State or
local election official shall place such names on the official
voting list. Any person whose name appears on the examiner's
list shall be entitled and allowed to vote in the election
district of his residence unless and until the appropriate
election officials shall have been notified that such person
has been removed from such list in accordance with subsection
(d): That no person shall be entitled to vote in any election
by virtue of this Act unless his name shall have been certified
and transmitted on such a list to the offices of the
appropriate election officials at least forty-five days prior
to such election.
[(c) The examiner shall issue to each person whose name
appears on such a list a certificate evidencing his eligibility
to vote.
[(d) A person whose name appears on such a list shall be
removed therefrom by an examiner if (1) such person has been
successfully challenged in accordance with the procedure
prescribed in section 9, or (2) he has been determined by an
examiner to have lost his eligibility to vote under State law
not inconsistent with the Constitution and the laws of the
United States.
[Sec. 8. Whenever an examiner is serving under this Act
in any political subdivision, the Civil Service Commission may
assign, at the request of the Attorney General, one or more
persons, who may be officers of the United States, (1) to enter
and attend at any place for holding an election in such
subdivision for the purpose of observing whether persons who
are entitled to vote are being permitted to vote, and (2) to
enter and attend at any place for tabulating the votes cast at
any election held in such subdivision for the purpose of
observing whether votes cast by persons entitled to vote are
being properly tabulated. Such persons so assigned shall report
to an examiner appointed for such political subdivision, to the
Attorney General, and if the appointment of examiners has been
authorized pursuant to section 3(a), to the court.
[Sec. 9. (a) Any challenge to a listing on an eligibility
list prepared by an examiner shall be heard and determined by a
hearing officer appointed by and responsible to the Civil
Service Commission and under such rules as the Commission shall
by regulation prescribe. Such challenge shall be entertained
only if filed at such office within the State as the Civil
Service Commission shall by regulation designate, and within
ten days after the listing of the challenged person is made
available for public inspection, and if supported by (1) the
affidavits of at least two persons having personal knowledge of
the facts constituting grounds for the challenge, and (2) a
certification that a copy of the challenge and affidavits have
been served by mail or in person upon the person challenged at
his place of residence set out in the application. Such
challenge shall be determined within fifteen days after it has
been filed. A petition for review of the decision of the
hearing officer may be filed in the United States court of
appeals for the circuit in which the person challenged resides
within fifteen days after service of such decision by mail on
the person petitioning for review but no decision or a hearing
officer shall be reversed unless clearly erroneous. Any person
listed shall be entitled and allowed to vote pending final
determination by the hearing officer and by the court.
[(b) The times, places, procedures, and form for
application and listing pursuant to this Act and removals from
the eligibility lists shall be prescribed by regulations
promulgated by the Civil Service Commission and the Commission
shall, after consultation with the Attorney General, instruct
examiners concerning applicable State law not inconsistent with
the constitution and laws of the United States with respect to
(1) the qualifications required for listing, and (2) loss of
eligibility to vote.
[(c) Upon the request of the applicant or the challenger or
on its own motion the Civil Service Commission shall have the
power to require by subpoena the attendance and testimony of
witnesses and the production of documentary evidence relating
to any matter pending before it under the authority of this
section. In case of contumacy or refusal to obey a subpoena,
any district court of the United States or the United States
court of any territory or possession, or the District Court of
the United States for the District of Columbia, within the
jurisdiction of which said person guilty of contumacy or
refusal to obey is found or resides or is domiciled or
transacts business, or has appointed an agent for receipt of
service or process, upon application by the Attorney General of
the United States shall have jurisdiction to issue to such
person an order requiring such person to appear before the
Commission or a hearing officer, there to produce pertinent,
relevant, and nonprivileged documentary evidence if so ordered,
or there to give testimony touching the matter under
investigation; and any failure to obey such order of the court
may be punished by said court as a contempt thereof.]
Sec. 8. (a) Whenever--
(1) a court has authorized the appointment of
observers under section 3(a) for a political
subdivision; or
(2) the Attorney General certifies with respect to
any political subdivision named in, or included within
the scope of, determinations made under section 4(b),
unless a declaratory judgment has been rendered under
section 4(a), that--
(A) the Attorney General has received
written meritorious complaints from residents,
elected officials, or civic participation
organizations that efforts to deny or abridge
the right to vote under the color of law on
account of race or color, or in contravention
of the guarantees set forth in section 4(f)(2)
are likely to occur; or
(B) in the Attorney General's judgment
(considering, among other factors, whether the
ratio of nonwhite persons to white persons
registered to vote within such subdivision
appears to the Attorney General to be
reasonably attributable to violations of the
14th or 15th amendment or whether substantial
evidence exists that bona fide efforts are
being made within such subdivision to comply
with the 14th or 15th amendment), the
assignment of observers is otherwise necessary
to enforce the guarantees of the 14th or 15th
amendment;
the Director of the Office of Personnel Management shall assign
as many observers for such subdivision as the Director may deem
appropriate.
(b) Except as provided in subsection (c), such observers
shall be assigned, compensated, and separated without regard to
the provisions of any statute administered by the Director of
the Office of Personnel Management, and their service under
this Act shall not be considered employment for the purposes of
any statute administered by the Director of the Office of
Personnel Management, except the provisions of section 7324 of
title 5, United States Code, prohibiting partisan political
activity.
(c) The Director of the Office of Personnel Management is
authorized to, after consulting the head of the appropriate
department or agency, designate suitable persons in the
official service of the United States, with their consent, to
serve in these positions.
(d) Observers shall be authorized to--
(1) enter and attend at any place for holding an
election in such subdivision for the purpose of
observing whether persons who are entitled to vote are
being permitted to vote; and
(2) enter and attend at any place for tabulating
the votes cast at any election held in such subdivision
for the purpose of observing whether votes cast by
persons entitled to vote are being properly tabulated.
(e) Observers shall investigate and report to the Attorney
General, and if the appointment of observers has been
authorized pursuant to section 3(a), to the court.

* * * * * * *

Sec. 12. (a) Whoever shall deprive or attempt to deprive
any person of any right secured by section 2, 3, 4, 5, [7,] or
10 or shall violate section 11(a), shall be fined not more than
$5,000, or imprisoned not more than five years, or both.
(b) Whoever, within a year following an election in a
political subdivision in which [an examiner has been appointed]
an observer has been assigned (1) destroys, defaces, mutilates,
or otherwise alters the marking of a paper ballot which has
been cast in such election, or (2) alters any official record
of voting in such election tabulated from a voting machine or
otherwise, shall be fined not more than $5,000, or imprisoned
not more than five years, or both.
(c) Whoever conspires to violate the provisions of
subsection (a) or (b) of this section, or interferes with any
right secured by section 2, 3, 4, 5, [7,] 10, or 11(a) shall be
fined not more than $5,000, or imprisoned not more than five
years, or both.

* * * * * * *

(e) Whenever in any political subdivision in which there
are [examiners] observers appointed pursuant to this Act any
persons allege to such an [examiner] observer within forty-
eight hours after the closing of the polls that notwithstanding
(1) their listing under this Act or registration by an
appropriate election official and (2) their eligibility to
vote, they have not been permitted to vote in such election,
the [examiner] observer shall forthwith notify the Attorney
General if such allegations in his opinion appear to be well
founded. Upon receipt of such notification the Attorney General
may forthwith file with the district court an application for
an order providing for the marking, casting, and counting of
the ballots of such persons and requiring the inclusion of
their votes in the total vote before the results of such
election shall be deemed final and any force or effect given
thereto. The district court shall hear and determine such
matters immediately after the filing of such application. The
remedy provided in this subsection shall not preclude any
remedy available under State or Federal law.

* * * * * * *

[Sec. 13. Listing procedures shall be terminated in any
political subdivision of any State (a) with respect to
examiners appointed pursuant to clause (b) of section 6
whenever the Attorney General notifies the Civil Service
Commission, or whenever the District Court for the District of
Columbia determines in an action for declaratory judgment
brought by any political subdivision with respect to which the
Director of the Census has determined that more than 50 per
centum of the nonwhite persons of voting age residing therein
are registered to vote, (1) that all persons listed by an
examiner for such subdivision have been placed on the
appropriate voting registration roll, and (2) that there is no
longer reasonable cause to believe that persons will be
deprived of or denied the right to vote on account of race or
color, or in contravention of the guarantees set forth in
section 4(f)(2) in such subdivision, and (b), with respect to
examiners appointed pursuant to section 3(a), upon order of the
authorizing court. A political subdivision may petition the
Attorney General for the termination of listing procedures
under clause (a) of this section, and may petition the Attorney
General to request the Director of the Census to take such
survey or census as may be appropriate for the making of the
determination provided for in this section. The District Court
for the District of Columbia shall have jurisdiction to require
such survey or census to be made by the Director of the Census
and it shall require him to do so if it deems the Attorney
General's refusal to request such survey or census to be
arbitrary or unreasonable.]
Sec. 13. (a) The assignment of observers shall terminate in
any political subdivision of any State--
(1) with respect to observers appointed pursuant to
section 8 or with respect to examiners certified under
this Act before the date of the enactment of the Fannie
Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006,
whenever the Attorney General notifies the Director of
the Office of Personnel Management, or whenever the
District Court for the District of Columbia determines
in an action for declaratory judgment brought by any
political subdivision described in subsection (b), that
there is no longer reasonable cause to believe that
persons will be deprived of or denied the right to vote
on account of race or color, or in contravention of the
guarantees set forth in section 4(f)(2) in such
subdivision; and
(2) with respect to observers appointed pursuant to
section 3(a), upon order of the authorizing court.
(b) A political subdivision referred to in subsection
(a)(1) is one with respect to which the Director of the Census
has determined that more than 50 per centum of the nonwhite
persons of voting age residing therein are registered to vote.
(c) A political subdivision may petition the Attorney
General for a termination under subsection (a)(1).
Sec. 14. (a) * * *
(b) No court other than the District Court for the District
of Columbia [or a court of appeals in any proceeding under
section 9] shall have jurisdiction to issue any declaratory
judgment pursuant to section 4 or section 5 or any restraining
order or temporary or permanent injunction against the
execution or enforcement of any provision of this Act or any
action of any Federal officer or employee pursuant hereto.

* * * * * * *

(e) In any action or proceeding to enforce the voting
guarantees of the fourteenth or fifteenth amendment, the court,
in its discretion, may allow the prevailing party, other than
the United States, a reasonable attorney's fee, reasonable
expert fees, and other reasonable litigation expenses as part
of the costs.

* * * * * * *

TITLE II--SUPPLEMENTAL PROVISIONS

* * * * * * *

BILINGUAL ELECTION REQUIREMENTS

Sec. 203. (a) * * *
(b) Bilingual Voting Materials Requirement.--
(1) Generally.--Before August 6, [2007] 2032, no
covered State or political subdivision shall provide
voting materials only in the English language.
(2) Covered States And Political Subdivisions.--
(A) Generally.--A State or political
subdivision is a covered State or political
subdivision for the purposes of this subsection
if the Director of the Census determines, based
on [census data] the 2010 American Community
Survey census data and subsequent American
Community Survey data in 5-year increments, or
comparable census data, that--
(i) * * *

* * * * * * *

Markup Transcript

BUSINESS MEETING

WEDNESDAY, MAY 10, 2006

House of Representatives,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:08 a.m., in
Room 2141, Rayburn House Office Building, the Honorable F.
James Sensenbrenner, Jr. (Chairman of the Committee) presiding.
Chairman Sensenbrenner. The Committee will be in order. A
working quorum is present. Pursuant to notice I now call up the
bill H.R. 9, the ``Fannie Lou Hamer, Rosa Parks, and Coretta
Scott King Voting Rights Act Reauthorization and Amendments Act
of 2006'' for purposes of markup and move its favorable
recommendation to the House. Without objection, the bill is
considered as read and open for amendment at any point, and the
Chair recognizes himself for 5 minutes to explain the bill.
[The bill, H.R. 9 follows:]

Chairman Sensenbrenner. H.R. 9 reauthorizes for an
additional 25 years and amends provisions of the Voting Rights
Act set to expire on August 6, 2007. The Voting Rights Act was
enacted in 1965 and reauthorized in 1970, 1975 and 1982, each
time with strong bipartisan support. Like the preceding
reauthorization efforts, this bill has strong support from
Republicans and Democrats alike.
On August 6th, 2005, our Nation celebrated the 40th
anniversary of the VRA, which has been one of the most
important pieces of civil rights legislation ever enacted. The
enactment of the VRA resulted from the efforts of many who
fought to eliminate our country's sad legacy of racial
discrimination and insure that the rights guaranteed by the
constitution were protected for all Americans.
There is no more fundamental right than the right to vote
because in a democracy, only the right to vote can protect all
the other rights. This right is so central to our system of
Government that it is protected by five separate amendments to
our Constitution, including the 14th, 15th, 19th, 24th and 26th
amendments.
History reveals, however, that States and localities have
not always been faithful to the rights and protections offered
by our Constitution. Sadly, some have tried to disenfranchise
African American and other minority voters through means
ranging from violence and intimidation to subtle changes in
voting rules. As a result, many minorities were unable to fully
participate in the political process for nearly a century.
The VRA changed this and successfully transformed our
Nation's electoral process and the makeup of our local, State
and Federal Governments. Since its enactment, the VRA has been
instrumental in remedying past injustice by restructuring the
relationship between States with a history of discrimination
and the Federal Government.
Section 5 prohibits States with a history of discrimination
from changing electoral practices and processes without first
submitting the changes to the Department of Justice, or to the
district court for the District of Columbia. Section 5 helped
ensure minority citizens have an equal opportunity to
participate in our country's political process, and with other
provisions of the VRA has helped increase minority
participation in elections as well as the number of minorities
serving in elected positions.
Last summer, I, along with Ranking Member Conyers and
Congressional Black Caucus Chairman Watt, pledged to have the
VRA's temporary provisions authorized for another 25 years.
Since last fall, the Subcommittee on the Constitution has been
examining the VRA in great detail, focusing on the provisions
set to expire in 2007. During these hearings, the Subcommittee
examined the impact two separate Supreme Court decisions
Bossier II and Georgia versus Ashcroft have had on section 5's
ability to protect minorities from discriminatory voting
changes, particularly in State and congressional redistricting
initiatives.
As a result, the bill includes language that makes it clear
that a voting rule change motivated by any discriminatory
purpose cannot be precleared, and clarifies that the purpose of
the preclearance requirements is to protect the ability of
minority citizens to elect their preferred candidates of
choice.
The Committee record shows that while the VRA has been
successful, our work is not yet complete. Discrimination in the
electoral process continues to exist and threatens to undermine
the progress that has been made over the last 40 years. By
extending the VRA for an additional 25 years, H.R. 9 extending
that the gains made by minorities are not jeopardized. As
previously noted, this legislation has strong bipartisan
support, including that of Speaker Hastert and Minority Leader
Pelosi.
The bill is also supported by many religious and civil
rights organizations, including the leadership conference on
civil rights, the ACLU, MALDEF, the NAACP, the National
Association of Latino Elected and Appointed Officials Education
Fund.
I ask unanimous consent to include in the record a letter
dated May 3rd, sent by the leadership Congress on Civil Rights
and co-signed by an extensive list of civil rights and
religious organizations, and without objection the letter will
be placed in the record at this point.
[The information referred to follows:]

