[Senate Hearing 109-458]
[From the U.S. Government Printing Office]



                                                        S. Hrg. 109-458
 
AN INTRODUCTION TO THE EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT AND 
                LEGAL ISSUES RELATING TO REAUTHORIZATION

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                              MAY 9, 2006

                               __________

                          Serial No. J-109-74

                               __________

         Printed for the use of the Committee on the Judiciary





                                 _____

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                       COMMITTEE ON THE JUDICIARY

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



                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas........     4
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     4
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     2
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, 
  prepared statement.............................................   226
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     2
Specter, Hon. Arlen, a U.S. Senator from the State of 
  Pennsylvania...................................................     1

                               WITNESSES

Davidson, Chandler, Professor Emeritus, Rice University, Houston, 
  Texas..........................................................     5
Hasen, Richard L., William H. Hannon Distinguished Professor of 
  Law, Loyola Law School, Los Angeles, California................     8
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University School of Law, New York, New York..............    13
McDonald, Laughlin, Director, ACLU Voting Rights Project, 
  Atlanta, Georgia...............................................    11
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Educational Fund, Inc., New York, New York.........     7

                         QUESTIONS AND ANSWERS

Responses of Richard L. Hasen to questions submitted by Senators 
  Specter, Cornyn, and Sessions..................................    35
Responses of Chandler Davidson to questions submitted by Senators 
  Cornyn and Leahy...............................................    42
Responses of Samuel Issacharoff to questions submitted by 
  Senators Specter, Sessions and Cornyn..........................    72
Responses of Laughlin McDonald to questions submitted by Senators 
  Specter, Kennedy, Schumer and Cornyn...........................    78
Responses of Theodore M. Shaw to questions submitted by Senators 
  Specter, Cornyn, Leahy, Kennedy and Schumer....................   150

                       SUBMISSIONS FOR THE RECORD

Davidson, Chandler, Professor Emeritus, Rice University, Houston, 
  Texas, prepared statement......................................   201
Hasen, Richard L., William H. Hannon Distinguished Professor of 
  Law, Loyola Law School, Los Angeles, California, prepared 
  statement......................................................   214
Issacharoff, Samuel, Reiss Professor of Constitutional Law, New 
  York University School of Law, New York, New York, prepared 
  statement......................................................   220
McDonald, Laughlin, Director, ACLU Voting Rights Project, 
  Atlanta, Georgia, prepared statement...........................   228
Shaw, Theodore M., Director-Counsel and President, NAACP Legal 
  Defense and Educational Fund, Inc., New York, New York, 
  prepared statement.............................................   264


AN INTRODUCTION TO THE EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT AND 
                LEGAL ISSUES RELATING TO REAUTHORIZATION

                              ----------                              


                          TUESDAY, MAY 9, 2006

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

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

    Chairman Specter. Good morning, ladies and gentlemen. The 
Judiciary Committee will now proceed. Today we have the second 
in a series of hearings on renewing the temporary provisions of 
the Voting Rights Act. It is clear that the Voting Rights Act 
of 1965 has been effective in combating State-sponsored 
discrimination against minority voters, but there is still some 
discrimination which persists, and any is too much on the 
important right to vote.
    The Supreme Court has held that we must establish a record 
and under the 14th and 15th Amendments, they have imposed a 
complex test of a program or legislation which must be 
congruent and proportionate. That has involved some grave 
complexities as they have interpreted, for example, the Civil 
Rights Act and Lane v. Tennessee and Garrett v. Alabama, making 
it very difficult to figure out exactly what is congruent and 
proportionate. There had been the test of substantial evidence, 
and in Lane they upheld the statute as it applied to access, 
and in Garrett they rejected the statute as applied to 
discrimination. So we have a challenge to establish a record 
which will withstand constitutional scrutiny.
    There has been a shift in the Supreme Court standards with 
the more recent cases. Justice O'Connor's opinion imposed a 
standard of ``influence districts where minority voters may not 
be able to elect a candidate of choice, but play a substantial 
if not decisive role in the electoral process.''
    Today we have a panel of experts to explore the 
constitutional, legal issues on very touchy subjects like how 
do you make a determination of substantial if not decisive? So 
we are in a tough line.
    And then in Reno v. Bossier Parish or Bossier Parish II, 
the Supreme Court held that Section 5 prohibited voting changes 
that had the purpose to retrogress or reduce minority voting 
strength.
    We have a distinguished panel, and we welcome you here, and 
very much appreciate your coming in to lend support to our 
efforts to establish this record.
    Now I want to yield to, and with my compliments, Senator 
Kennedy, for his outstanding leadership on this important 
subject.

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

    Senator Kennedy. Thank you very much, Mr. Chairman, and 
thank you for setting these series of hearings that are going 
to be enormously important in terms of building the record in 
support of this legislation.
    I think all of us understand this is one of the most 
important undertakings that we will have in this Congress, the 
extension of the Voting Rights Act, and I think all of us are 
very encouraged by the extraordinary bipartisanship which has 
been demonstrated here in the Senate, as well as in the House, 
and between the House and the Senate, we are off to a very 
important and favorable start.
    I remember the 8 days of hearings that we had in this 
Committee in 1965, and the many days of debate on the floor, 
and we were able to pass the landmark civil rights law in the 
1965 Act, with President Johnson signing this legislation in 
the President's Room in the Capitol. None of us imagined at 
that time that this legislation would be necessary in the year 
2006 or into this century. But unfortunately, as the House 
record makes very, very clear, and other sources, that many 
Americans still face the barriers on voting because of race and 
ethnic background, the language-minority status, so the 
Congress must decide whether those barriers make the renewal of 
the Act, expiring provisions, necessary now, and in what form.
    As the Chairman has pointed out, part of this assessment is 
understanding the relevant legal framework, and he has outlined 
those challenges in his opening comments.
    So part of today's discussion may seem technical, but it 
really goes to the heart of protecting voting rights and 
ensuring that any bill we pass in this area gets it right.
    I thank the Chair and look forward to the testimony.
    Chairman Specter. Thank you very much, Senator Kennedy.
    Senator Sessions, would you care to make an opening 
statement?