Chairman Sensenbrenner. The majority leader's office has
indicated that H.R. 9 will be considered on the House floor
next week. I strongly urge my colleagues to support this
legislation.
I will now recognize the Ranking Member from Michigan, Mr.
Conyers, for 5 minutes.
Mr. Conyers. Mr. Chairman and Members of the Judiciary
Committee, this is a historic moment for me because I came to
the Congress in 1965 and was able to participate not only in
the three extensions of the act in 1970, 1975 and 1982, but I
was there at the beginning of it, and so I come with a lot of
memories and a lot of reflections, and I am proud to support
this reauthorization that has been the result of incredible
amounts of work from nearly every Member of the Committee, but
in particular, the Chairman, Jim Sensenbrenner, whose strong
commitment to the act, which was equally evident in the 1982
reauthorization. His leadership has been critical to the
legislative success of the act and a testament to the fact that
civil rights is not a partisan issue, indeed, it is a
bipartisan issue.
I also note that one of the people that have worked with
Mel Watt, who is a Member of this Committee and chairman of the
Congressional Black Caucus, is with us, and his name is Wade
Henderson of the leadership conference on civil rights, who has
worked with dozens and dozens of groups until we could finally
get this thing together, and then worked with our Republican
colleagues, the leadership, and here we are today after having
had a bipartisan, bicameral agreement on the east front of the
steps of the United States Capitol, that this was, in fact, as
important a matter as has been said. We haven't reached a
point, but we made incredible, incredible progress.
Section 5, of course the trigger is the heart of the
extension. Then we move to section 203, where we are trying to
get the language minorities, who, in some places, remain
victims of discriminatory voting continued in that for those
who still need language assistance to cast an effective ballot.
May I say, where could we show democracy working more
finely than helping those new citizens get through this most
important responsibility that they now bear. So through a
series of 10 hearings, the Committees compiled a record, the
Chairman and I went to the Senate before Chairman Specter of
Judiciary, and they incorporated into their record our entire
hearings. It was, I think, a very, very important event indeed.
We have a couple of Supreme Court cases that we untangled,
Georgia and Ashcroft and the Bossier decision earlier.
And so what I close with is this, the Voting Rights Act is
one of our Nation's most important civil rights victories. It
memorializes the struggles and the marches and the
understanding that, thanks to John Lewis of Georgia, have come
to understand that this is something that the world is watching
to see how we respond to our own democratic institution, the
one of voting. And so we know that we must continue our efforts
to protect the rights of all voters, and the reauthorization
and restoration of this crown jewel, the Voting Rights Act must
be continued, and I am hoping that we can do it collectively in
a collegial manner, as friendly even as we can to extend this
act at full strength and send it to the other body. I am fully
committed to doing it, just as I was in of 1965.
Thank you, Mr. Chairman. I return my time.
Chairman Sensenbrenner. The gentleman's time is expired.
Without objection all Members may include opening statements in
the record at this point.
Are there amendments. The gentleman from California, for
what purpose do you seek recognition?
Mr. Issa. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 9, offered by Mr. Issa of
California. Add at the end, the following. Section, study and
report. The comptroller general shall study the implementation,
effectiveness and efficiency of the current section 203 of the
Voting Rights Act of 1965 and alternatives to the current
implementations consistent----
Chairman Sensenbrenner. Without objection the amendment is
consider as read. The gentleman from California is recognized
for 5 minutes.
[The amendment follows:]

Mr. Issa. Thank you, Mr. Chairman. I offer this, I believe,
noncontroversial amendment first and foremost, because I
support the Voting Rights Act reauthorization. I believe that
it is an important continuing American legacy trying to reach
as many people as possible so they can exercise their right to
vote.
But I also believe that in the 21st century the
technologies and the ability to do a better job, perhaps more
efficiently and effectively, at the same time exists. Just as
the blind early on--just as the blind early on----
Mr. Conyers. Would the gentleman from California yield to
me just briefly?
Mr. Issa. Yes.
Mr. Conyers. I wanted to indicate that we didn't know if
there were going to be amendments or not, but this amendment
has been reviewed, and I can report to you that it is accepted
on our side. I commend you for it, as a matter of fact.
Mr. Issa. Thank you.
Chairman Sensenbrenner. Would the gentleman yield to me?
Mr. Issa. Yes, I will, Mr. Chairman.
Chairman Sensenbrenner. I reviewed it as well and I agree
with Mr. Conyers.
Mr. Issa. Then I will quickly take yes for an answer and
simply say that I believe that we will find ways to do even a
better job of what we have been doing and trying to do since
1965. With that, I yield back.
Mr. Watt. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from North Carolina.
Mr. Watt. I wanted to inquire.
Chairman Sensenbrenner. Recognized for 5 minutes.
Mr. Watt. I want to inquire between now and the floor we
might look at whether the 1-year period is the right time. I
think there is a lot of information about the effectiveness of
203 going back, but we have got an election this year and a big
presidential election in 2008.
Chairman Sensenbrenner. Will the gentleman yield.
Mr. Watt. Yes.
Chairman Sensenbrenner. How long does the gentleman suggest
that we have this study go out for?
Mr. Watt. Well, I am not sure. I want to leave open the
possibility that----
Chairman Sensenbrenner. I was going to ask unanimous
consent to strike 1 year from line 7 and insert another figure.
Do you have a good idea what the figure should be?
Mr. Watt. I think it ought to be right after the 2008
presidential election, because we will have a better body of
information to analyze.
Mr. Issa. Would the gentleman yield? My intention with this
was, in fact, that we would supplement after an initial 1-year
report, that we would expect to go back out with an additional
study that, in fact, I don't expect they will have all the
answers, but this body will begin looking at the future of ways
to do what the Voting Rights Act insists that we do, and do it
better.
Mr. Watt. With that understanding and that record, I think
it would be fine, Mr. Chairman. The challenge, I think we face
additionally, is to convince the Senate to put this in their
bill, because we are trying to keep this bill.
Chairman Sensenbrenner. Will the gentleman yield back?
Mr. Watt. I yield back.
Chairman Sensenbrenner. For what purpose does the gentleman
from New York seek recognition?
Mr. Nadler. Mr. Chairman, I have no objections to Mr.
Issa's amendments. I was looking forward to hearing from him
what new technological developments he thinks affects this.
Mr. Issa. If the gentleman would yield.
Mr. Nadler. Yes, I would.
Mr. Issa. A good example are the Internet-based universal
translation devices that could, in fact, be certified. So
instead of having an argument over whether there are sufficient
Laotians in some area, that we may be able to have a national
database for translation. In addition, the ability to convert
text to voice in multiple languages, particularly for the blind
and those who do not have reading skills in any language.
Mr. Nadler. Reclaiming my time. It is very interesting. I
ask if the gentlemen would yield for a further question. It is
your thought that if some of this technology works out, that
maybe we would instead of requiring multiple languages on the
ballot, require that this technology be at the polling places?
Mr. Issa. I think, if the gentleman would yield, I believe
that what would begin to happen is we would begin to empower
and probably fund with Federal funds these technologies being
made available, certified, overseen and then they would become
still a States issue, but I think a lot of States would quickly
adopt.
Mr. Nadler. I thank the gentleman. I yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from California, Mr. Issa.
Those in favor will say aye. Opposed, no. Ayes appear to have
it. The ayes have it. The amendment is agreed to. Are there
further amendments?
Ms. Jackson Lee. Mr. Chairman, I have an amendment at the
desk, 248.
Chairman Sensenbrenner. The Clerk will report amendment
248.
The Clerk. Amendment to H.R. 9, offered by Ms. Jackson Lee
of Texas. Add at the end the following: Sec. 9. additional
violation of right to vote. Section 2 of Voting Rights Act of
1965 is amended by adding at the end the following. Subsection
C, a per se violation of subsection A shall be established
where a jurisdiction covered by section 5 of this Act
redistricts its legislative or congressional districts in mid
decade, provided that such redistricting take place after
legislative or----
Chairman Sensenbrenner. Without objection the amendment is
considered as read and the gentlewoman from Texas is recognized
for 5 minutes.
[The amendment follows:]