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Briefly, Mr. Chairman. I would thank you 
for having a good panel today. I am not sure, we may need to at 
some point hear from attorneys general and Governors who have 
to work with the Act on a regular basis, but I think the panel 
will be fair, and have both sides be heard.
    Mr. Chairman, Alabama has a very grim history of voting 
rights in our State. Before 1965 only 19 percent of African-
Americans in our State were voting, and they were denied the 
right to vote with any number of tactics and strategies, but it 
was in many ways a ruthless decision just to deny them the 
right to vote, so that the majority of the white community 
could maintain power, and that is just what it was.
    The Voting Rights Act, however one feels about it in terms 
of constitutionality or how it was crafted, was one of the best 
things that ever happened to the State. We now have--at one 
point I think we were the No. 1 State in the Nation with 
African-American office holders. I think today that may 
continue to be true, or we may be No. 2. In this last 
Presidential election, according to the Census Bureau, a larger 
percentage of African-Americans voted than whites in the State 
of Alabama. Now, that is the goal of the Act, that was the 
purpose of the Act, to have that kind of thing occur.
    The large numbers of African-Americans holding important 
offices, for example--there were over 750 elected officials, 
who are African-Americans in Alabama. That includes a United 
States Congressman, eight State Senators, 27 members of the 
State House of Representatives, 46 mayors, and 80 members of 
county commissions, school board members, town council members 
and the like.
    So I just would first want to say that the people of 
Alabama understand that this change is good, and that the 
people of my State do not want to do anything that would 
suggest that there would be any interest in moving away from 
this great right of everybody to vote, and including African-
Americans in our State, and I think that is important to say. 
They do not want to fight over it. We are growing economically. 
We are doing well economically, and we want to continue to do 
so, and that would never have happened had the kind of 
discrimination in the '60s and before continued today. I want 
to be real clear about that.
    How we deal with the Act is something that is worthy of 
discussion. Some of our panelists have different ideas, and we 
would be delighted to hear them. I think we should think about 
this in a calm and reasoned and effective way, and not allow 
ourselves to be driven by racial politics or attempts to 
polarize votes, or attempts to gain political advantage on one 
side or the other. We ought to ask ourselves how is this Act 
working? What is necessary? How we should improve it if need 
be, and maybe some other areas of the country ought to be 
covered by it. Certainly I hear complaints in big cities. I 
never heard any complaints out of Philadelphia about votes, but 
I have in Boston and Chicago and New York, and so there are 
other areas of the country perhaps that need some of the 
provisions in here to apply to them.
    I am hopeful that we will have a good discussion, that we 
will reauthorize this Act in a way that guarantees that there 
is no backsliding on the right of African-Americans to vote in 
the south or in any other part of the country.
    One of the best things that has happened, I will repeat, to 
our State, is the full participation of African-Americans in 
public life, and that was denied to them before this Voting 
Rights Act was enacted.
    As we go forward, I would hope that we will think carefully 
about how to make it applicable to the State in effective ways. 
As a United States Attorney I had the responsibility of 
enforcing the Act. As Attorney General of Alabama for a short 
period, 2 years, I saw it from the State side. I see my 
colleague, Senator Cornyn, here; he is former Attorney General 
of Texas. You have to deal with it in a number of ways. So we 
have some perspective on the practical application of the Act 
that I think would be worthy of some discussion and detail as 
we go forward.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you, Senator Sessions.
    Senator Cornyn, would you care to make an opening 
statement?

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

    Senator Cornyn. Thank you, Mr. Chairman. Just briefly. 
Thank you for the opportunity, and thank you for conducting 
these important hearings. I can think of few issues more 
important to our country than full participation in the 
political process, and that is what we are here to try to 
guarantee and to continue.
    I particularly appreciate your courtesies, Mr. Chairman, in 
making sure that we have an orderly process and an opportunity 
to have a full and complete record during the course of these 
hearings, and I particularly look forward to hearing from the 
witnesses today and tomorrow and the coming weeks about the 
expiring provisions of Section 5 of the Voting Rights Act, and 
specifically about which jurisdictions throughout our Nation 
should be subject to Federal oversight in the future and why.
    I know that there are a number of significant changes in 
the legislation that has been introduced, including the 
overruling of a couple of opinions of the U.S. Supreme Court, 
and I think we ought to look at those very carefully.
    Finally, I would say that we all know that whatever we do 
as a Congress will be scrutinized in the Federal Courts, and 
part of our goal I think ought to be to make sure that, to the 
extent possible, we make sure that Congress will prevails, and 
that anything we do in terms of reauthorizing the Voting Rights 
Act is not susceptible to a likely successful challenge in the 
Federal Courts.
    So I appreciate very much the opportunity to be here and 
welcome each of the witnesses, I look forward to your 
testimony.
    Chairman Specter. Thank you very much, Senator Cornyn.
    Senator Sessions, Senator Cornyn and Senator Coburn had 
written especially to me on the issue of adequacy of the 
hearings and an opportunity for a wide variety of witnesses to 
appear, and I have assured them that that would be the case. We 
are trying to comply with the request of the House to move 
ahead.
    Senator Feingold has arrived. Would you care to make an 
opening statement, Senator Feingold?

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

    Senator Feingold. Just a couple of comments. Let me thank 
our witnesses for being here, particularly on such short 
notice. I have asked to be added as a co-sponsor of the 
reauthorizing legislation that the chairman and Senator Leahy 
have introduced, and I am glad that the Committee is moving 
forward with the hearings process.
    This bipartisan legislation sends a strong and important 
message that Congress remains committed to protecting 
constitutional rights of minority voters under the 14th and 
15th Amendments. I believe this legislation is crucial, and I 
look forward to its prompt approval in the Senate and the 
House.
    Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feingold.
    We turn now to our first witness, Professor Chandler 
Davidson, Professor at Rice University, and the Tsanoff Chair 
of Public Affairs Emeritus. He and Professor Bernard Grofman of 
the University of California directed about 30 political 
science historians and sociologists and voting rights lawyers 
in an effort to assess the impact of the Voting Rights Act in 
the South, and his resulting book, ``Quiet Revolution in the 
South'' won the Richard Fenno prize awarded by the American 
Political Science Association for the best book published on 
legislative behavior of that year. He holds a bachelor's degree 
from the University of Texas, a master's and Ph.D. from 
Princeton.
    Thank you for joining us, Professor Davidson. Our customary 
procedure is to have 5 minutes for statements by witnesses. 
Your full statements will be included in the record, and then 
we will turn to the panel for 5-minute rounds.

   STATEMENT OF CHANDLER DAVIDSON, PROFESSOR EMERITUS, RICE 
                   UNIVERSITY, HOUSTON, TEXAS

    Mr. Davidson. Chairman Specter, and distinguished members 
of this Committee, thank you for inviting me to testify before 
you today. I am deeply honored. The Voting Rights Act was the 
climax of the period described as the Second Reconstruction. 
Passed at the behest of President Lyndon Johnson by a 
bipartisan Congressional majority in 1965, its purpose is to 
enforce the 15th Amendment. It consists of both a permanent 
part applying nationwide, and a nonpermanent one consisting of 
features originally intended to expire in 1970. Congress, 
however, renewed and amended them in 1970, 1975 and 1982.
    The Act has targeted both major types of racial vote 
discrimination: disenfranchisement and vote dilution. The first 
is exemplified by literacy tests administered unfairly by 
whites. The second consists of procedures in predominantly 
white venues, which combined with racially polarized voting, 
prevent minority voters from electing their preferred 
candidates.
    The major permanent feature of the Act is Section 2, which 
applies nationally. It prohibits any voting qualification or 
practice, whose purpose or result is denial or abridgement of 
voting rights on the basis of a citizen's race, color or 
membership in one of four language groups. An important 
nonpermanent feature is Section 5. It requires all covered 
States and political subdivisions to submit proposed election-
related changes for preclearance, either to the Attorney 
General or the U.S. District Court for the District of 
Columbia, to ensure that the proposed change does not have the 
purpose and will not have the effect of denying or abridging 
the right to vote on account of race or color. Currently, the 
jurisdictions subject to preclearance include eight States in 
their entirety and parts of eight others.
    Another important temporary provision of the Act, contained 
in Sections 6 through 9 and 13, enables the Attorney General to 
send Federal observers to certain jurisdictions when racial 
vote discrimination appears likely on election day.
    Yet another temporary provision concerns citizens whose 
proficiency in English is limited. In 1975 Congress concluded 
that, ``through the use of various practices and procedures, 
citizens of language minorities have been effectively excluded 
from participation in the election process,'' including 
American Indians, Asian Americans, Alaska natives and citizens 
of Spanish heritage. Under different coverage formulas, Section 
4(f)4 and Section 203 require language assistance for these 
citizens.
    The Act has had a major impact in incorporating racial and 
language minorities into the polity. Perhaps the most striking 
evidence is the extraordinary increase in black elected 
officials in the South. In 1970 there were 565. In 2000, there 
were 5,579. Nonetheless, race is still a major fault line in 
American politics, and problems of racial discrimination in 
voting are widespread, if diminished.
    Research in 2005 by the National Commission on the Voting 
Rights Act, a task force created by the Lawyers' Committee for 
Civil Rights Under Law, focused on the extent to which the 
Federal Government and private citizens employed the Act to 
combat racial or language-group discrimination since 1982. 
Among its findings, the Justice Department sent 626 letters 
objecting to one or more proposed discriminatory election 
changes in Section 5 jurisdictions, and there would have been 
even more if some jurisdictions had not withdrawn their 
proposals after the Department had requested more information 
about them.
    The Department sent several thousand Federal observers to 
participate in 622 election day coverages when it had reason to 
expect racial problems at the polls. Not only did they 
sometimes report discrimination, their presence probably 
discouraged even more.
    A nationwide study of Section 2 lawsuits with results 
favorable to minority plaintiffs, conducted at the University 
of Michigan Law School, revealed 117 reported cases between 
1982 and 2005. For the same period, research by the National 
Commission, revealed 653 successful Section 2 cases, reported 
and unreported, in nine Section 5-covered States alone.
    In summary, the Commission's findings and other research 
point to a worrisome persistence of activities the Act was 
fashioned to prevent. For this reason, it is my opinion, as one 
who has written about the Act and its effects for more than 30 
years, that its nonpermanent features should be renewed.
    [The prepared statement of Mr. Davidson appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor Davidson.
    Our next witness is Mr. Theodore M. Shaw, Director-Counsel 
and President of the NAACP Legal Defense and Educational Fund, 
who has a reputation as one of the Nation's leading civil 
rights attorneys. Since joining the Legal Defense Fund in 1982, 
he has litigated school desegregation, capital punishment, and 
other civil rights cases. He has taught constitutional law at 
Michigan Law School, Temple Law School and New York Law School. 
He has a bachelor's degree from Wesleyan and a law degree from 
Columbia, where he was a Charles Evans Hughes Fellow.
    Thank you for coming in today, Mr. Shaw, and the floor is 
yours for 5 minutes.

STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL AND PRESIDENT, 
 NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW 
                              YORK

    Mr. Shaw. Thank you, Mr. Chairman, for inviting me to 
participate in this important hearing, and I thank the other 
distinguished members of the Committee.
    The Legal Defense Fund has been engaged in voting rights 
almost since its inception over six decades ago, and we have 
been engaged in the enforcement of the Voting Rights Act since 
the moment it was enacted. We have a very solid conceptual 
understanding of the Voting Rights Act, but our understanding 
is not limited to a conceptual analysis, as important as that 
is. It is tempered by experience in representing African-
American plaintiffs in litigation, including some of the most 
important cases involving the interpretation and application of 
the Voting Rights Act that have been decided by the Supreme 
Court in other cases. We have been involved in almost every 
major voting rights case before the Supreme Court. This 
experience is directly rooted in our representation of African-
Americans.
    The Voting Rights Act is an integrated statutory scheme 
that works to address one of this Nation's most difficult and 
deeply entrenched betrayals of democracy. It is only 
appropriate that Congress enacted one of the most vigilant laws 
to successfully address that betrayal.
    We recognize what has been called the new federalism, which 
the Supreme Court has articulated in the Boerne line of cases, 
and those cases have raised significant questions about the 
scope and the reach of Congressional authority under Section 5 
of the 14th Amendment. But even in recognizing that, we also 
recognize that in each of the cases that have followed Boerne, 
whether we are talking about Florida Prepaid, Kimel, Morrison, 
Garrett, Hibbs, Tennessee v. Lane, in each of those cases in 
which the Voting Rights Act has been referenced, the Court has 
held up the Voting Rights Act as an example of proportionality 
and congruence, and there is no indication on the part of the 
Court, certainly a majority of the Court, that the Voting 
Rights Act itself is unconstitutional.
    We believe that the Court has pointed to the Act as an 
example of the kind of proportionality that would survive 
Boerne and of congruence, and we recognize that the Court is in 
flux. It has changed. But no one can read the Court's tea 
leaves. The Legal Defense Fund believes that Congress, while 
respectful of the Supreme Court's admonitions concerning 
proportionality and congruence, should not, given the successes 
of the Act, undermine the strength of the Act by preemptively 
weakening it on anticipation of a hostility that exceeds 
anything that the Court has said.
    We believe that the best indication of where Congress is, 
is the Monterey County case, Lopez, that was decided, in which 
the Court declined to call into question the constitutionality 
of Section 5's region application.
    We also believe at the Legal Defense Fund that Congress 
should exercise an abundance of caution as it reauthorizes the 
temporary provisions of the Voting Rights Act, and restores the 
Voting Rights Act to its full strength. But we believe that an 
abundance of caution should be reflected, not in a weakening of 
the reach of the Act, but rather, in ensuring that the record 
is a strong record. That record exists as manifested in the 
reports that have been done by the Leadership Conference with 
respect to the States. It exists with respect to the National 
Commission, with respect to the ACLU report, and it is a strong 
record.
    Finally, some say that the Act is a victim of its own 
successes. We caution, by looking at the school desegregation 
experience, we caution what may happen when we remove the 
protection of the Constitution or civil rights initiatives or 
laws. There is a danger in back-sliding. There is a danger in 
resegregation of politics, just as we have seen in 
resegregation of public schools with the abandonment of 
desegregation efforts that were vigorously prosecuted and 
protected by the courts.
    Thank you, and I look forward to a question and answer 
period.
    [The prepared statement of Mr. Shaw appears as a submission 
for the record.]
    Chairman Specter. Thank you very much, Mr. Shaw.
    Our next witness is Professor Richard Hasen, the Hannon 
Distinguished Professor of Law at Loyola. He is the co-author 
of a leading case book on election law, and has authored more 
than three dozen articles on the subject, and his most recent 
book ``The Supreme Court and Election Law: Judging Equality 
from Baker v. Carr to Bush v. Gore.'' It is quite a treatise. 
He has his bachelor's degree from the University of California, 
has a master's, J.D. and Ph.D. from UCLA.
    We welcome you here, Mr. Hasen, and look forward to your 
testimony.

STATEMENT OF RICHARD L. HASEN, WILLIAM H. HANNON DISTINGUISHED 
  PROFESSOR OF LAW, LOYOLA LAW SCHOOL, LOS ANGELES, CALIFORNIA

    Mr. Hasen. Thank you very much, Chairman Specter, and 
Senators on the Judiciary Committee. I appreciate this 
opportunity to appear before you today to testify about Senate 
Bill 2703 concerning reauthorization of the expiring provisions 
of the Voting Rights Act.
    I come before you as a strong supporter of the Act, who 
believes the expiring provisions should be renewed in some 
form, but also as someone, who after studying this issue for a 
number of years, has deep concerns about the constitutionality 
of the proposed amendments. I believe the Act has been an 
unqualified success in a remarkably increasing minority voter 
registration and turnout, increasing the number of African-
American and Latino elected officials, and the ability of 
minority voters to effectively exercise their right to elect 
representatives of their choice.
    But I urge the Committee to spend the time to craft a bill 
that will both pass constitutional muster in the Supreme Court 
and do the important work of continuing to protect minority 
voting rights in this country.
    The constitutional issue, which I have explored in a Law 
Review article and have submitted to the Committee, is this: in 
recent years the Supreme Court has held that Congress has 
limited power to enact civil rights laws regulating the States. 
Beginning with the 1997 case, City of Boerne v. Flores, the 
Court has held that Congress must produce a strong evidentiary 
record of intentional State discrimination to justify laws that 
burden the States. In addition, whatever burden is placed on 
the States must be congruent and proportional to the extent of 
the violations.
    Beginning in 1965, Congress imposed the strong preclearance 
remedy on those jurisdictions with what the Supreme Court 
called a pervasive, flagrant and unremitting history of 
discrimination on the basis of race. In fact, Carolina v. 
Katzenbach, the Court upheld Section 5 of the Act as a 
permissible exercise of Congressional power.
    What has changed since 1965? Both the law and the facts. On 
the law, the Court, in my view, wrongly, has placed a higher 
burden on Congress to justify laws aimed at protecting civil 
rights. On the facts we have an evidentiary problem. Because 
the Act has been so effective, it will be hard to produce 
enough evidence of intentional discrimination by the States so 
as to justify the extraordinary preclearance remedy for another 
25 years.
    I am afraid that much of the evidence referenced in the 
bill's findings will not be enough for the Supreme Court. For 
example, the findings point to Department of Justice objections 
to preclearance requests by the States. As you can see from 
Figure 3 in my article, in recent years objections have been 
rare. In the most recent 1998 to 2002 period, DOJ objected to a 
meager 0.05 percent of preclearance requests. Updating these 
data, DOJ interposed just two objections nationwide overall in 
2004, and one objection in 2005.
    The problem with using objections as evidence of 
intentional State discrimination is unfortunately even worse 
than it appears. In the 1990's DOJ adopted a policy of 
objecting to certain State actions that were perfectly 
constitutional, a policy the Supreme Court later rejected.
    The House Judiciary Committee has put together a voluminous 
record to support renewal of Section 5. Although I have not yet 
reviewed that entire record, my impression from what I have 
reviewed is that the record documents isolated instances of 
intentional State discrimination voting. The vast majority of 
evidence relates to conduct that does not show constitutional 
misconduct by the States. Moreover, the record seems to show 
that the problems continue to exist across the Nation.
    The Court may insist on evidence that covered jurisdictions 
present greater problems than the rest of the Nation to justify 
the geographically selective preclearance remedy. I have heard 
the argument that the Court will give Congress a pass on 
Congress's requirements to produce evidence because Section 5 
has been such a good deterrent. I hope that that theory is 
right, but I am not confident that the new Supreme Court would 
be inclined to agree on this point. The problem with such a 
theory is that it would justify preclearance for an 
undetermined amount of time into the future.
    In addition to the problem of producing enough evidence of 
intentional State discrimination, there is the tailoring issue. 
That current Act uses a formula for coverage based on a 
jurisdiction's voter registration or turnout, and its prior use 
of a discriminatory tester device for voting, such as a 
literacy test. The proposed amendments would not update this 
formula in any way. The Act relies on data from 1964, 1968 or 
1972 elections. This turnout figures, particularly turnout in 
minority communities, bear little resemblance to turnout 
figures today.
    I recognize this is politically difficult, but Congress 
should update the coverage formula based on data indicating 
where intentional State discrimination in voting on the basis 
of race is now a problem or is likely to be one in the near 
future.
    Here are three additional steps that Congress should 
carefully consider to bolster the constitutional case. First, 
Congress should make it easier for covered jurisdictions to 
bail out from coverage under Section 5 upon a showing that the 
jurisdiction has taken steps to fully enfranchise and include 
minority voters. The current draft does not touch bailout, and 
few jurisdictions have bailed out in recent years.
    Second, Congress should impose a shorter time limit, 
perhaps 7 to 10 years for extension. The bill includes a 25-
year extension, and the Court may believe it is beyond 
congruent and proportional to require, for example, the State 
of South Carolina to pre-clear every voting change, no matter 
how minor, through 2031.
    Third, Congress should more carefully reverse only certain 
aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it 
easier for covered jurisdictions to obtain preclearance, 
meaning that the burden on covered jurisdictions is eased, and 
therefore, the law looks more congruent and proportional. 
Reversing the case as a whole, as this bill apparently would 
do, though the language in this respect is poorly drafted, 
could weaken the constitutional case for the bill. I would 
suggest tweaking rather than reversing the Ashcroft standard.
    Besides these changes, there are ways to strengthen the 
bill to assure that the new provisions of the Act remain a 
crucial element in assuring political equality and the right to 
vote for all Americans, regardless of race. At the top of my 
list, given recent troubling allegations of partisan 
manipulation of the preclearance process is for the Court to 
reverse the Supreme Court's holding in Morriss v. Gressette. 
This reversal would allow appeals of DOJ decisions to grant 
preclearance in controversial and politically charged cases, 
such as those involving Texas redistricting and the Georgia 
voter identification law.
    Thank you for the opportunity to present these views. I 
look forward to your questions.
    [The prepared statement of Mr. Hasen appears as a 
submission for the record.]
    Chairman Specter. Thank you, Professor Hasen.
    Our next witness is the Director of the American Civil 
Liberties Union Voting Rights Project, Laughlin McDonald. He 
has had a leading role in litigating the Voting Rights Act of 
1965, being involved in almost three dozen lawsuits, and has 
won some of the most significant victories for the ACLU on 
issues such as enforcement of one person-one vote. An author of 
five books, has more than a dozen articles on voting 
discrimination, he received his bachelor's from Columbia and 
his law degree from the University of Virginia.
    Thank you for coming in today, Mr. McDonald, and the floor 
is yours.