Ms. Jackson Lee. I thank the distinguished Chairman and the
Ranking Member. I appreciate this opportunity to explain my
amendment, and my amendment makes it an automatic or per se
violation of the Voting Rights Act for a covered jurisdiction
like my home State of Texas to redistrict its legislative or
congressional districts in the mid decade. After those----
Chairman Sensenbrenner. The Committee will be in order. The
gentlewoman from Texas.
Ms. Jackson Lee. I did want to mention to my colleagues
that I have several amendments at the desk, but I will be
listening keenly to my other colleagues as well.
Let me just say that like my home State of Texas, to
redistrict its legislative or congressional districts in the
mid decade after those districts had already been redrawn in
that decade and either enacted into State law or approved by a
Federal court, and might I say that Texas is a Voting Rights
Act State.
Before I explain my amendment, let me express my sincere
appreciation to the Chairman and Ranking Member for the
generally bipartisan cooperation in shepherding this historic
and vital legislation to this point. Let me thank the many
organizations and particularly the leadership of Wade Henderson
and a number of other very instructive groups. Let me thank my
colleague, Representative Mel Watt and the Members of this
Judiciary Committee.
This hits home very hard and very pointedly and the
enormous impact of the mid districting of our congressional
districts in the State of Texas symbolizing what could happen
across the Nation brought the acts of democracy and the Voting
Rights Act in the State of Texas to its knees.
The Voting Rights Act of 1965 is no ordinary piece of
legislation. For millions of Americans and many on this
Committee the Voting Rights Act act of 1965 is a sacred
treasure earned by the sweat and toil and tears and blood of
ordinary Americans who showed the world it wasn't impossible to
accomplish extraordinary things. I think that it is
particularly of note that the Honorable Barbara Jordan who sat
in this Committee was one of the Members who modified along
with the Judiciary Committee to add the language provision.
This is how important this language and this Voting Rights Act
is to all of us.
The Voting Rights Act of 1965 as amended which we will vote
to reauthorize today was enacted to remedy a history of
discrimination in certain areas of the country. Presented with
a record of systemic and systematic defiance by certain States
and jurisdictions that could not be overcome by litigation,
this Congress led by President Lyndon Johnson from my own home
State of Texas took the steps necessary to stop it.
It is instructive to recall the words of President Johnson
when he proposed the Voting Rights Act of 1965. Rarely are we
met with a challenge to the values and the purposes and the
meaning of our beloved Nation. The issue of equal rights for
American Negroes is such an issue. The command of the
constitution is plain. It is wrong, deadly wrong to deny any of
your fellow Americans the right to vote in this country. We are
gratified that it has been expanded to include many other
Americans. The Voting Rights Act of 1965 represents our country
and this Congress at its best. It matches our words to deeds,
our actions to our values, and, as is usually the case, when
American acts consistent with its highest values, success
follows.
Without exaggeration, the Voting Rights Act has been one of
the most effective civil rights laws passed by the Congress. In
1964, there were approximately only 300 African Americans in
public office, including just three in Congress; few, if any,
black officials were elected anywhere in the south, and you can
find the enormous impact on Hispanic-elected officials and
voters.
Today, there are more than 9,100 black elected officials,
including 43 Members of Congress, the largest number ever. The
act has opened the political process for many of the
approximately 6,000 Latino public officials that have been
elected and appointed Nationwide, including 263 at the State
level, 27 of whom serve in Congress; Native Americans, Asians
and others who have been historically impacted by these harsh
barriers.
Mr. Chairman, I hail from the State of Texas, the Lone Star
State and a State that sadly had one of the most egregious
records of voting discrimination against racial and language
minorities. Texas is one of the Voting Rights Act's covered
jurisdictions. And then, of course, we experienced this, if you
will, heinous act of redistricting that impacted, if you will,
the impact of African American and Hispanic Congresspersons. I
am only one of three African American women from Texas that
serve in the Congress of the United States, and one of only two
to sit on this Committee. But we hold this seat with the idea
of the Voting Rights Act. And I sit here as the heir of the
Civil Rights Movement, a beneficiary of the Voting Rights Act,
and my faith----
Chairman Sensenbrenner. The time of the gentlewoman has
expired.
Ms. Jackson Lee. My amendment simply, Mr. Chairman, if I
might just finish this sentence, my amendment is simply it is
obviously the right thing to do. It declares that it is an
automatic per se violation of the Voting Rights Act for a
covered jurisdiction to redistrict its legislative or
Congressional district in the mid decade after those districts
had already been redrawn in that decade and either enacted into
State law or approved by a Federal court. This, I believe, is
in compliance with the Voting Rights Act that we now have
before us, and I would ask that we have the ability to make it
more secure by adding this amendment.
Chairman Sensenbrenner. The gentleman from Michigan.
Mr. Conyers. Mr. Chairman, I am extremely reluctant after
all of the great comments passed by the gentlelady from Texas
to preserve any support for this amendment. I oppose it because
Texas redistricting litigation is before the courts right now,
and I think to write this into a 25-year bill would be totally
inadequate and I reluctantly have to oppose the amendment.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Conyers. Yes, I do yield back.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment.
This bill is the subject of lengthy negotiations and it is
an agreed upon bill, and this amendment is a deal breaker, and
I will be very blunt in saying that. If you look at the
litigation history of the Voting Rights Act following its 1965
enactment and its 1972 and 1982 extensions, the court
repeatedly stated that for Congress to override the
prerogatives of States in the election, there has to be an
extensive legislative record and findings drawn from that
record to show that there is discrimination.
As a result, both the three times in the past when the
Voting Rights Act was passed and reauthorized, as well as this
time, there has been that extensive legislative record. There
has not been a record that has been created on this subject.
And to put this into section 5 of the Voting Rights Act, in my
opinion, would end up jeopardizing the constitutionality of it
because Congress has made no findings.
I would also point out that the record or the amendment
that has been offered by the gentlewoman from Texas is probably
erroneously drafted because what it does do is it locks in the
current Texas redistricting, if it should be enacted prior to
the time a court should decide the case, if the court decides
the case in favor of the plaintiffs and against the State of
Texas.
So for all of these reasons I would think it is not an
amendment that should be agreed to.
I yield to the gentleman from Texas.
Mr. Gohmert. I would also like the record to note the
current Texas redistricting plan added one African American,
minority district that was not there, and to say that per se it
violated the Voting Rights Act would actually be quite a snub.
It would seem to African American Democrat Judge Al Green, who
I think is a great addition to our Congress, and I would hate
to say per se he is a bad thing for the African American
community.
I yield back, Chairman.
Chairman Sensenbrenner. You are going to yield back the
balance of my time.
The question is on--the gentleman from North Carolina Mr.
Watt.
Mr. Watt. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I recognize throughout the
discussions leading to the introduction of this bipartisan and
bicameral bill that there would be people both on the Committee
and outside the Committee who have individual State interests,
local interests, and national interests that would go beyond
the scope of this bill, some of them possibly more
appropriately addressed in the Help America Vote Act, some
addressed in other contexts.
I think we have reached a bill that is a very delicate
balance, and in the interest of maintaining that balance I am
going to ask Ms. Jackson Lee, if she might consider withdrawing
this amendment so that we can keep the balance that has been
neglected and maintained, avoid the possibility of ending up
with a divisive fight with the Senate, avoid the possibility of
prolonging the processing of this important extension bill by
possibly having to go to conference, and I am going to ask not
only Ms. Jackson Lee, but all of our Members to understand that
the magnitude of the national interest here far exceeds what
may be going on in any particular State or jurisdiction.
We need to send a resounding message to America that the
importance of the vote to every citizen in this country is
important and is to be protected. And in that spirit I would
ask the gentlelady if she might consider withdrawing her
amendment at this point and I would be happy to yield to the
gentlelady for the response.
Ms. Jackson Lee. I thank the gentlemen very much. If I
might just briefly say I think it is well known of the
devastating impact to the voters of Texas that generated out of
mid-term redistricting, even to the extent that we saw the
staff of the Justice Department's position obliterated by
political appointees.
Let me just say this; that in that State we saw the
diminishing of African American vote and the loss of impact of
the Latino and Hispanic vote, if you will. So it is of enormous
importance to us. Frankly, if we can draw upon the good graces
of our colleagues on both sides of the aisle, frankly, to wait
on these interests, your inquiry, Mr. Watt is one that I will
consider.
I will close by saying this; that we remember the African
proverb when the bull and elephants fight, the ground gets
trampled on. I believe that when we had this redistricting mid-
term, we were trampled on, and that is the rights of African
Americans, Hispanic, other racial minorities and language
minorities.
But because of the intent to move forward and the consensus
that has been established and my desire for this voters right
act and my constituents' desire for it to be reauthorized
without the baggage of amendments, without compromises, then at
this time, as Mr. Conyers has said, I will pursue the legal
remedies in the courts, and I will look to write legislation on
this specific mid-term redistricting and encourage the civil
rights organizations to support me in this effort and with that
I ask unanimous consent to withdraw this amendment.
Chairman Sensenbrenner. The amendment is withdrawn. The
gentleman from Iowa, Mr. King.
Mr. King. Thank you, Mr. Chairman. I have an amendment at
the desk, 109.
Chairman Sensenbrenner. The Clerk will report the
amendment.
The Clerk. Amendment to H.R. 9, offered by Mr. King of
Iowa, strike section 7 and 8.
Chairman Sensenbrenner. The gentleman from Iowa is
recognized for 5 minutes.
[The amendment follows:]

Mr. King. Thank you, Mr. Chairman. My amendment 109, and it
is in conjunction with the King-Inglis amendment, it simply
allows the sunset of sections 203 and 4(f)(4). So it strikes
section 7 and 8 of the bill, the Voting Rights Act
reauthorization, and allow them to automatically expire in
2007. It would not prohibit voters who need assistance from
having help to vote. Current law states, and I will quote: Any
voter who requires assistance to vote by reason of blindness,
disability or inability to read or write may be given
assistance by a person of the voter's choice. This allows
people, including limited English-proficient persons, who are
not able to read an English language ballot, to have assistance
in the voting booth. This approach is preferable to the
requirements in section 203 and 4(f)(4), because it puts the
burden to understand English ballots on U.S. citizens
exercising their right to vote, not on the taxpayers of
America. It also allows the voters to choose who will help him
or her in the voting groups. My amendment ends the significant
growing unfunded mandated on counties an localities. The number
of counties required to provide election materials in foreign
languages has increased dramatically.
In 1975, only a relatively handful of counties in a few
States were covered under sections 203 and 4(f)(4). Today,
nearly 300 counties and municipalities in 30 States across the
country to hire bilingual poll workers and produce election
materials in foreign languages. This number will only increase
after the 2010, 2020 and the 2030 censuses, because the
reauthorization extends them for 25 more years.
Reauthorizing the multilingual voting mandate for 25 years
contradicts our immigration law, because knowledge of English
is a condition for naturalization. Since 1907, Congress has
required candidates for naturalization to demonstrate an
understanding of the English language, including an ability to
read, write and speak English in the ordinary usage of the
English language.
In order to vote, a person must be a U.S. citizen. Our
naturalization standard was intended to ensure that immigrants
are able to fully participate in our democratic process when
they naturalize. The multilingual voting requirements were
always intended to be temporary. The multilingual election
requirements in 203 and 4(f)(4) of the current Voting Rights
Act were not part of the original VRA, and were always intended
to be a temporary measure. They were only added by the VRA in
1975, 10 years after the original act became law, and they are
designed for a specific purpose to automatically expire in
2007.
That is what my amendment does, allows them to expire in
2007. My amendment fixes an historic aberration. For most of
our Nation's history, we have expected all Americans including
new immigrants to vote in English. This encouraged new
immigrants to learn English to assimilate in order to have full
access to full freedom and economic opportunity available in
America.
At a time when the U.S. is experiencing record immigration,
it is essential that we return to this tradition of encouraging
assimilation.
The King-Inglis amendment also reduces the likelihood of
errors. During the 2000 general election, six polling places
with significant Chinese immigrant population in Queens, New
York, had Democratic translated in Chinese to Republican and
Republican to Democratic on their ballots, causing confusion
and one would presume voter error.
Smaller populations of limited English proficient voters do
not get bilingual ballots. They should be provided
constitutional equal protection under the 14th amendment by
allowing ballots only in one language, because that is the only
way we can guarantee equal protection, is one single standard,
the standard of English. The next leader of the free world may
be chosen by non-English speakers.
For these reasons and many more, I encourage the Members to
support the King-Inglis amendment, which would allow for the
sunset of bilingual ballots and return us back to the
assimilation standard that this country has so historically
stood by for these centuries. Thank you, Mr. Chairman, and I
would yield back.
Chairman Sensenbrenner. The Chair recognizes himself for 5
minutes in opposition to the amendment.
The Chair thanks the gentleman from Iowa for bringing this
issue up before the Committee, and let me say, I don't think
the time has come to get rid of bilingual ballots, for a couple
of reasons. First of all, and probably most importantly, there
are a number of United States citizens who are born here, and
particularly those who have been residents of Puerto Rico where
Spanish is the language that is used, and should they move to
the mainland U.S., they are just as much U.S. citizens as
everybody else. And even though they are not functional in
English because of where they were raised, they are entitled to
vote in their State or their locality of residence. And I
believe that they should have access to bilingual ballots, if
there is a concentration of them.
The second point that I would like to make is that here we
are not dealing with illegal immigrants, we are dealing with
United States citizens, and they are people who have either
attained citizenship by reason of birth in the United States,
and that includes places like Puerto Rico and Guam, or have
been naturalized.
Now I think that probably the need for continuation of
bilingual ballots is perhaps an indictment as to the lack of
effectiveness of bilingual education. English is the language
of commerce in this country, whether we pass a law saying that
that is the case or not, and no one can really achieve the
American dream unless they are able to function in English.
Should we close the door to understanding a ballot because
of a failure of our educational system or because of the fact
that people have moved to a place where English is commonly
used in the United States from a place in the United States
where English is not commonly used? I would answer that
question no, and for that reason, I think that the bilingual
ballot provisions that are contained in the compromise in
section 203 should not be stricken, as the gentleman from
Iowa's amendment proposes, and consequently I would urge its
defeat.
Mr. Conyers. Could the Chairman yield to me?
Chairman Sensenbrenner. I yield.
Mr. Conyers. I won't need the time. But I agree and come to
the same conclusion as the Chairman, but with this reasoning:
The numbers of eligible Latino voting is still way behind their
African American and white counterparts, and we also have an
extremely low number of Latino elected officials. So bilingual
assistance is still viable and necessary. The other reason,
ladies and gentlemen, is that the Asian American populations
are experiencing the same problem.
I conclude by merely pointing out that the costs are very
modest, if there are any costs at all. When we hire a bilingual
poll worker, they are paid the same as other poll workers. And
so it seems to me that from a cost basis and from a need basis,
we don't need this amendment; we need to continue on with
section 203 in its presents form.
Ms. Lofgren. Would the gentleman yield?
Mr. Conyers. I would like to speak briefly in support of
the proposition just outlined by the Ranking Member and note
that in my congressional district, there is the largest
percentage of Americans of Vietnamese descent of any
congressional district in the country, and these are patriotic
Americans. But especially for the older people, English has
been learned to become naturalized, but in California, we have
these very complicated initiatives, and it is really very, very
helpful for people to be able to read it in their first
language instead of their second language.
I thank the gentleman for yielding.
Chairman Sensenbrenner. The Chair yields back whatever time
he has left.
The gentleman from Virginia, Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I want to
thank you and Chairman Chabot and the Ranking Members for
holding extensive hearings on this issue because we have a
hearing record and the record is clear, if you provide the
assistance, the voter participation will go up. If you remove
the assistance, the voter participation will go down. There is
no evidence presented to contradict that finding, nor is there
any evidence that I remember of mistakes being made. That is
new information.
But as the gentleman from Michigan has indicated, there is
virtually no cost to providing this assistance. You have got to
hire a poll worker anyway. If you have a significant number of
people who speak another language, it makes sense to hire
somebody who speaks both languages.
Mr. Chairman, this only applies when there is a critical
mass of voters in that district. Five percent, or 10,000 voters
are enough to affect an election and enough where encouraging
or discouraging voter turnout might reasonably affect the
outcome. Those in power, we don't want to give those in power
the ability to jury-rig the election by virtue of the fact they
can discourage certain workers.
A lot has been said about the need for people to learn
English. The hearing record reflects that there is a long
waiting list for people who are trying to learn to become for
fluent in English. If we are going to apply for resources to
get rid of these waiting lists, that is a political decision.
The way people affect that decisions by voting. If you are
denying them the right to vote or discouraging the right to
vote, that makes no sense. The more they vote, the more English
they will be able to learn because they will vote for those
provisions.
Mr. Chairman, the bottom line is that the assistance works,
it increases voter participation. The point of the this bill,
the Voting Rights Act is to encourage participation, and
section 203 is clearly consistent with that desire and
inconsistent with this amendment. I would hope that we would
defeat this amendment, and I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Smith.
Mr. Smith. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Smith. Mr. Chairman, I appreciate your and the Ranking
Member's collaborative efforts on this bill, and understand
that the product is the result of a long negotiate process. I
also appreciate Mr. King's amendment on the subject of
bilingual ballots and I intend to support the King amendment as
well as the underlying bill.
Our democracy rests on the foundation of the right to vote.
The Voting Rights Act has succeeded in helping to guarantee
that right over the last 40 years. It has enabled citizens who
are eligible to vote, to do so.
The Voting Rights Act has moved America from a place where
people who supported the right of minorities to vote were being
murdered, to a place where over 123 million citizens including
minorities voted in the last national election.
Like others though, I have concerns about 2 sections of the
Voting Rights Act and whether they are necessary in their
current form. First, I am concern that bilingual ballots are
required whether there is a demonstrated need or not. Also, if
you were born in America, you should know English. If you are a
naturalized citizen, you should have passed an English
proficiency test.
Second, I am concerned that the preclearance requirements
overly burden many jurisdictions. We should not automatically
apply these requirements to jurisdictions that no longer
disenfranchise minority or other voters. We should make
allowances for jurisdictions across America that no longer
engage in illegal or discriminatory practices.
In 1982, Congress added a process that allows jurisdictions
to opt out of the requirements if their application was granted
by the D.C. district court, but the process is difficult, and
in some respects, impractical, which is one reason why only a
few jurisdictions have qualified to opt out.
Mr. Chairman, I look forward to the time when the opt out
provisions will be used more successfully. Mr. Chairman, I
support the goal of the underlying legislation and hope that
during the legislative process, we can make the changes
necessary to have a more workable Voting Rights Act, and, Mr.
Chairman, I will yield balance of my time to the gentleman from
Iowa, Mr. King.
Mr. King. I thank the gentleman from Texas for yielding,
and appreciate the opportunity to make a couple of points and I
agree with our remarks made by the Chairman with regard to some
of the reality in places like Puerto Rico. But I would point
out that there has been for a long time a requirement to teach
English in the schools in Puerto Rico and the odds of finding
people there who are not proficient enough in English to
understand a ballot are diminishing by the year.
It becomes less and less essential, and I would speak to
the issue, if they can't understand the ballot well enough in
English, I still remind the Committee an individual has the
opportunity to bring a person of their choice into the polling
booth.
Then I would add that the issue of bilingual poll workers
being paid the same; they are hard to find. Sometimes it takes
quite a lot of money to encourage someone to come in there. I
would submit if they are paid the same, perhaps everyone gets a
raise because the supply and demand. But they aren't always
available.
A third thing would be that if you cannot understand the
ballot in English, and you can't learn to understand the ballot
in English, even though you can bring someone into the polling
booth, how does a voter determine their judgment on how they
make a selection on perhaps who would be the next leader in the
free world. If you can't understand the language, then how do
you understand the culture, how do you make that evaluation.
I would submit that 528 different decisions made in Florida
in the year 2000 would have given a different electoral result,
and I would also submit that that result may have been
different had we seen this provision of the Voting Rights Act,
the importance Voting Rights Act expire.
I encourage support of this amendment and yield back to the
gentleman from Texas, Mr. Smith.
Mr. Smith. Mr. Chairman, I will yield back as well.
Chairman Sensenbrenner. The gentleman from New York, Mr.
Nadler.
Mr. Nadler. Thank you, Mr. Chairman.
Mr. Chairman, I rise in opposition to this amendment. We
used to have literacy tests in this country on the grounds that
only people who we thought were literate in the English
language should be able to vote. We have now determined that
that was discriminatory, and no one, I presume, on this
Committee would defend that today, at least publicly.
Now we have this amendment and this question before us.
There are people in this country, Native Americans, people born
in Puerto Rico, people who are legal immigrants who came here
who are American citizens, all of whom had to take an English
exam, civics exam to become citizens, except for those in
Puerto Rico because they were already, but who are not as
comfortable in English.
I have at my house a history of the United States that ends
in 1917 in Yiddish and English. It is the book my grandparents
studied for their citizenship exams. They only spoke Yiddish at
home until they died. My parents only spoke Yiddish when they
wanted to keep a secret from the kids. My brothers and I don't
speak Yiddish, for obvious reasons.
Why would it have been harmful if we made it a little
easier for my grandparents to vote by having a bilingual
ballot. Section 203--and today's immigrants are no different.
Section 203 simply says we have a concentration of foreign
language proficient, less English proficient speakers in one
district, then you should bilingual help there.
The gentleman asks how are they supposed to know how to
vote. We publish newspapers in this country in something like
300 different languages. You don't have to read, as much as I
hate to say it, The Washington Post or New York Times to know
what you are doing. There are plenty of foreign language in
Spanish, Russian and Chinese, and God knows what in this
country that do as good a job at reporting, some of them.
So the question really is, and Mr. Scott talked about how
when you have this assistance, the turnout goes up, when you
don't, it goes down. Do we want to discourage or encourage
American citizens who want to vote because we are not sure they
would vote for the right people. That is not worthy of this
House. I had assumed that we weren't going to be offering
amendments to this section today. I have an amendment prepared.
I have a couple hundred thousand in New York and elsewhere
now, people who immigrated starting under Ronald Reagan from
the former Soviet Union. They speak Russian and English. They
are not eligible for the bilingual assistance because Russian
is not an Asian language. I think it should be. I prepared an
amendment for that. I wasn't going to offer it because of an
understanding we shouldn't be tampering with this, and I may