 STATEMENT OF LAUGHLIN MCDONALD, DIRECTOR, ACLU VOTING RIGHTS 
                   PROJECT, ATLANTA, GEORGIA

    Mr. McDonald. Thank you very much, Mr. Chairman, and 
members of the Committee.
    On behalf of the ACLU, I would like to express our strong 
support for the pending bill, which would extend Section 5 and 
remedy the Bossier II and Georgia v. Ashcroft decisions.
    I also want to point out that the Section 5 provisions have 
been challenged a number of times, and all those challenges 
have been rejected. It was challenged in 1965 by six southern 
States in South Carolina v. Katzenbach. The 1975 extension of 
Section 5 was challenged by the city of Rome, Georgia, and was 
rejected by the Supreme Court. After the extension of Section 5 
in 1982, Sumter County, South Carolina filed yet another 
challenge to the constitutionality of the statute, and it said 
essentially that the 1982 extension was unconstitutional 
because the trigger coverage formula was outdated. The three-
judge court, however, rejected that challenge and held, 
``Section 5 had a much larger purpose than to increase voter 
registration in a county like Sumter to more than 50 percent.''
    People have talked about the Boerne decision, but I would 
echo Ted Shaw's comments that every one of the so-called Boerne 
decisions expressly cites the Voting Rights Act and Section 5 
as preeminent examples of Congressional authority to enforce 
the race discrimination provisions of the 14th and 15th 
Amendment, and it is especially worthy of note that the Supreme 
Court itself relied upon City of Boerne in 1999 in rejecting a 
challenge to the constitutionality of Section 5 made by the 
State of California. It held that legislation which deters or 
remedies constitutional violations can fall within the sweep of 
Congress's enforcement power, even if the process that 
prohibits conduct which is not itself unconstitutional and 
intrudes into legislative spheres of autonomy previously 
reserved to the States. I sometimes think the Supreme Court 
does not write with the felicity and clarity that it ought to, 
and certainly ``congruence and proportionality'' is a clumsy 
phrase.
    But I think also the sunset provisions of any extension of 
Section 5, as well as its limited geographic application, would 
further argue for its constitutionality, and Boerne, for 
example, makes precisely that point, that termination dates or 
geographic restrictions tend to ensure Congress's means are 
proportionate to ends legitimate.
    I think the case for extension of Section 5 has been 
documented very well by the various organizations and by the 
testimony of witnesses, both before the House and the Senate, 
and I will not repeat what is contained in those reports, but I 
would like to update the report that the ACLU filed by bringing 
to the Committee's attention two recent developments in the 
courts that were not covered in the report.
    In May 5, 2006, just several days ago, the Court of Appeals 
of the Eighth Circuit reversed a decision of the District Court 
which had dismissed a vote dilution challenge to elections for 
the city of Martin in South Dakota, and it concluded, 
``Plaintiffs proved by a preponderance of the evidence that the 
white majority usually defeated the Indian-preferred candidate 
in Martin aldermanic elections.'' And the Court also noted the 
ongoing history of intentional discrimination against Native 
Americans in Martin. Here is what the Court said: ``For more 
than a decade Martin has been the focus of racial tension 
between Native-Americans and whites...Most recently, resolution 
specialists from the Justice Department attempted to mediate 
and end the claims of racial discrimination by the local 
sheriff against Native-Americans.''
    Martin is the county seat of Bennett County, which is 
located between Shannon and Todd Counties, both of which are 
covered by Section 5. I think the history of discrimination 
reported in that decision and other decisions in Indian country 
really underscore the ongoing nature of discrimination and 
strongly support the continuation of Section 5.
    There is a more recent lawsuit that has been filed just 2 
weeks ago because Randolph County, Georgia, had implemented a 
voting change without complying with the Voting Rights Act. 
What they essentially did was to adopt a redistricting plan 
that took a black incumbent out of his majority black district, 
Mr. Cook, and put him into a majority white district. Well, 
given the existence of racial polarization in Randolph County, 
there was very little prospect that Mr. Cook, who had the 
overwhelming support of black voters, would be elected.
    We had a hearing before a single-judge court who granted a 
temporary restraining order, in effect enjoining the 
implementation of that change, and we have a hearing before a 
three-judge court later on this month. But all of that 
underscores continuing problems.
    And let me finally say that one of the most sobering facts 
to emerge from the report compiled by Congress is the 
continuation of racially polarized voting. I would suggest that 
everyone read the 2002 opinion by the three-judge court in the 
Colleton County case, and it said that, ``Racially polarized 
voting has seen little change in the last decade. Voting in 
South Carolina continues to be polarized to a very high 
degree.''
    And I would close, Mr. Chairman, by saying that the Supreme 
Court has called the right to vote a ``fundamental political 
right preservative of all rights,'' and the House and Senate 
bills will help ensure that that fundamental right continues to 
remain a reality.
    [The prepared statement of Mr. McDonald appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Mr. McDonald. What 
was the situs of the case involving Mr. Cook?
    Mr. McDonald. Randolph County, Georgia, Your Honor.
    Chairman Specter. Georgia?
    Mr. McDonald. Yes, sir.
    Chairman Specter. We have 9 minutes left on a vote, so we 
will recess very briefly, and we will return just in a few 
minutes. When the votes occur, that is our No. 1 duty, even 
with the distinguished panelists we have here today.
    [Recess 10:10 a.m. to 10:30 a.m.]
    Chairman Specter. We turn now to the final witness on the 
panel, Professor Samuel Issacharoff, Professor of 
Constitutional Law at New York University; lengthy career in 
legal education, having taught at Columbia, Oxford, University 
of Texas, and University of Pennsylvania; published 
extensively, including the book ``The Law of Democracy: Legal 
Structure of the Political Process''; a bachelor's degree from 
State University of New York, law degree from the Yale Law 
School, where he served as an editor of the Yale Law Journal.
    Thank you for joining us, Professor Issacharoff, and we 
look forward to your testimony.

      STATEMENT OF SAMUEL ISSACHAROFF, REISS PROFESSOR OF 
  CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF LAW, NEW 
                         YORK, NEW YORK