not, but if we start amending section 203, I may offer that to
make 203 even better than it is.
It is a perfectly fine section now. And to go backwards to
say that we should make it harder for people to vote, harder
for them to understand, and now they all speak English, at
least to the degree necessary to pass their citizenship exam.
No one has repealed that section. Why would we want to make it
harder for people to vote unless we think we know better about
who they should vote for? So I pose this amendment.
Mr. Conyers. I just want to commend the gentleman because
he has brought his personal perspective and his family and also
his reluctance to take more time as we move toward some votes
on the floor that would prevent us from concluding with this
measure today. And I thank the gentleman again. I yield back.
Mr. Nadler. I yield back.
Chairman Sensenbrenner. The gentleman from Indiana, Mr.
Hostettler.
Mr. Hostettler. Mr. Chairman, I move to strike the last
word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Hostettler. Mr. Chairman, I would like to voice my
support for the King-Inglis amendment. As has been mentioned
several times before, some people would suggest that voting is
the most precious right that we encounter in America. I would
suggest that probably even beyond that is having citizenship
bestowed upon us at birth or as a result of naturalization,
and, as has been mentioned, the process of naturalization
requires a certain level of proficiency in English, and it was
suggested earlier I guess that there is some implicit notion of
bigotry in our naturalization process because it requires a
proficiency of literacy in the English language. I don't think
that is what was meant to be said but that was effectively what
was said.
I believe that as we look toward the issue of voting, that
as individuals who wish to become citizens or wish to become as
citizens proficient in English, that it is a tremendous prize
to be able to go into the polling place and use that English
language, the de facto new native tongue in the process of
exercising that very blessed right, and that is the right to
vote.
So I do not believe that it is a great thing; it is a
tremendous burden to require individuals to exercise that right
of voting in their newly acquired, in the case of naturalized
citizens, native tongue, or in the native tongue in which they
are born. It is what we have determined over many years in this
country to be the native tongue, and I believe that it is time
for this particular provision to be sunsetted and to be
eliminated.
And with that, Mr. Chairman, I yield back the balance of my
time.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman and Members.
I rise in opposition. I move to strike the last word. I rise in
opposition to this amendment. I know that there are Members who
have all kinds of immigration concerns. I, first, would like to
ask my colleagues not to use this bill to address your concerns
about immigration and immigration reform.
As it has been stated over and over again, a lot of work
went into getting this bill before us today in the shape and
form that it is, with a lot of cooperation from both sides of
the aisle. And so I think that this amendment would not only
violate the kind of cooperation that has been seen in getting
this bill before us, but there are other opportunities to deal
with immigration concerns.
Let me finally just say it was alluded to by my colleague
from California that at one time, minorities were prevented
from voting by having to pass a literacy test. For those people
who never had the opportunity to go to school, to be educated,
they were denied the right to vote.
As we look at trying to make sure that we are fair to all
Americans, we don't say that the blind who cannot see or cannot
read or understand Braille cannot vote. We don't say that
certain handicapped people who may have handicaps that would
prevent them from being able to act in a total and complete way
cannot be able to vote. And I think that this would be so
discriminatory, this would single out Americans who for
whatever reasons are not as proficient in English language and
say that somehow they are less Americans and they should not be
able to vote. I don't think we want to do that. And I think for
those people who have worked hard to try and preserve the work
of the civil rights movement, that this would certainly undo
the kind of agreements entered into to try to do the right
thing in this authorization.
Let me say also before I close, that this bill is not
everything that I would have it be. There are a lot more things
that I would like to see. Even though this Voting Rights Act
has helped minorities to be able to vote without the kind of
interference that we saw during the days of rampant
discrimination, I want you to know we are still fighting a lot
of things at the polling place.
All of us can remember that there was a database that was
put together identifying people as felons down in Florida,
people who have never even been arrested before. This does not
address that and we know that. We still have voting machines
with no paper trail. This does not address that. And we know
that.
We know that there have been at least two cases that were
brought before the Attorney General and the Justice Department
that they precleared, one of which the courts found was
discriminatory, and I believe that was the case in Georgia
where the requirements for identification just absolutely threw
many of us for a loop.
And this amendment that was attempted by Ms. Jackson and
withdrawn was an amendment that certainly I could have
supported, because of the way that redistricting is being done
in order to eliminate the ability for certain people to
participate through the redistricting efforts.
So there is a lot that I would have liked to have done in
order to deal with the new tricks, in order to deal with the
new obstacles, in order to deal with the creative ways by which
people get together and decide they are going to eliminate the
ability for some people to vote. But I am not doing that. I am
not addressing this legislation with any amendment because I
think it is important to preserve the basic provisions of the
Voting Rights Act.
I would ask my friends on the opposite side of the aisle to
not undo the tremendous cooperation that has taken place in
order to get this reauthorization bill before us and not to
attempt to address this issue in this way.
So I would ask my colleagues to please vote against this
amendment, and I yield back the balance of my time.
Mr. Gohmert. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Texas, Mr.
Gohmert.
Mr. Gohmert. Thank you, Mr. Chairman.
First, I rise in support of Mr. King's amendment----
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Gohmert.--but I wanted to commend the gentleman from
New York. It sounds like the inference by Mr. Nadler was that
he would like to see the Voting Rights Act applied across the
northeastern States, and I would very much like to see that as
well. I would like to see it applied all across the country,
not just to a selected group of States. I think what has been
good for some States would be good for all the States.
Mr. Nadler. Would the gentleman yield for a second?
Mr. Gohmert. Yes, sir.
Mr. Nadler. It does apply in my city.
Mr. Gohmert. But I would like to see it all across the
board, all across the northeast. I don't know if Yiddish would
be added to the ballots in those situations, but that could
certainly be looked at.
But I would just point my friends in the direction of what
I believe is a subtle form of bigotry that most people don't
realize that they have engaged in. I have a friend there in
Tyler, Texas, Gus Ramirez, whose parents both came over from
Mexico; and they started a restaurant in Tyler. There was a
rule in the Ramirez house that Mr. Ramirez put in place: None
of the kids could speak Spanish at home. Mr. Ramirez made the
point because he said, if you are going to be successful in
this country, if you are going to have good jobs and do well,
you need to speak English and you need to speak it well.
And what I have seen is this encouragement by people who
intend to be compassionate, they intend well, they want well,
but they continue to lure people into speaking Spanish for
their lives, which actually condemns them to have nothing but
manual labor in most cases for the rest of their lives.
If we really care, what is more compassionate in the eagle
world? Is it more compassionate if a mother eagle continues to
feed the babies for their whole lifetime thinking, oh, how
terrible it would be to push them out of the nest? Or is it
more compassionate to have enough strength of heart to push
them out of the nest and force them to fly?
I would say it is more compassionate, though tougher, to
push the eagle babies out, let them fly, let them reach their
true potential; and I would submit that the subtle form of
bigotry in luring people to continue to speak Spanish for their
lifetime ensures that they will not rise to their full
potential in this country. They could, some of these--they are
so bright. You talk to these people. They could have any
position in this country and do it well if they were allowed
and forced to communicate in the language that would allow them
to soar.
So I would support the gentleman's amendment as just one
small way to help encourage people to reach the true potential
that people have in this country, and I would yield back.
Chairman Sensenbrenner. The question is on agreeing to the
amendment offered by the gentleman from Iowa.
Ms. Sanchez. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from California,
Ms. Sanchez.
Ms. Sanchez. Thank you, Mr. Chairman. I move to strike the
last word.
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Sanchez. Thank you, Mr. Chairman.
It is a great opportunity to allow me to set the record
straight for some of my colleagues who have risen in support of
this amendment. I want to start by taking exception to the
comment made by the gentleman from Texas, Mr. Smith, that
people born in the U.S. should know English.
Well, it is certainly the case that that would be the goal
that everybody born in the U.S. would speak English fluently,
but three-quarters of those who use language assistance at the
polling place are native-born. And I might remind the gentleman
that in Arizona there is a school district that is currently
being fined half a million dollars a day for their failure to
provide adequate English instruction to the kids.
So children who are not being taught in our family school
system and who are being harmed by that would then be double
harmed at the polling place, because you would yank from them
the language assistance that would allow them to perhaps be
fully participating members of society and vote for a regime
that could probably fix the school systems.
Number two, I might point out to my colleagues who support
the King amendment that there is typically a higher level of
proficiency required to vote in English than there is to pass
the citizenship test in English. And if you ask me how I know
that, it is because both of my parents are naturalized
citizens. My mother is an elementary school teacher, so she is
very proficient in English. In fact, she teaches it to young
students. But she often prefers her election materials in
Spanish because many of the complexities and subtleties of the
vast ballot initiatives that California sees in every election
cycle with their double negatives, sometimes triple negative
languages are very difficult for her to understand.
So I am offended that people would say that if you can
speak English well enough to pass a citizenship exam, you don't
need language assistance at the polls. I think that is false.
And to Mr. Gohmert, I think you would say you have cited
one example of an Hispanic family who sought to teach their
family English. I want to give you another example, which is
the example of the household I grew up in, where my parents
said you will learn English in school and we will speak Spanish
at home and when you grow up you will know both; and I don't
think that that has kept me or my sister from reaching our full
potential in this society. It depends on the degree of support
and it depends on the degree of effort that you are willing to
make.
So one size does not fit all here, and I would ask my
colleagues to please vote against the King amendment. And I
yield back to the Chairman.
Ms. Wasserman Schultz. Mr. Chairman.
Chairman Sensenbrenner. The gentlewoman from Florida, Ms.
Wasserman Schultz.
Ms. Wasserman Schultz. Thank you, Mr. Chairman.
I rise in opposition to the amendment as well----
Chairman Sensenbrenner. The gentlewoman is recognized for 5
minutes.
Ms. Wasserman Schultz. Thank you, Mr. Chairman--and for a
number of reasons. Particularly because the gentleman from Iowa
more than implied but suggested that the reason that we had
difficulties in Florida in 2000 was possibly because of Section
203 language requiring ballots be printed in other languages.
Maybe we should be amending this Voting Rights Act to
require the supervisors of elections actually speak English.
Because the real problem that we had in Florida was the 22,000
African Americans in Duvall County messed up their ballot
choice because they were instructed to vote every page on the
Duvall County ballot, and the Presidential election ballot was
printed on more than one page.
Additionally, there were 3,500 at least Palm Beach County
voters who were given the butterfly ballot that was impossible
to understand and didn't have the Presidential candidates lined
up properly so that many voters voted for the wrong person
accidentally.
So if we are going to start talking about what the problems
were in 2000, let us be accurate about what those problems
were.
Mr. King. Would the gentlelady yield?
Ms. Wasserman Schultz. I would be happy to yield in a
minute.
Additionally, let me point out that it is not just Spanish
speakers that this ballot language in the Voting Rights Act
assists. My county, Broward County, is a Section 203 county
both for Spanish speakers and for Seminole Indians. So are you
going to suggest to Seminole Indians, who were the first
Americans, that they should learn English and that the ballot
should not be printed in their native tongue? I don't think so.
I would be happy to yield to the gentleman.
Mr. King. I thank the gentlelady.
And I would just point out the observation there is
something that I think we do all agree on universally amongst
Democrats, Independents, and Republicans with regard to the
2000 election in Florida; and that is that those who intended
to vote for Al Gore as opposed to those who intended to vote
for George Bush had a lot more difficulty with the ballots; and
I think that is an important observation.
I thank you, and I yield back.
Ms. Wasserman Schultz. Mr. Chairman, reclaiming my time,
the people who had problems voting for Al Gore voted for Pat
Buchanan instead, not for George Bush, particularly in Palm
Beach County; and those Jewish senior citizens didn't have
trouble discerning Spanish from English.
We need to make sure that we preserve democracy and
opportunity and the independent secret ballot for all people
who have become American citizens, whether they were born here
and English is their first language or whether it is their
second or their third language.
Mr. Gohmert. Would the gentlelady yield?
Ms. Wasserman Schultz. Sure.
Mr. Gohmert. I was just curious if you realized you could
really be hurting Pat Buchanan's feelings by your comments to
say these people didn't really mean to vote for him.
Ms. Wasserman Schultz. Reclaiming my time, you know, Mr.
Gohmert, I think that you also probably hurt people's feelings
by suggesting that in--and I am sure you didn't mean it this
way--in the nicest way possible that Spanish-speaking people
are smart. I mean, the implication there might be Spanish-
speaking people who are not smart is potentially insulting, and
I think we all need to be a little bit more sensitive about the
language that we use in this Committee.
Ms. Jackson Lee. Would you yield?
Ms. Wasserman Schultz. I would be happy to yield.
Ms. Jackson Lee. May I just add--and, Bill, let me thank
you very much for really putting this debate in its expanded
framework. Because so many of us have these personal passions,
whether it is Florida in the butterfly ballot or the mid-term
redistricting of Texas. But we are holding these passions so
that we can move forward in something that is vital to our
Nation.
And might I just say, Mr. Gohmert, good friend, that just a
few weeks ago I stood with an 81-year-old Iranian and a 72-
year-old Iranian and that I don't think their language is
covered, but they did not speak English. But they took the oath
of citizenship loving this country, tears in their eyes.
I think it is just undermining our Constitution to suggest
that your birthright of citizenship--you work all these years
to become a citizen, you are of Puerto Rican heritage, you are
of other heritage, and you tell them because of age or because
of the fact that they came here as adults but that they that
have the birthright of citizenship, the same thing that my
mother had to go through in the State of Florida, born in the
1920's, speaking the King's English but yet she could not vote,
her grandmother could not vote, her mother could not vote
because of the fact of the color of her skin; and, whatever
English she spoke, these are barriers to voting. This is what
brings us to our knees in this country. This is the brutality
that John Lewis experienced.
Chairman Sensenbrenner. The time of the woman has expired.
For what purpose does the gentleman from Florida, Mr.
Wexler, seek recognition?
Mr. Wexler. To oppose the amendment.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Wexler. Thank you, Mr. Chairman. I will be brief.
Just as to Florida--and, quite frankly, I am astonished
that we are even having this debate. But with all due respect
to Mr. King, if there is going to be an analysis between those
voters that chose to vote for President Bush in 2000 and those
voters that chose to vote for Al Gore in 2000, with respect to
the discrepancy that existed which I think is self-evident at
this point, for those voters that chose to vote for President
Bush it was a rather simple analysis or process. Because if you
wanted to vote for President Bush, his name was first on the
ballot, and the bubble that you punch was first. So it was
logical. If you intend to vote for President Bush, his name was
first, and the bubble was first.
However, if your intention, Mr. King, was to vote for Al
Gore for President, his name was second on the list, but his
bubble was not second. His bubble was third. Because there was
another bubble that was second that corresponded to a name on
another sheet of paper as it appeared on the ballot.
So with all due respect--and we have had this argument now
for almost 6 years--it is not apples to apples. And those
people that chose to vote for President Bush had a very simple
exercise that was straightforward and in even the most
elementary of analysis would be easy to perform. For other
voters, however, it was different.
As to the issue of the amendment, we are not discussing,
with all due respect, how families ought to raise their
children or what the goal should be with respect to how
families should teach their children English. I think we would
all agree that the teaching and learning of English is a goal
that, hopefully, all Americans would pursue with vigor. But
what we are talking about is voting. We are not talking about
how we are preparing people for economic life. We are not
talking about how we are preparing people for the job market.
Ironically, we have a special law for Cuban Americans which
I happen to support. The special law that we have for Cuban
Americans is, if they take the extraordinary courage of fleeing
the Castro regime and they take an incredibly difficult trip
across the Florida Straits where a lot of people perish and if
they physically can get their feet onto the ground in Florida,
in America, we treat them specially. And I am all for that.
Now some people have problems with that, but I am all for
it. Because those people have exercised their great patriotism
for democracy by taking an enormous risk, and then they get
special treatment to get citizenship, if they master the
English language enough to get citizenship, and then probably
the first thing they are going to want to do is go vote in
Miami-Dade County.
And what you are saying in this amendment is, even though
there are pages and pages of instructions, that if that person
who took a boat to be an American, that took enormous risks to
be an American, you are out of luck. If you are proficient
enough to be an American citizen, pass the citizenship test,
but now you go to vote and you go to read the amendments to the
State constitution which are paragraphs long, that are
complicated, that you don't have the ability to ask for some
assistance, so the trip you took across the Florida Straits,
that was for naught. The trip that you took that endangered you
and your family's life, that was for naught. When you get here,
sorry, you don't really have full citizenship. You just can't
really vote because you haven't mastered the English language
quite proficiently enough so you may not be able to understand
the entire ballot.
We are not talking about preparing people for economic
life. We are talking about having the common decency to respect
people's integrity so that we assist them to become the most
engaged citizens that they can be in America as Americans.
Chairman Sensenbrenner. Does the gentleman yield back?
Mr. Wexler. I yield back.
Chairman Sensenbrenner. The gentleman from California, Mr.
Schiff.
Mr. Schiff. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Schiff. Thank you, Mr. Chairman.
I am proud to join you and Ranking Member Conyers as a co-
sponsor of this important legislation and honored to play a
small part in the reauthorizing of such historic rights
legislation. This bill has been responsible--this legislation
has been responsible for ensuring that minority citizens are
able to elect representatives of their choice.
Just over 41 years ago, on March 7, 1965, what became known
as Bloody Sunday, 600 civil rights marchers peacefully
protested for the right to vote. Upon reaching the Edmund
Pettus Bridge, these marchers were attacked by State and local
law enforcement officers.
In commemoration of this event, 2 years ago I joined a
pilgrimage led by our colleague, Congressman John Lewis--and I
know many of our colleagues have done the same--to the sites of
the civil rights struggles; and we visited that bridge.
Standing there then and reflecting on the experience now, I can
still feel the power yielded by the right to vote, powerful
enough then to garner the hatred of a mob of segregationists,
influential enough now to continue to incite debate over the
legislation before us today.
A decade since those civil rights activists were beaten
with billy clubs, sprayed with tear gas in response to their
demands for the right to vote, discrimination still continues
to remain in elections across the Nation from California to
Florida. However, significant progress has been made in the 41
years since the VRA was first passed. Minority voters have a
much greater voice today because of the Voting Rights Act.
Despite that, after every election we all still hear stories of
voter discrimination and intimidation and realize this remains
equally important today and we cannot let the temporary
provisions of the VRA expire. These expiring provisions--pre-
clearance of election law changes, Federal observers at polls,
and language assistance for limited English speakers--serve to
deter those seeking to weaken minority voting rights.
It is evident to those from my home State of California
just how critical language assistance is for those with limited
English skills. In this diverse State, 51 of 53 congressional
districts are subject to language assistance requirements.
We don't make our elections easy on voters. In a State
where 135 candidates ran for governor 3 years ago, it should be
no surprise that during the 2004 general election the
California voter guidebook was nearly 200 pages. This guide
includes information on candidates and ballot measures and
helps voters prepare for the election.
Looking at the book when it arrived in the mail, I was able
to predict the stories I would hear from my constituents. But
it wasn't just those with limited English skills. Countless
native English speakers shared with me how confusing the voting
was and how difficult to decipher 200 pages of content in
preparation for voting. I can only imagine that it would be
nearly impossible for a voter with limited or no English. Yet
these citizens, too, have the right to vote. Thankfully, due to
the VRA in my district, our polling sites provide language
assistance voters for Chinese, Filipino, Japanese, Vietnamese,
and Latino voters.
For these various reasons and many others, I oppose the
amendment of the gentleman; and I support the base bill.
The right to vote for every American citizen is the
foundation of our democracy. Unfortunately, there are still
barriers to overcome; and we as a Nation are not ready yet to
give up this legislation that defends every American's right to
vote. For this reason, I am proud to support the Voting Rights
Act Reauthorization and Amendments Act and will continue to do
my part to ensure that the VRA remains effective and enforced.
And, Mr. Chairman, I yield back the balance of my time.
Mr. Chabot. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Ohio, Mr.
Chabot.
Mr. Chabot. Thank you, Mr. Chairman.
I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Chabot. Thank you, Mr. Chairman. I will be very brief.
Having chaired the 12 hearings that we had on the Voting
Rights Act, I want to thank my colleagues on both sides of the
aisle for going through that process and having 40 plus
witnesses.
I think that the product that we have come to, H.R. 9, is a
very carefully crafted product which I intend to support. This
particular amendment, I have--there are many things about Mr.
King's--in fact, not just this amendment but his others--which
I am in sympathy with. I think it is important for us to
encourage English and emphasize English in this country, and I
think all people who live here or may want to live here, it is
critical that they do learn English as quickly as possible.
That being said, I intend to oppose the amendment because I
know the Chairman has worked both with the Ranking Member and
Mr. Watt and other Members to very carefully craft this
legislation, which I think is very important, to make sure that
every person does have the opportunity and the right to vote in
this country, irregardless of skin color. And for,
unfortunately, quite some period in this country that was not
the case.
So, that being said, I will oppose the amendment. But I
want to thank Mr. King for bringing it up, because I think it
is important that we do debate this issue. It is a very
important issue, it is a serious issue, and I think that it is
one that we as a country really do need to continue to work on.
With that, I yield back the balance of my time.
Chairman Sensenbrenner. The gentleman from North Carolina,
Mr. Watt.
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Thank you, Mr. Chairman.
I want to bring us back to the amendment, if I can, as we
approach this vote and encourage my colleagues not to cast a
vote on the basis of their ideas or beliefs about immigration.
This really is not about immigration; this is about citizens.
As the Chairman has indicated, this is not about illegals
coming into the country. This is about the basic right of
people who are citizens in this country to cast a vote that
they understand.
I have two bases for opposing the amendment. First is the
earlier statement that I made about reaching a balanced bill,
working through these issues with the Chairman. I would have to
admit, if I got everything I wanted in this bill, we would have
had a lowering of the threshold for allowing people to cast, to
take advantage of the provisions of this bill, section 203. But
that is not what this is about. I think it is balanced to
extend the existing provisions that already apply in the Voting
Rights Act now, and that is what this bill does.
But my opposition to this amendment is more basic than just
preserving the balance and making sure that we don't blow up
the Voting Rights Act around the issue of immigration. It is
more basic than that. Because on my wall at home in North
Carolina I have framed the first ballot that was cast by the
people of South Africa, and it keeps reminding me that the
folks in South Africa were allowed to vote. We were their model
for democracy, but they showed us some things about democracy.
They showed us, first of all, that no registration was
required, because people stood in lines and showed up to vote
not even having registered to vote.
That ballot shows us, second of all, that the extent to
which they went to allow people to cast a meaningful vote, they
put photographs on that ballot for people who couldn't read a
lick so that they would know who the candidates were that they
were casting a ballot for.
So, for many, this is not about immigration or lack of
immigration. It is about the basic right to cast a vote in a
democracy; and we shouldn't be doing anything, in my opinion,
to deprive people, citizens--not illegals, citizens--of the
right to cast a meaningful vote.
It is in that context that I encourage my colleagues to put
aside all of these things about Florida and about the
immigration debate and about even, with all respect to Mr.
Wexler, all the preferences we give to Cubans and this and
that, and focus in this vote on how we can make it meaningful
for people, citizens of this country, to cast a vote, the most
basic, basic right that one can have in a democracy such as
ours. And let us restore, let us keep restoring the United
States to be the gold standard of democracy in the world.
With that, Mr. Chairman, I yield back the balance of my
time.
Chairman Sensenbrenner. The question is on the amendment
offered by the gentleman from Iowa, Mr. King. Those in favor of
the amendment will say aye; opposed, no.
The noes appear to have it.
Mr. King. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Iowa.
Mr. King. I ask for a recorded vote.
Chairman Sensenbrenner. A recorded vote is ordered. Those
in favor of the King amendment will, as your names are called,
answer aye; those opposed, no. And the clerk will call the
role.
The Clerk. Mr. Hyde.
Mr. Hyde. No.
The Clerk. Mr. Hyde, no.
Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith.
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly.
Mr. Gallegly. Aye.
The Clerk. Mr. Gallegly, aye.
Mr. Goodlatte.
[no response.]
The Clerk.Mr. Chabot.
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren.
Mr. Lungren. No.
The Clerk. Mr. Lungren, no.
Mr. Jenkins.
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon.
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Bachus.
[no response.]
The Clerk. Mr. Inglis.
[no response.]
The Clerk. Mr. Hostettler.
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green.
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller.
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa.
Mr. Issa. No.
The Clerk. Mr. Issa, no.
Mr. Flake.
Mr. Flake. No.
The Clerk. Mr. Flake, no.
Mr. Pence.
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes.
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King.
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Feeney.
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks.
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye.
Mr. Gohmert.
Mr. Gohmert. Aye.
The Clerk. Mr. Gohmert, aye.
Mr. Conyers.
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman.
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Mr. Boucher.
[no response.]
The Clerk. Mr. Nadler.
Mr. Nadler. No.
The Clerk. Mr. Nadler, no.
Mr. Scott.
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt.
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Ms. Lofgren.
Ms. Lofgren. No.
The Clerk. Ms. Lofgren, no.
Ms. Jackson Lee.
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters.
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Meehan.
Mr. Meehan. [no response.]
The Clerk. Mr. Delahunt.
Mr. Delahunt. No.
The Clerk. Mr. Delahunt, no.
Mr. Wexler.
Mr. Wexler. No.
The Clerk. Mr. Wexler, no.
Mr. Weiner.
Mr. Weiner. No.
The Clerk. Mr. Weiner, no.
Mr. Schiff.
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez.
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Van Hollen.
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no.
Ms. Wasserman Schultz.
Ms. Wasserman Schultz. No.
The Clerk. Ms. Wasserman Schultz, no.
Mr. Chairman.
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes?
If not, the clerk will report.
The Clerk. Mr. Chairman, there are nine ayes and 26 nays.
Chairman Sensenbrenner. And the amendment is not agreed to.
Are there further amendments?
Mr. Lungren. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from California, Mr.
Lungren.
Mr. Lungren. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. The clerk will report the
amendment.
The Clerk. Amendment to H.R. 9 offered by Mr. Daniel E.
Lungren of California.
Add at the end the following:
Section blank. Elimination of certain requirements for
counties where requirements were imposed because of the
presence of large Federal military installations.
Chairman Sensenbrenner. Without objection, the amendment is
considered as read.
[The amendment follows:]