    Mr. Issacharoff. Thank you very much, Chairman Specter and 
members of the Committee. It is a great honor to be here. I 
began my legal career as a law student watching this 
Committee's deliberations in 1982 over the reauthorization of 
Section 5 and the amendment of Section 2, and it is a great--
    Chairman Specter. Did you write a comment for the Yale Law 
Journal on that?
    Mr. Issacharoff. I did, Your Honor.
    [Laughter.]
    Chairman Specter. Don't promote me, Professor.
    Mr. Issacharoff. It is embarrassing to have one's student 
note brought up.
    Chairman Specter. I wrote one myself. That is why I asked.
    Mr. Issacharoff. Several members of the panel have already 
spoken of the tremendous responsibilities and the need for 
caution on the part of this Committee, and I fully agree with 
those views. I think that the reason for caution is twofold.
    First, as has been amply explained and demonstrated, the 
Voting Rights Act has been the most effective civil rights 
statute that the Congress has ever passed, and it behooves this 
Committee to act cautiously in preserving its legacy and making 
sure not to derail what has actually transformed the face of 
politics in the United States.
    I think that the second source of caution is that the 
Supreme Court has sent mixed signals as to what the 
responsibilities of the Congress are with regard to any civil 
rights statute pursuing the aims of the 14th and 15th 
Amendment. Part of the signal is from cases like City of Boerne 
and the congruence and proportionality standard. Other times, 
however, is in the Hibbs case, the Court has granted this 
Congress wide berth to pass a statute that seems appropriate to 
whatever this Congress believes needs to be done to enforce the 
Reconstruction Amendments.
    I think, however, that a major source of constitutional 
tension arises with the coverage formula for jurisdictions 
under Section 5 of the Voting Rights Act. The bulk of the 
coverage of Section 5 today is still triggered by voter turnout 
figures from 1964, a date that seems remote in the approaching 
2007 expiration, and risks appearing constitutionally 
antiquated by the proposed next expiration date of 2032. By my 
calculation, in 2032 the youngest eligible voter from 1964 will 
be 86 years old.
    I have prepared written comments and submitted a copy of 
the Law Review article on some of the issues involved in 
reauthorization. I thought I would direct my comments briefly 
to five issues that I think this body might consider in 
reauthorizing Section 5 in a way that gives it greater 
constitutional protection and may also give it greater 
effectiveness.
    First, I would recommend that the unit of coverage be moved 
from the States to political subdivisions of the States. I 
think that virtually every objection from the Department of 
Justice over the last 5 years, or maybe even more, on matters 
not having to do with redistricting has been directly to local 
jurisdictions and not to the States.
    Second, I think that is important, as Professor Hasen said 
a minute ago, to liberalize the bailout provisions. I think 
that moving the scope of coverage from the States to the 
political subdivisions would have that effect. I think that it 
also would help the Act if bailout provisions were more 
objective based upon lack of objections by the Justice 
Department or lack of any affirmative lawsuits under Section 2 
or other claims of minority vote harassment.
    Third, I think that if we were to start from scratch today, 
we might consider a different kind of administrative mechanism 
other than the preclearance, and one way of thinking about this 
is that preclearance is extremely onerous and applies an ex 
ante and ahead-of-time review much like the FDA to any proposed 
change. One could also imagine a Securities and Exchange 
Commission type reporting system that covered jurisdictions who 
have not actively violated the Act in the last 5 years, or some 
defined period, would be required to post on a website any 
proposed change and the reasons for it and be subject to either 
affirmative litigation under Section 2 or simply a false 
statement litigation.
    Fourth, I would expand the jurisdictional reach of Section 
5 by allowing this disclosure regime to be applied to any 
jurisdiction that has been found guilty of a Section 2 
violation or that has engaged in affirmative actions against 
minority voters.
    And, finally, I think that there is reason for concern with 
the language on the overruling of Georgia v. Ashcroft, and I 
think that the reason for the concern is that the current 
statute faces a climate very different from that in 1965 in 
that you have real bipartisan competition in most of the 
covered jurisdictions today, which means that certain features 
of conduct, State conduct, will not go by unattended, will not 
simply pass muster without anybody realizing. And I would 
recommend removing statewide redistricting from Section 5 
overview altogether. That has been an area of some controversy 
with the Department of Justice, and it has been an area where 
there is plenty of litigation in every redistricting anyway, 
and I don't think Section 5 worked particularly effectively 
there.
    Thank you.
    [The prepared statement of Mr. Issacharoff appears as a 
submission for the record.]
    Chairman Specter. Thank you very much, Professor 
Issacharoff.
    Focusing on the standards from Boerne III, there must be a 
showing that it is ``recent in time and persists to the present 
day.'' Professor Davidson, what is the best evidence that 
discrimination persists to the present time? I am going to ask 
every one of you that question because the critical aspect of 
our record is to show just that.
    Professor Davidson?
    Mr. Davidson. One example of it is certainly the large 
number of Section 5 objections since 1982, and it is true--
    Chairman Specter. Did they persist right up to the present 
time?
    Mr. Davidson. There have been very few in recent years. 
There are a number of possible explanations for that. I think 
some of them have been mentioned this--
    Chairman Specter. Well, I am not looking for explanations 
as to why not. I am looking for evidence as to what is. What is 
the best evidence of discrimination right up to the present 
time?
    Mr. Davidson. I had the privilege of attending several of 
the--in fact, most of the hearings that the National Commission 
on the Voting Rights Act held this past year, regional hearings 
around the country. And I was struck at every one of them by 
the testimony of people talking about racially polarized voting 
in their areas, talking about difficulties that some members of 
minority communities had faced at the polls.
    Chairman Specter. So you think it continues right to the 
present time.
    Mr. Davidson. Yes, sir, I do.
    Chairman Specter. I only have a few minutes, so I want to 
move to Mr. Shaw with the same question. Best evidence that it 
exists now, Mr. Shaw?
    Mr. Shaw. I think the record as it stands now is replete 
with examples of ongoing discrimination. Let me point to one, 
and also, I want to use it as an opportunity to address one of 
the suggestions that Professor Issacharoff has made.
    In Louisiana, in the last decennial redistricting, or after 
the last decennial redistricting, Louisiana, the State of 
Louisiana, sought preclearance of its plan for the State House 
of Representatives and filed the Declaratory Judgment Act in 
the D.C. District Court rather than seeking preclearance. And 
among the things that it was trying to do, it wanted to have a 
redistricting plan that eliminated one black opportunity 
district in Orleans Parish. The State argued that there ought 
to be proportionate representation for white voters in Orleans 
Parish, even though it was not arguing that black voters ought 
to have proportionate representation statewide. There was no 
replacement district that was created. Its novel theory was 
based in part upon population loss in Orleans Parish over the 
prior decade.
    That plan ultimately did not work. It was not successful. 
But it was a statewide attempt that would have been 
discriminatory and it would have harmed the voting rights of 
African-Americans. And I also point to it as an example of how 
we still have these problems on the statewide level.
    I agree also with Professor Davidson about the importance 
of racially polarized voting, which people underrecognize in 
terms of its significance and how it interacts with 
redistricting schemes and ways that perpetuate discrimination.
    Chairman Specter. Did you want to make a comment on what 
Professor Issacharoff said?
    Mr. Davidson. Pardon me?
    Chairman Specter. Did you want to make a comment on 
something that Professor--
    Mr. Davidson. Yes. Well, I tried to do it just now. The 
point I am making, is that Professor Issacharoff's view is an 
interesting idea, but I strongly disagree with the notion that 
State level redistricting should drop out of Voting Rights Act 
protection. The Louisiana redestricting is an example of what 
one State was doing that was a clear violation of the Voting 
Rights Act.
    Chairman Specter. My time is limited, so what I am going to 
ask Professor Hasen, Mr. McDonald, and Professor Issacharoff to 
do is to submit in writing the best evidence that you know that 
the discriminatory practices exist right up to the present 
time. I want to have as strong a record as we can on that 
point.
    Then I would also ask you to submit one other point in 
writing. We are a little constrained on time today because we 
have the Brett Kavanaugh hearing this afternoon. We have an 
extraordinarily busy Judiciary Committee schedule, and we are 
also preparing for the immigration work next week. But what I 
would like you to do is address the question of the Supreme 
Court standard on Boerne of congruence and proportionality as 
to whether there is anything that the Congress can do 
legislatively.
    I am very much concerned about the Supreme Court striking 
down our acts, as they did in Morrison, because of our ``method 
of reasoning.'' And Justice Scalia has been very critical of 
the proportionality and congruence test, saying that it is the 
Court's effort to make Congress do our homework, treating us 
really like schoolchildren. And it is such an ephemeral and 
undefinable test which leads to policy-driven decisions. I 
would like you scholars to give the Committee suggestions, if 
you have any, as to how we deal with that or if we can deal 
with it in a legislative context.
    Senator Feingold?
    Senator Feingold. Yes, thank you, Mr. Chairman.
    Mr. McDonald, we have heard testimony from Professor Hasen 
that there is an ``evidentiary problem'' in terms of 
reauthorizing certain expiring provisions, and that it will be 
difficult to produce evidence of intentional discrimination by 
the States that can withstand a Supreme Court challenge.
    Now, from what I have heard, the testimony before the House 
Judiciary Committee as well as reports by groups like the ACLU 