Mr. Watt. Mr. Chairman, I reserve a point of order.
Chairman Sensenbrenner. The gentleman is recognized.
Mr. Watt. I reserve a point of order.
Chairman Sensenbrenner. A point of order, subject to the
reservation.
The gentleman is recognized for 5 minutes.
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Chairman, I rise in support of the base bill. There are
a few of us who were back here in 1982 when we had an extension
of the law that was an historic extension; and the previous
Chairman of the Committee, Mr. Hyde, was largely given credit
at that time for holding the hearings as the Chairman of the
Subcommittee and bringing to the attention of the American
people the need for extending this law.
I was very proud to work with Mr. Hyde; with the current
Chairman, Mr. Sensenbrenner; with our Ranking Member, Mr.
Conyers; and I was pleased to work with Mr. Conyers on the
establishment of the Martin Luther King holiday. Those are some
of my proudest moments here in the House.
At the same time, Mr. Chairman, it seems to me extremely
important for us to understand that we ought to take a look at
some sections of the law to ensure that they are doing what
they were intended to do.
In enacting the Voting Rights Act of 1985 and in extending
it, Congress intended that the Act's special provisions operate
against jurisdictions with a history of racial discrimination.
I don't believe it ever intended for these provisions to
penalize jurisdictions because they house the Nation's Armed
Forces during a time of armed conflict. Yet that very thing
occurred in certain small jurisdictions in my State, Merced
County, Kings County, Yuba County in California, where U.S.
military bases constituted a substantial portion of the
county's resident population but where the voter turnout
narrowly fell below the 50 percent rule because military
personnel often voted in their home States by absentee ballot.
For example, 49.6 percent of the estimated voting age
population in Merced County voted in the 1972 Presidential
election. If the participation of military personnel, their
spouses and dependents eligible to vote but who voted in their
other States were excluded, Merced's participation would easily
have exceeded 50 percent; and the county would not ever have
been covered under section 5 in the first instance.
I believe that coverage of these counties was an unintended
consequence of the formula's statement in neutral terms and
almost certainly was not anticipated nor desired by Congress.
This amendment simply gives relief to those jurisdictions
accidentally swept into coverage. It requires these
jurisdictions not to be in a State which is covered but only in
a subdivision of a State, such as is the case here, that they
were in as a result of the presence of military bases with
their military populations and that they have had no violation
under the Voting Rights Act under the jurisdiction of the
counties involved over the last 10 years.
I think it is important to correct this application of
jurisdictions covered by reason of a substantial military
presence because Congress would address a constitutional
vulnerability of any extension.
Numerous parties have expressed concerns about the ability
of any legislation extending the special provisions of the
Voting Rights Act to survive constitutional scrutiny in light
of the Supreme Court's recent jurisprudence restricting power
under section 5 of the 14th amendment. That case law requires
Congress to establish that any remedial legislation under that
section be, quote, congruent and proportional to the harms
Congress seeks to remedy by its enactment, in this case,
actions of specific jurisdictions with a history of intentional
discrimination in voting and artifice to avoid changing
discriminatory practices.
Permitting jurisdictions to exit coverage when they can
establish they are only subjected to section 5 coverage because
of a substantial military presence further tailors the
provisions to the evils sought to be remedied and makes it more
congruent and proportional to the harms to be addressed.
My amendment does not grant an automatic exemption.
Counties would have to initiate a court proceeding in the court
most experienced with these matters, the United States District
Court for the District of Columbia, in order to exit coverage.
Secondly, the burden of establishing the right to exemption
is on the jurisdiction.
Third, parties who have been subject to an objection in the
past 10 years may not be granted this exit coverage under this
provision.
And, fourth, I would repeat, the way we have drafted this,
it does not apply to covered States or subjurisdictions covered
as a result of State coverage. This only involves those
jurisdictions that were placed in under that special section--
--
Chairman Sensenbrenner. The gentleman's has expired.
Mr. Lungren.--and only those who were covered as a result
of the military presence.
Chairman Sensenbrenner. Does the gentleman from North
Carolina insist on his point of order?
Mr. Watt. No, Mr. Chairman, I withdraw the point of order.
Chairman Sensenbrenner. The point of order is withdrawn.
For what purpose does the gentleman from North Carolina
seek recognition?
Mr. Watt. I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Watt. Mr. Chairman, I rise in opposition to this
amendment.
The Voting Rights Act currently provides a mechanism for
covered jurisdictions to get out from under the provisions of
the pre-clearance section. Under the section 4(a) bailout
criteria, jurisdiction may be removed from coverage and no
longer subject to pre-clearance if it demonstrates, one, that
it has been in full compliance with the pre-clearance
requirements for the past 10 years; two, that no test or device
has been used to discriminate on the basis of race, color, or
language minority status; and, three, no lawsuits against the
jurisdiction alleging voting discrimination are pending.
This amendment would drastically reduce those standards to
apply to a small category of counties in an otherwise
noncovered State where the presence of a military base within
its borders presumably caused the low voter turnout statistics
that brought the area under the coverage of the Voting Rights
Act.
There are a number of concerns I have about the amendment.
The amendment, first of all, makes arbitrary distinctions
for eligibility. It applies only to counties in noncovered
States that had military bases at the time they were brought
under coverage. But if a military installation artificially
inflated or deflated turnout numbers, it would have done so in
States fully covered by section 5 as well.
Second, the amendment would apply only to those counties
whose military account allegedly affected coverage
determinations made in 1968 and 1972. We don't have a clue how
many other counties would be eligible other than the counties
that were referenced here, and no record has been developed on
this because this is something that came up after the hearings
took place, after this discussion took place.
Third, the amendment would apply only to military
installations; and this ignores other institutions that could
also arguably skew turnout data, most notably college campuses.
Jails and prison populations could arguably be included also. I
mean, there are a number of things that could have impact on
the criteria that bring you under the act.
Fourth, the amendment presumes the entire population of the
military installation consisted of either nonresidents of the
county or individuals who were not properly registered in that
county. Transient populations like students and military
personnel often changed their residency for voting purposes. So
it is unclear whether we can factually determine who was and
who wasn't properly included in the population count in these
jurisdictions.
Next, the only factual evidence in the record is
submissions from lawyers; and you know how lawyers try to skew
things. They always are going to be advocating for their
clients in a way. What is so sinister about this is if they
would just go and apply through the regular bailout process,
they could do this through a court of law if they met the
existing criteria, rather than sought some preferential
judicial determination with no factual records having been
developed.
Most important, there is evidence that counties made
eligible under this amendment have independent political
entities within their geographical boundaries that do have
recent or current evidence of discrimination or failure to
comply with section 5. You have got water boards that fall
under these counties, school boards that fall under these
counties. So I just don't--I think this is a back-door attempt
to circumvent the existing bailout requirements.
If we are going to do anything, I would hope the gentleman
would consider maybe doing something similar to what Mr. Issa
proposed. If there is a problem here, we might be able to
document it if we had a study done of it and we could deal with
this in the future. But to try to do this in this context is
going to destroy the balance that we have worked out here and
do so really without having the factual basis, the record basis
that we need to justify doing so.
With that, Mr. Chairman, I yield back.
Mr. Goodlatte. [presiding.] The time of the gentleman has
expired.
The gentleman from Tennessee, Mr. Jenkins, is recognized
for 5 minutes.
Mr. Jenkins. Mr. Chairman, I yield to gentleman from
California.
Mr. Lungren. Mr. Chairman, just in response to the points
made by the gentleman from North Carolina, first of all, this
is hardly a back-door way. This is very upfront about what I am
attempting to do.
Mr. Watt. I apologize.
Mr. Lungren. Secondly, to criticize it for being
restrictive, I restricted it because we have a special set of
circumstances.
Third, to suggest that population bases as a result of our
military people are somehow equivalent to population bases of
our prison population, frankly, I think is a distortion of
values in this country. Our military people are serving this
Nation and giving us sacrifices in ways virtually no one else
does, and the fact that a county has welcomed the presence of
military bases it seems to me should not be used to punish
those counties.
Fourth, if the gentleman was asking about gaming
statistics, we had 30 years worth of statistics on this. If the
gentleman is concerned about any other entities that might be
eligible under this provision, there is one other. In the State
of New Hampshire, Rockingham County, Newington Township would
also be able to avail itself of this if they wished. I have not
been in contact with them, so I have no idea if they would
avail themselves of this.
The gentleman asked why the current bailout provisions are
not sufficient. Well, the bailout provisions, as most recently
amended in 1982, held the covered jurisdictions responsible for
compliance by the political subdivisions within their borders
based on the premise that they controlled those political
subdivisions. And while that premise is essentially true in
Virginia and most of the other covered States, it is not true
in California. Merced and Yuba County are held responsible
under the gentleman's suggestion for the compliance of numerous
special districts which are State rather than county agencies.
They are beyond the county control. And the compliance of
cities, which, unlike the case of most covered States, they are
granted constitutional home rule powers.
So here we have the State of California, which is not a
covered State; and the subdivisions of that State are water
districts and the other things the gentleman said, have the
same legal bases as the counties do. This has brought counties
under the coverage.
My amendment would say those counties which are subject to
coverage right now because of the presence of military
installations would have to show that they have not done
anything in violation of the law in the last 10 years, either
by a finding of the court or by a rejection of a proposal of an
electoral law change by the Justice Department.
So this is a case where California is not covered. Counties
are covered by this quirk in the law application because of the
presence of military installations and being held responsible
for jurisdictions over which they have no control. Arguably,
those water districts and others are not covered because they
are entities of the State, not entities of the county.
I would just say to the gentleman there is no evidence
whatsoever that these counties have done anything in terms of
their law changes that is in violation of the Voting Rights
Act. Again, I am saying adoption of this amendment in my
judgment assists us in being able to show the courts that we
have done the careful kind of analysis necessary to support the
continuation of this law. Because the Voting Rights Act is an
exceptional act in response to exceptional circumstances, and
in the absence of exceptional circumstances I think the
jurisprudence of the Supreme Court is that you don't have a
foundation for continuing----
Mr. Watt. Would the gentleman yield on that point?
Mr. Lungren. It is not my time.
Mr. Watt. Mr. Jenkins, would the yield?
Mr. Jenkins. I will yield.
Mr. Watt. Just so I can make the point that, had the
gentleman made the record during the hearings, what he is
saying might be true. But here in this debate we are not making
a record. There is no factual record being made. This is a
markup. So the gentleman--if the gentleman were going to do
this, we should have made a record about it at the appropriate
time, not just kind of ex parte statements.
Chairman Sensenbrenner. The time of the gentleman from
Tennessee has expired.
For what purpose does the gentleman from California, Mr.
Berman, seek recognition?
Mr. Berman. Mr. Chairman, I move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Berman. Mr. Chairman, initially on my time I would like
to ask the sponsor of the amendment: There are four counties in
California that are section 5 counties. The discussion here
only makes reference to three of them.
Mr. Lungren. Yes.
Mr. Berman. Is there a reason why Monterey County is not
included in it?
Mr. Lungren. Because Monterey County has had a violation or
a rejection of a request for a change by the Justice Department
within the last 10 years. So it would not be able to apply to
this at this present time.
Mr. Watt. Would the gentleman yield so I can tell him also
that they are----
Mr. Berman. I would be happy to yield.
Mr. Watt. There are boards under these counties that have
had violations, also. So I don't know how Monterey would be
distinguishable on that basis, because there is a water board
that has had a violation. And, notwithstanding what the
gentleman says, there is nothing that suggests that those water
boards and school boards are independent of the counties under
the Voting Rights Act.
Mr. Lungren. Would the gentleman yield on that point?
Mr. Berman. Yes.
Mr. Lungren. The California constitution is the authority
for that. Counties have no control whatsoever with those
boards. They are independent boards, and in some cases those
boards actually go across county lines. They are not even
exactly geographically the same as the counties.
Mr. Berman. Well, okay. I would like to ask the gentleman
to consider delaying the offering of this amendment until we
get to the floor, assuming there is an opportunity on the floor
if this comes up under a rule. The reason I do it is I don't
think this is a malicious amendment in any way. But I think, as
the gentleman from North Carolina has mentioned, there are a
number of questions I would like to have answered before I
could vote for the amendment.
First of all, I don't totally understand the gentleman's
answer to the question of why the existing bailout criteria
wouldn't apply. As I understand it, have they been in full
compliance with the pre-clearance requirements for the past 10
years?
Even conceding--and I think you are probably right--that
the presence of those military bases may have been part of why
those counties were considered section 5 counties originally,
have they been in full compliance with the pre-clearance
requirement for the last 10 years? Is there any test or device
that has been used in those jurisdictions to discriminate on
the basis of race, color or language, minority status? And are
there pending lawsuits alleging voter discrimination? If those
are the criteria, they seem pretty straightforward. And have
these counties applied to get out of the section 5 pre-
clearance provisions using those criteria? I didn't quite
understand the gentleman's answer to that.
Mr. Lungren. If the gentleman would yield, I could try to
respond to that.
Mr. Berman. If I could have an additional 2 minutes, I
would be happy to yield.
Chairman Sensenbrenner. Without objection.
Mr. Berman. I yield.
Mr. Lungren. The problem is the way that the provision
currently works in the bailout provision the county is held
responsible for those jurisdictions that are in part or in
total in their geographic area.
As the gentleman knows, in California we have 58 counties;
yet we have 2,830 special districts. They are creations under
the California constitution of the State, not the county. They
are independent of the county. So while the county has no legal
ability to control how those districts operate, they are held
responsible for purposes of bailout for that, even though they
don't control it.
Mr. Berman. All right. I appreciate that.
Mr. Watt. Would the gentleman yield?
Mr. Berman. I would be happy to yield.
Mr. Watt. I want you all to understand what the gentleman
is saying. He is saying, on the one hand, that the county has
no control over these jurisdictions; and he is saying, on the
other hand, that the voting rights law, if they apply to
bailout, they do have control over them, they are presumed to
have control over them. So, I mean, heis having his cake and
eating it, too.
Mr. Berman. Just reclaiming my time. Then one could propose
that a different amendment, an amendment which said that
section 5 counties can't be asked, changes in the nature of the
way the criteria worked to say that if you have no control over
the jurisdiction which has been engaged in this, then that
can't be used as a basis for denying you the bailout. It would
be a different kind of an approach than this amendment takes.
Mr. Watt. If the gentleman would yield, and that goes back
to the point I was trying to make. This is so muddy and complex
that it is the kind of thing that I think would be the proper
subject for a study of some kind to clarify. But to try to do
it in the context of this markup I think is a mistake.
Chairman Sensenbrenner. Would the gentleman from California
yield?
Mr. Berman. I would be happy to yield.
Chairman Sensenbrenner. I guess the question that is really
relevant is for these subdistricts--and I believe that there is
a water district that is in question--who handles the voter
registration in the conduct of the elections for these
independent districts? Because if the independent districts do
it themselves, you know, then I think there is a way that the
county, which is kind of an innocent third party, should be
allowed to opt out. However, if the county handles the voter
registration----
Mr. Berman. The county does handle the voter registration.
Chairman Sensenbrenner.--and pays for the election judges
and perhaps prints the ballots, you know, then the county is I
guess kind of acting as the agent for the local district; and
if there is discrimination, it would be imputed to the agent
and section 5 should apply.
Mr. Berman. I would ask unanimous consent for 2 additional
minutes.
Chairman Sensenbrenner. Without objection.
Mr. Berman. Reclaiming my time, it gets complicated, which
again points out what the gentleman from North Carolina is
saying. Clearly, the county is in charge of voter registration.
But on the issue of these water districts, who pays for the
election and who determines the policies which could be seen to
discriminate in violation of law, may be less clear. It seems
like something we need to have a better answer to, who conducts
the elections. When the City of Los Angeles has an election, it
is inside L.A. County. The registration roles are those of the
County, but the election is conducted and paid for by the City.
So I guess the answer to your points is, in some cases, the
county is in control and, in some cases, they are not. We ought
to know the answer to that.
I guess the final reason I would ask you to consider
deferring consideration of this amendment, again even though
I--I mean, I might point out two things perhaps somewhat
whimsically. Based on my experience, counties would much rather
have military bases than prisons. So this notion of what
counties want is I think maybe a little different than the way
you indicated.
Secondly, given the gentleman's passionate belief in
reforming the redistricting process, I would have thought that
his amendment would be to cover all of California under the
Voting Rights Act to require--since the one effect of those
four counties being section 5 counties is there is no effort to
sever those counties and draw strange and slicing kinds of
districts through those counties because they are under section
5. So you are working against your redistricting beliefs by
your amendment.
But the point I wanted to make was these three counties are
in other Members' congressional districts. There are three
boards of supervisors in these counties. I don't know what
those Members think of this, and I don't know what--oneis a
Republican, and two are Democrats--and I don't know what the
boards of supervisors of the counties think. That is the reason
why I think a little more time--if there is a way to create a
record through a quick study to answer some of these questions,
I would ask the gentleman to consider delaying the vote on it.
Chairman Sensenbrenner. The time of the gentleman has
expired, and the Chair recognizes himself for 5 minutes to
strike the last word.
I believe that the gentleman from California, Mr. Berman,
makes a very valid point.
First of all, there has been at least one violation in one
of the three counties involved. I guess we don't know who the
guilty party is, whether it is the county or whether it is the
local subdistrict or whether it is a combination of the two. It
seems to me that, before passing an amendment which effectively
is a get-out-of-jail card, we ought to look into this issue and
pinpoint the responsibility. Because it seems to me that the
level of Government or the agency of Government that was
responsible for the violation should not be given such a get-
out-of-jail card.
The other thing--and I keep on coming back to this--is that
the Voting Rights Act was upheld as constitutional three times
by the Supreme Court based upon a showing that Federal
intervention was necessary. Now there has been Federal
intervention deemed to be necessary up until now. If Federal
intervention was not necessary, then the amendment that the
gentleman from California, Mr. Lungren, is offering would be
redundant and would not have any type of an effect.
I am really very hesitant to go ahead without the type of
record to show that a change in the law is necessary that has
been done extensively by Mr. Chabot and his Subcommittee to the
tune of 40 witnesses and about 8,800 pages of record that is in
evidence. So while I agree with Mr. Berman that this amendment
is not a malicious amendment to the legislation, it seems to me
that we ought to be a little bit more precise in knowing what
we are doing before going ahead and adopting it.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. I yield to the gentleman from
Michigan.
Mr. Conyers. I think I can save time by coming in now,
because this may be the last major amendment, and I still have
hopes that we can beat the clock and report this bill before
the voting commences.
Let me point out that I share the understanding that Mr.
Lungren has about this. But after a dozen hearings--I said 10
at first--we have a suspicion that there are many other
jurisdictions that might be in the same fix as the gentleman's
issue about the section 5 counties in California. For that
reason and the fact that we did not take this up, we have gone
through section 5, the trigger pre-clearance bailout, time
after time after time over these weeks and months; and this is
a far too complex matter for us to resolve here, especially
since we have the unusual cooperation of the other body with an
identical proposal.
Now I think a study to this would be a much better way. The
gentleman from California Mr. Berman has suggested it. I think
the gentleman from North Carolina has.
Let us not muddy the waters. Let us remember that this is a
huge measure. We have got a head of steam going. I would urge
that the gentleman consider withdrawing the amendment or we
dispose of it so that we can report a bill on today, May the
10th.
And I thank the gentleman for yielding.
Ms. Jackson Lee. Does the gentleman yield.
Chairman Sensenbrenner. For what purpose does the gentleman
from Virginia, Mr. Scott, seek recognition?
Mr. Scott. Move to strike the last word.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Scott. Mr. Chairman, thank you for having the hearings.
There is a reason to having hearings. As has been pointed out,
we don't know how many different counties may be affected.
There is no record on either the need or the effect, but there
is a record on the bail-out provision which was uncontradicted
testimony that it is easy to bail out if you qualify. In fact,
there is nothing in the record to suggest that this process is
even easier than the present process. This might be even more
complicated.
It has been pointed out that the effect of this would be to
allow a county to get out and in effect to also let those who
actually earned coverage within the county to also get out.
So, Mr. Chairman, this is a last minute amendment. We can't
carefully analyze it because there is nothing in the record. It
adds a complication to the bill. And there is nothing in the
record to demonstrate whether there is need or whether it will
have the desired effect. I would hope we would therefore, Mr.
Chairman, defeat the amendment.
I would yield to the gentlelady.
Ms. Jackson Lee. I wanted to add to the distinguished
gentleman's comments. I would ask my good friend from
California to try the bail-out provision and accept the
compromise offered by Mr. Conyers which is to prospectively
look at relief if the bail-out provision does not work, and
then we have a basis of moving forward because there may be
many similarly situated. But the bail-out provision is there.
It is to be utilized, and I would urge my colleague to withdraw
the amendment. I yield back.
Mr. Scott. Yield back.
Mr. Cannon. Mr. Chairman.
Chairman Sensenbrenner. The gentleman from Utah, Mr.
Cannon.
Mr. Cannon. I move to strike the requisite number of words.
Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. Cannon. I am pleased to yield to the gentleman from
California.
Mr. Lungren. I find some of this debate interesting. On
behalf of several of the counties in California, submission was
made to the Committee on November 4th of last year. We have
been in discussion with Members on the other side of the aisle
on this for at least a week on the language that it has
presented.
I appreciate the fact we want to get this bill through. I
support this. I supported it in 1982. I support it now. But
this is a 25-year extension, and the idea that somehow these
three counties should wait until the next time around doesn't
seem to be reasonable to me. I can't help that the hearings
weren't held on this when submission was made last November. I
didn't decide what the hearings were going to be.
I have every single county that is covered under this
section in a non-covered State. The non-covered States are
California, Florida, New York, North Carolina, South Dakota,
Michigan, New Hampshire. I have the number of military bases
involved there. I have the period of coverage.
I would say that the records show that there is one other
jurisdiction in the entire country, and that is Newington in
Rockingham County in the State of New Hampshire. And I would
say that there have been no objections affecting it.
I would just say, again, to clear up the record, under
California law and the California constitution, the county has
no control over the activity of the governing boards of the
entities described. Several of them cover more than one county,
such as the Central California Irrigation District and San
Louis Water District. Many of the districts are authorized by
California law to conduct their own elections, and some do. And
yet what I am saying, the county is held responsible to
compliance or non-compliance when we look at the bail-out
provision.
Again, I would tell you those other districts are political
subdivisions of the State of California, which is not a covered
jurisdiction, so they are in a catch-22 situation is what they
are in.
What is to stop us from, when we get to the floor, being
told that we can't consider any amendments at that time because
this is a carefully crafted vehicle that we can't deal with?
Mr. Berman. Would the gentleman yield?
Mr. Lungren. Be happy to yield.
Mr. Cannon. The time being mine.
Mr. Berman. Thank you.
Understanding better the relationship of these special
districts, your general proposition of rights. Even your own
sentence said some special districts run their own elections;
some are run by the counties. It is a big thing to do, and it
is a big thing not to do, and just seems to me that if there is
no fundamental underlying policy reason to hold three random
counties under section 5 when the other counties in California
aren't and where maybe in fact there may be more serious
problems of voter access in some of those other counties, it
makes sense to clean that up.
But there are two different ways to clean it up and some
information to get. I do think it is appropriate to know--I
didn't know about this amendment until last night when you told
me about this amendment. I didn't know that the counties have
submitted something. I would like to know what my colleagues
from the areas think, and I would like to understand better
just what the nature of these, quote, water district violations
are and the extent to which the county is truly unable to
impact on them because in the end, those water districts if
they aren't still voting based on how much land you own, if
they aren't voting that way, if they are voting by people,
there are people from rolls that the counties are in charge of.
So it is just getting--in other words, this isn't--I am not
suggesting this is a trap to keep you from having a chance for
the next 25 years. I am suggesting that I think there is
something to what you are saying, but I can't vote for it until
I get at least some answers to these questions.
Mr. Cannon. Yield back to the gentleman from California.
Chairman Sensenbrenner. The gentleman's time has expired.
Mr. Lungren. Mr. Chairman, I request unanimous consent for
2 additional minutes.
Chairman Sensenbrenner. Without objection.
Mr. Cannon. I am pleased to yield to the gentleman from
California.
Mr. Lungren. If Mr. Berman would--if he's saying he is
willing to work with me to see if we can actually achieve
something that would be brought, if we are allowed, to the
floor as a solution to this problem, I would be happy to
entertain that and work with the gentleman.
My purpose is not to make some sort of statement here, I am
trying to clear up something that I think makes some sense and
is consistent with what we want to do with this extension. And
if the gentleman will agree to work with me on that, I would be
willing to withdraw the amendment at this time.
Chairman Sensenbrenner. Is the gentleman withdrawing the
amendment?
Mr. Lungren. I ask unanimous consent.
Chairman Sensenbrenner. Without objection.
Are there further amendments?
The gentleman from Iowa, Mr. King.
Mr. King. Mr. Chairman, I have an amendment at the desk.
Chairman Sensenbrenner. Clerk will report the amendment.
Mr. King. Number 110.
The Clerk. Amendment to H.R. 9 offered by Mr. King of Iowa,
page 12, line 7, strike 2032 and insert 2013. Page 12,
beginning in line 13 strike subsequent and all that follows
through increments in line 14.
[The amendment follows:]

Chairman Sensenbrenner. The gentleman is recognized for 5
minutes.
Mr. King. Thank you, Mr. Chairman. This amendment,
amendment 110, is a very simple amendment and the subject has
been brought up here in the discussion on the debate on this
bill, and I think the intensity of the debate we have had, and
I would like to compliment my colleagues on the breadth of
their knowledge and the depth of the debate and the intensity
that is here. It tells us a lot about how important this
reauthorization of the Voting Rights Act is.
And what my amendment does is it strikes the 25-year period
of time for reauthorization for the sunset and sets it at a 6-
year time. It takes us up to 2013, and it is designed to get us
through the next census and through the election subsequent to
the redistricting and of the census in 2010 so that we have an
opportunity to see the effect of the reauthorization.
There are so many unknowns in there, and there is certainly
a significant amount of disagreement on how this policy plays
out. There is no provision in this legislation that allows for
a covered district to become an uncovered district, if I could
coin that term, and we will have, if this is authorized for 25
more years, we will have then had established multilingual
balance for 56 years in this country, the majority of the
century. And by Thomas Jefferson's term of 19 years per
generation, we will be approaching three and a half
generations, perhaps. So that is the scope of this.
I would say if we proceed with 25 years, it will
institutionalize multilingual balance, and I believe that we
should stop and take a look at it far more quickly than that,
and I would ask for support on this amendment that will allow
us--Members of this Committee, many will still be here
hopefully in 2013, but by 2032, it is unlikely any of us will
be here, and the institutional knowledge will have passed from
this Judiciary Committee and from the Congress, and the
institutionalization of multilingual ballots will have been
established, probably never to be reconsidered again in a
serious way, and I would again urge support for this simple
amendment.
Yield back the balance of my time.
Chairman Sensenbrenner. The chair recognizes himself in
opposition to the amendment.
What the gentleman from Iowa proposes to do is to shorten
the length of time for this reauthorization. The 25-year
reauthorization that was passed in 1982 has worked well. This
Committee has done oversight during the entire 25-year period
of time as to how the Voting Rights Act has operated, and the
conclusion was reached that discrimination has not gone away,
and that another 25 years reauthorization is proper.
I am confident that whomever sits in this chair for the
next 25 years will continue to do reauthorization of this, the
most important of all of the important Civil Rights Acts that
have passed. Shortening the period of time to a mere 6-year
reauthorization I think is a hostile amendment.
I respect the gentleman from Iowa's position on this, but I
don't think that this Committee should be continuously
reauthorizing, particularly in light of the fact we have had a
10-year reauthorization and a 25-year reauthorization and
neither appeared to be too short a period of time.
Mr. Conyers. Mr. Chairman.
Chairman Sensenbrenner. I yield to the gentleman from
Michigan.
Mr. Conyers. Could I remind our Members that throughout a
dozen hearings there has been no discussion about reducing the
25-year period? I think to cut it to 6 years would actually be
stepping on a lot of testimony that has demonstrated that there
are plenty of problems like you say that are out there. And so
I plead with this Committee not to tamper with the 25-year
period, which has worked pretty well. The former Justice Sandra
Day O'Connor referenced it. And I think that it is a perfectly
excellent way to continue.
Mr. King. Would the gentleman yield?
Chairman Sensenbrenner. I yield to the gentleman from Iowa.
Mr. King. I thank the Chairman.
I wanted to point out for point of clarification that this
amendment only addresses the bilingual balance section of the
bill. It doesn't affect any other section of the bill.
I thank you and yield back.
Chairman Sensenbrenner. I yield back the balance of my
time.
The question is on the amendment offered by the gentleman
from Iowa, Mr. King. Those in favor will say aye. Opposed, no.
Mr. King. No.
Chairman Sensenbrenner. Noes appear to have it.
Mr. King. Mr. Chairman, I would ask for a recorded vote.
Chairman Sensenbrenner. Recorded vote is ordered on the
King amendment. Those in favor of the King amendment will, as
your name is called, answer aye; those opposed, no. The Clerk
will call the role.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot?
Mr. Chabot. No.
The Clerk. Mr. Chabot, no.
Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye.
Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon?
Mr. Cannon. No.
The Clerk. Mr. Cannon, no.
Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye.
Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green?
Mr. Green. No.
The Clerk. Mr. Green, no.
Mr. Keller?
Mr. Keller. No.
The Clerk. Mr. Keller, no.
Mr. Issa?
[No response.]
The Clerk. Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. No.
The Clerk. Mr. Pence, no.
Mr. Forbes?
Mr. Forbes. No.
The Clerk. Mr. Forbes, no.
Mr. King?
Mr. King. Aye.
The Clerk. Mr. King, aye.
Mr. Feeney?
Mr. Feeney. No.
The Clerk. Mr. Feeney, no.
Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye.
Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. No.
The Clerk. Mr. Conyers, no.
Mr. Berman?
Mr. Berman. No.
The Clerk. Mr. Berman, no.
Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. No.
The Clerk. Mr. Nadler, no.
Mr. Scott?
Mr. Scott. No.
The Clerk. Mr. Scott, no.
Mr. Watt?
Mr. Watt. No.
The Clerk. Mr. Watt, no.
Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. No.
The Clerk. Ms. Jackson Lee, no.
Ms. Waters?
Ms. Waters. No.
The Clerk. Ms. Waters, no.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
[No response.]
The Clerk. Mr. Wexler?
Mr. Wexler. No.
The Clerk. Mr. Wexler, no.
Mr. Weiner?
Mr. Weiner. No.
The Clerk. Mr. Weiner, no.
Mr. Schiff?
Mr. Schiff. No.
The Clerk. Mr. Schiff, no.
Ms. Sanchez?
Ms. Sanchez. No.
The Clerk. Ms. Sanchez, no.
Mr. Van Hollen?
Mr. Van Hollen. No.
The Clerk. Mr. Van Hollen, no.
Ms. Wasserman Schultz?
[No response.]
The Clerk. Mr. Chairman?
Chairman Sensenbrenner. No.
The Clerk. Mr. Chairman, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their vote?
Mr. Boucher.
The Clerk. Mr. Boucher, no.
Chairman Sensenbrenner. Gentleman from California, Mr.
Issa.
The Clerk. Mr. Issa, no.
Chairman Sensenbrenner. The gentleman from California,
Gallegly.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. Further Members?
The gentlewoman from Florida, Ms. Wasserman Schultz.
The Clerk. Ms. Wasserman Schultz is not recorded.
Ms. Wasserman Schultz, no.
Chairman Sensenbrenner. The gentleman from Massachusetts,
Mr. Delahunt.
The Clerk. Mr. Delahunt, no.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, there are 10 ayes and 24 nays.
Chairman Sensenbrenner. The amendment is not agreed to. Are
there further amendments?
If there are no further amendments, a recording quorum is
present. The question occurs on the motion to report the bill
H.R. 9 favorably, as amended. All in favor will say aye.
Opposed, no.
Mr. King. No.
The Clerk. The ayes appear to have it, and the chair on his
own request will order a rollcall. Those in favor of reporting
the bill H.R. 9 favorably, as amended, will as your names are
called answer aye; those opposed, no.
And the Clerk will call the roll.
The Clerk. Mr. Hyde?
[No response.]
The Clerk. Mr. Coble.
Mr. Coble. Aye.
The Clerk. Mr. Coble, aye.
Mr. Smith?
Mr. Smith. Aye.
The Clerk. Mr. Smith, aye.
Mr. Gallegly?
[No response.]
The Clerk. Mr. Goodlatte?
Mr. Goodlatte. Aye.
The Clerk. Mr. Goodlatte, aye.
Mr. Chabot?
Mr. Chabot. Aye.
The Clerk. Mr. Chabot, aye.
Mr. Lungren?
Mr. Lungren. Aye.
The Clerk. Mr. Lungren, aye.
Mr. Jenkins?
Mr. Jenkins. Aye.
The Clerk. Mr. Jenkins, aye.
Mr. Cannon?
Mr. Cannon. Aye.
The Clerk. Mr. Cannon, aye.
Mr. Bachus?
[No response.]
The Clerk. Mr. Inglis?
Mr. Inglis. Aye.
The Clerk. Mr. Inglis, aye.
Mr. Hostettler?
Mr. Hostettler. Aye.
The Clerk. Mr. Hostettler, aye.
Mr. Green?
Mr. Green. Aye.
The Clerk. Mr. Green, aye.
Mr. Keller?
Mr. Keller. Aye.
The Clerk. Mr. Keller, aye.
Mr. Issa?
Mr. Issa. Aye.
The Clerk. Mr. Issa, aye.
Mr. Flake?
[No response.]
The Clerk. Mr. Pence?
Mr. Pence. Aye.
The Clerk. Mr. Pence, aye.
Mr. Forbes?
Mr. Forbes. Aye.
The Clerk. Mr. Forbes, aye.
Mr. King?
Mr. King. No.
The Clerk. Mr. King, no.
Mr. Feeney?
Mr. Feeney. Aye.
The Clerk. Mr. Feeney, aye.
Mr. Franks?
Mr. Franks. Aye.
The Clerk. Mr. Franks, aye.
Mr. Gohmert?
[No response.]
The Clerk. Mr. Conyers?
Mr. Conyers. Aye.
The Clerk. Mr. Conyers, aye.
Mr. Berman?
Mr. Berman. Aye.
The Clerk. Mr. Berman, aye.
Mr. Boucher?
[No response.]
The Clerk. Mr. Nadler?
Mr. Nadler. Aye.
The Clerk. Mr. Nadler, aye.
Mr. Scott?
Mr. Scott. Aye.
The Clerk. Mr. Scott, aye.
Mr. Watt?
Mr. Watt. Aye.
The Clerk. Mr. Watt, aye.
Ms. Lofgren?
[No response.]
The Clerk. Ms. Jackson Lee?
Ms. Jackson Lee. Aye.
The Clerk. Ms. Jackson Lee, aye.
Ms. Waters?
Ms. Waters. Aye.
The Clerk. Ms. Waters, aye.
Mr. Meehan?
[No response.]
The Clerk. Mr. Delahunt?
Mr. Delahunt. Aye.
The Clerk. Mr. Delahunt, aye.
Mr. Wexler?
Mr. Wexler. Aye.
The Clerk. Mr. Wexler, aye.
Mr. Weiner?
Mr. Weiner. Aye.
The Clerk. Mr. Weiner, aye.
Mr. Schiff?
Mr. Schiff. Aye.
The Clerk. Mr. Schiff, aye.
Ms. Sanchez?
Ms. Sanchez. Aye.
The Clerk. Ms. Sanchez, aye.
Mr. Van Hollen?
Mr. Van Hollen. Aye.
The Clerk. Mr. Van Hollen, aye.
Ms. Wasserman Schultz?
Ms. Wasserman Schultz. Aye.
The Clerk. Ms. Wasserman Schultz, aye.
Mr. Chairman?
Chairman Sensenbrenner. Aye.
The Clerk. Mr. Chairman, aye.
Chairman Sensenbrenner. Members who wish to cast or change
their vote?
The gentleman from Virginia, Mr. Boucher.
The Clerk. Mr. Boucher, aye.
Chairman Sensenbrenner. The gentleman from California, Mr.
Gallegly.
The Clerk. Mr. Gallegly, aye.
Chairman Sensenbrenner. Further Members who wish to cast or
change their votes? If not, the Clerk will report.
The Clerk. Mr. Chairman, 33 ayes and one nay.
Chairman Sensenbrenner. The motion to report favorably the
bill, as amended, is agreed to. Without objection, the bill
will be reported favorably to the House in the form of a single
amendment in the nature of a substitute incorporating the
amendments adopted here today. Without objection, the staff is
directed to make any technical and conforming changes and all
Members will be given 2 days as provided by the House rules in
which to submit additional dissenting supplemental or minority
views.
[Intervening business.]
[Whereupon, at 12:50 p.m., the Committee was adjourned.]