provide compelling evidence to the contrary. Given your 
extensive work on current voting rights litigation, could you 
please share your views on this assertion?
    Mr. McDonald. Well, one of the things that we tried to do 
was to make the very best case that we could for the need to 
extend Section 5, and we attempted to do that not by making, 
you know, statements on our behalf but by having the Department 
of Justice's findings be presented to the Committee, by having 
the Court's findings be presented to the Committee. And one of 
the critical things, I think, is that people need to talk to 
minorities in these communities. I mean, go to Randolph County, 
Georgia, and hear Bobby Jenkins, who is the plaintiff in this 
recent lawsuit that we filed, and he will tell you about the 
reality of racial division and polarization. Talk to Beulah 
Dollar, who is a black woman elected from a majority black 
district in Telfair County, Georgia. I had a long conversation 
with her the day that I left Atlanta on Monday about a new 
voting practice being implemented in that jurisdiction, and I 
wrote a letter pointing out to the judge of probate that they 
were implementing what probably was a change in voting that 
needed to be precleared under Section 5.
    But in our report, we talked about the approximately 293 
cases that we have been involved in since 1982 and have let 
people who are plaintiffs in those cases speak for themselves, 
report the findings of the courts, and the stipulations that 
parties have made. I think it is a very strong record for the 
continued need for Section 5.
    Senator Feingold. Mr. Shaw, Professor Issacharoff testified 
that legislation that is hostile to minority interests will 
face ``political objections'' as well as litigation under 
either Section 2 or the Constitution. This seems to be shifting 
the burden back to individuals to fight for their rights as 
opposed to keeping the burden on those charged with crafting 
the law for jurisdictions with a history of discrimination.
    Many advocates of the Voting Rights Act have made the case 
regarding the importance of deterrent effects of the expiring 
provisions of the Act, in particular, Section 5 and Section 
203. Can you explain this argument to us?
    Mr. Shaw. Senator, the testimony that we have heard about 
concerns with respect to Section 5 and a number of Section 5 
objections recently does not capture the entire field that is 
in play. So, for example, the Department of Justice entertains 
requests for information from jurisdictions that sometimes 
obviate the necessity of a Section 5 adverse finding. And that 
is still the Act working in a powerful way.
    The fact is, from what we understand, that also some 
jurisdictions do not engage in actions they otherwise might 
take that would have a discriminatory, retrogressive, or 
dilutive effect because of the existence of Section 5 and the 
preclearance requirements. And, of course, while my testimony 
did not focus on Section 203, we also believe that Section 203 
ought to be extended because it has helped to extend democracy 
in a meaningful way.
    But the main point here that I am trying to make is that 
both with respect to the effect of the existence of Section 5 
on jurisdictions that otherwise would engage in discriminatory 
activities and with respect to the request for information, the 
Act works powerfully in ways that may appear under the radar 
screen that may not appear easily in statistics.
    Senator Feingold. Thank you, Mr. Shaw.
    Back to Mr. McDonald. You have made the point that 
objections by the Department of Justice are not necessarily the 
best measure of whether there is a continued need for expiring 
provisions, such as Section 5. Is there any way to measure the 
deterrent effect of these provisions? And are there other ways 
of gauging whether they are still needed?
    Mr. McDonald. Well, some jurisdictions openly say that they 
are going to make a voting change, but in doing so they must 
comply with Section 5. I know the State of Georgia just last 
year made some changes to its redistricting plan, and they 
adopted a resolution that they would comply with Section 5. And 
the jurisdictions just do not want to have that struggle.
    Nobody has really mentioned another critical role that 
Section 5 plays, and that is, the courts routinely apply it. 
Redistricting is such a politically charged issue that so many 
States are simply unable to do it. South Carolina has not 
redistricted itself constitutionally in three decades. Georgia 
was unable to do it this time around. So the courts ended up 
doing it, and all of those courts in South Carolina and in 
Georgia expressly said that in adopting plans they would comply 
with the non-retrogression standard of Section 5 and the racial 
fairness standard of Section 2.
    So Section 5 plays a very important role that does not 
necessarily have only to do with preclearance decisions by the 
Attorney General.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Specter. Thank you very much, Senator Feingold.
    Senator Sessions has graciously agreed to chair the balance 
of this hearing, so I turn the gavel over to him.
    Thank you very much, gentlemen, for coming in. Your 
testimony is very, very important. I regret to leaving a little 
early, but we have the Kavanaugh hearing on tap for 2 o'clock 
this afternoon.
    Thank you very much, Senator Sessions.
    Senator Sessions. [Presiding.] Well, Mr. Chairman, we know 
you are not afraid of work, so you are doing something, I am 
sure.
    [Laughter.]
    Senator Sessions. No one works harder at keeping this 
Committee going and dealing with the issues we have to deal 
with.
    Chairman Specter. Thank you.
    Senator Sessions. You know, as I indicated in my remarks, 
there was very, very real discrimination, particularly in the 
South, and perhaps other areas of the country, but certainly in 
the South, for a number of years, and over these 40 years a lot 
has changed. It really has.
    I would like to ask, Mr. Hasen, if you would explain the 
purpose or the theory, as you understand it, for the fact that 
Section 5 was not permanent at the time it passed and how we 
should think about that today in your view.
    Mr. Hasen. Thank you, Senator. Section 5 was put in place 
by Congress after it became clear that a number of 
jurisdictions with a history of discrimination in voting on the 
basis of race were playing a kind of cat-and-mouse game where 
the Federal Government would come in, challenge a particular 
voting rule. That voting rule would then be changed to a 
different voting rule, which would also be discriminatory. And 
the purpose of the preclearance provision was to put the burden 
on those jurisdictions that showed a history of discrimination 
to justify any changes in their laws to show that they did not 
have a discriminatory purpose or effect.
    The reason that the provisions were set up as temporary is 
because of the unprecedented nature of the kind of remedy that 
preclearance is. Never before or since has a State or unit of a 
State had the requirement to have to get permission to change 
its laws from the Federal Government. Some have analogized it 
to a kind of Federal receivership. So it was what the Supreme 
Court in the Katzenbach case called ``strong medicine.'' And so 
given that it was strong medicine, Congress decided, wisely, I 
believe, that it should be a temporary measure and that by 
having these periodic sunsets and the ability for these 
hearings, it gives a chance for Congress to evaluate whether 
the strong medicine is still necessary.
    And so I think that as you go forward and think about 
extension, it would be worthwhile to look at the evidence and 
determine how far should extension go, both geographically and 
temporally. Should the same provisions that were in place based 
on data in 1964 be in place in the future for the next 25 
years, up until 2031? And should the same areas be covered?
    So I think it is Congress's obligation now to decide 
whether that strong medicine should continue in the same form 
as it has or whether changes are necessary given changes that 
have occurred on the ground in these covered jurisdictions and 
in the rest of the United States.
    Senator Sessions. Thank you for saying that. I think it is 
important. For example, we do have--tend to have racially 
polarized voting, I believe as Mr. McDonald said. But my home 
city of Mobile, a majority-white city, just elected an African-
American mayor last month. And he mounted very aggressive 
campaign, and he had biracial support and was funded 
aggressively and able to compete on TV and that kind of thing 
and won the race with a rather significant vote.
    So I think there is progress occurring out there, and 
whether things are perfect or not--we know that is not so. We 
know we are not perfect, and we still have problems.
    With regard to some of the matters that I hear complaints 
about from district attorneys and county attorneys, maybe, Mr. 
Hasen, you would comment. For example, if you move a voting 
place from a school on one side of the street to the courthouse 
on the other side of the street, the county or the governmental 
entity must petition the Department of Justice to approve that 
and demonstrate that it did not have an intent to discriminate. 
And at some point, you know, people begin to get a little 
irritated about that. I mean, they had no problems. They may 
have African-American officials. Maybe every person in the 
county--all office holders could be African-Americans, as some 
are. Are there things like that that you think we ought to 
consider in terms of making the Act fit the challenges of today 
rather than problems perhaps in the past?
    Mr. Hasen. Well, you are right that one of the things about 
the preclearance provision is that it applies to every voting 
change, no matter how minor or major, so everything from moving 
a polling place across the street to a statewide redistricting. 
And so there are a number of creative ways that you could think 
about making changes.
    One thing that I think would go a long way toward helping 
the constitutional case and also take off some of the burden in 
a lot of these jurisdictions is to ease the bailout 
requirements. For example, if the Department of Justice was 
required to proactively go through, pick out those 
jurisdictions that meet the bailout criteria, and say, you know 
what, you have no history of discrimination, you have taken 
steps to increase minority voter turnout and participation, we 
think that you should apply for bailout.
    If the burden was put on the Department of Justice rather 
than on the States, the States just--they are used to--the 
covered States are used to preclearance. They know how to do 
that. Bailout could be made a lot easier, and this would 
actually also help the constitutional case showing that the law 
is going to then be focused on places that continue to have a 
history of discrimination. So you can really use the bailout to 
winnow out those places that have made significant progress on 
the basis of race, and so that those places that are doing well 
will not have to go through the kind of preclearance for these 
minor types of changes.
    Senator Sessions. I could not agree more. I think that 
really makes sense. And just briefly, Professor Davidson, you 
have studied the history of this. I cited the numbers that in 
Alabama, according to the Census Bureau, in 2004 a larger 
percentage of African-Americans voted than whites. I guess we 
would have to conclude that is a fairly significant historical 
event. Would you not agree?
    Mr. Davidson. Yes, sir. I think there is no question but 
that African-Americans have made a great deal of progress over 
the last 40 years, and one of the things that several people at 
our hearings said was essentially to acknowledge that fact. I 
don't think there are very many people who would deny that 
progress has been made.
    I think sometimes it is important to take a historical look 
at our race problems in the United States, and if you go back 
to the founding of our Republic, which was--what?--in 1790 or 
somewhere around there, up to the present, the current period 
from 1965 forward has been the longest period in which African-
Americans have enjoyed relatively free access to the polls and 
the right to vote--some, what, 40 years out of about 220 years 
in American history.
    And I think that fact is in the minds of a lot of people. 
Is 40 years really long enough given the history of vote 
discrimination and other kinds of discrimination in this 
country?
    Senator Sessions. And I would say this: There are a lot of 
African-American citizens alive in our State today that felt 
that discrimination. It is not an academic matter to them. And 
they are sensitive about it to this very day, and I think we 
should recognize that. And that is why I think most of us are 
prepared to accept and support a reauthorization, as long as--
but I think in the course of it, if we can make it better, we 
should do that.
    Senator Cornyn, I would recognize you, the former Attorney 
General of Texas, who has had to wrestle with some of these 
issues, I am sure. We did in Alabama.
    Senator Cornyn. Thank you. Thank you, Mr. Chairman. And, 
again, thanks to the panel for being here.
    I am struck by some of the--well, first of all, let me just 
say, I cannot think of any greater self-inflicted wound that 
the country could have inflicted upon itself than what this 
country did at its very founding to African-Americans. And we 
have, as Professor Davidson notes, had a checkered history in 
terms of improving equal justice and trying to achieve equal 
justice under the law to all citizens regardless of race or 
ethnicity or heritage. And I agree, we all want to remain 
vigilant in that effort.
    The process, I guess, by which we are getting started, 
though, concerns me a little bit. There is a bill that has 
actually been filed that makes findings, and now we are only 
beginning to gather the evidence. I guess from my previous 
experience on the bench, I am accustomed to getting the facts 
before we make findings and then reach conclusions. But be that 
as it may, I want to make sure that we are not indulging in 
some stereotypes but, rather, looking at what the facts are as 
they exist.
    I was struck, Professor Hasen, by the chart that you held 
up demonstrating that between 1998 and 2002, that when it came 
to preclearance requests by various political subdivisions, 
only 0.05 percent received objections by the Department of 
Justice. Did I interpret that correctly?
    Mr. Hasen. Yes, that is right.
    Senator Cornyn. And if we look at the slope of that line 
there, is it fair to conclude that that represents improvement 
in terms of the compliance of political subdivisions with the 
Voting Rights Act? Or would you--
    Mr. Hasen. Oh, it absolutely shows compliance. What it 
shows is that Section 5 has served as a deterrent to many 
actions that otherwise could have been discriminatory.
    Senator Cornyn. OK. And you mentioned in your opening 
statement, Professor Hasen--and then I want to turn to 
Professor Issacharoff because he alluded to this as well, there 
are triggers in the bill that go back to 1964 and 1968 and 
1972, and you would certainly agree that the circumstances were 
different, and let's just say worse, when it came to protecting 
the franchise of minority voters back in those years than exist 
today. Would you agree with that?
    Mr. Hasen. I think everyone on the panel would agree with 
that, yes.
    Senator Cornyn. And so I guess, Professor Issacharoff, you 
mentioned a number of, I think, very interesting ideas that we 
ought to consider seriously with regard to how the preclearance 
requirements should be addressed. But I guess for the members 
of the Committee and those who are not as versed as the panel 
is in the differences between Section 5 and Section 2, is there 
anything about Section 5 that offers a different standard of 
protection to minority voters than is otherwise provided in the 
Voting Rights Act in general? Or is it simply a matter of 
getting two bites at the apple, so to speak, one in the 
preclearance process and then one through litigation?
    Mr. Issacharoff. Well, there are several differences, 
Senator. First, of course, Section 2 is nationwide in its 
coverage, and Section 5 applies only to a select number of 
jurisdictions.
    I think that the Supreme Court in the Beer v. United States 
case set up very different standards between the two provisions 
or between the Constitution and Section 5 of the Voting Rights 
Act. So that Section 5, as presently construed, applies 
primarily to retrogression, to steps backward, and does not 
reach under the Bossier Parish II decision, does not 
necessarily reach intentionally discriminatory conduct, and 
certainly does not reach everything that would be violative of 
Section 2 if it was simply a carrying forward of the prior 
regime, of whatever was in place beforehand.
    I think more significantly what Section 5 does is it 
imposes a freeze upon State conduct. It operates under the 
assumption that State conduct is likely to be discriminatory 
unless proven otherwise and prohibits the States or their 
subdivisions from acting. And this was absolutely critical to 
the whole structure of the Voting Rights Act initially because 
Section 5 piggybacked on Section 4, which was a suspension of 
basically as many of the known obstacles to voting as could be 
fashioned in the statute, things like the literacy test, and 
then Section 5 was intended to freeze in place what the voting 
system looked like absent those discriminatory obstacles.
    Section 5 has evolved. I think one of the interesting 
features is that we are today more concerned with vote dilution 
than vote exclusion as such. If you look at the Department of 
Justice statistics in the 6 years beginning in 1997, there were 
something on the order of, I think, 46 or 42 objections lodged 
by DOJ. Only six of them had to do with voter exclusion, and 
the remainder had to do with vote dilution.
    So the Act keeps in place that freeze. We have tended to 
think of vote dilution being more a Section 2 matter, 
particularly after the 1982 amendments, and Section 5 now has 
to be a little bit retrofitted to deal with the new political 
realities.
    Senator Cornyn. Well, you touched on an issue that I think 
concerns some people, and that is, the presumption that the 
States that are covered by Section 5--I guess it is--is it 
roughly nine States plus some other counties and political 
subdivisions around the country.
    Mr. Issacharoff. Basically yes, Senator.
    Senator Cornyn. That there is some presumption that unless 
Congress imposes a preclearance requirement on those 
jurisdictions, somehow they will engage in intentional back-
sliding when it comes to the voting rights of minority voters. 
And I could tell you that, you know, I was not alive--well, I 
guess I was alive, but I was very young back in 1964. But I 
think as we have all acknowledged, we have had a tremendous 
change in the culture, and in terms of attitudes, I cannot 
imagine any set of circumstances under which there would be 
some back-sliding or reversion if Section 5 were not to require 
preclearance. But, rather, I do believe that given the amount 
of litigation that exists today on the Voting Rights Act in 
literally every step of the proceeding, we ought to be 
concerned with providing equal and uniform rules that can be 
applied nationwide.
    I see my time has run out. I will end here. Thank you, Mr. 
Chairman.
    Senator Sessions. Our Ranking Member, Senator Leahy?
    Senator Leahy. Thank you, Mr. Chairman. And I am sorry to 
be in and out on this hearing, because I think it is an 
extremely important one, and I appreciate all of you being 
here.
    Professor Davidson, you know, when I look at ``Quiet 
Revolution in the South''--and most of the people I have talked 
with, and certainly my staff have talked with, say that is as 
important a book as we are going to find on the subject.
    Mr. Davidson. Thank you.
    Senator Leahy. I think if we read that, we can all agree 
there have been improvements in minority access to voting since 
the original Voting Rights Act was passed in 1965. Some would 
say we no longer need it as a result of that.
    I was 25 when it passed, and I had only been able to vote 
for 4 years, and it was not an issue in my State of Vermont. 
But notwithstanding the progress, what risk do we face if we 
let the expiring provisions lapse? I mean, are we so solid in 
the gains that there is no risk of back-sliding?
    Mr. Davidson. If I could give you an anecdote from my home 
State of Texas--and I was amazed as I read in the newspapers as 
this unfolded. But in Waller County, Texas, which is the home 
of the historically black university, Prairie View, the town 
surrounding that university is still majority black. In the 
run-up to the 2004 elections, a couple of black Prairie View 
students ran for the county commissioner's court, the 
Democratic primary nomination. And the white district attorney, 
a former State district judge, announced that any Prairie View 
students--that Prairie View students voting who did not have 
parents living in that county, if they voted in that election 
they would be prosecuted.
    Prairie View figured very importantly in Section 5 
litigation in the 1970's when the Supreme Court held that 
students living in Prairie View as college students could vote 
in that county, even though their parents lived in other 
counties. But in spite of that fact, why, the students were 
threatened with prosecution, and the NAACP chapter of Prairie 
View A&M filed a Section 5 enforcement action, and the district 
attorney backed down.
    Senator Leahy. I take it by that you feel that we ought to 
keep Section 5.
    Mr. Davidson. Yes, I do. That is just one anecdote, I 
realize, but--
    Senator Leahy. I know there are many others, and I was 
thinking that--I think I know what Mr. Shaw's response would be 
on this, but we have an extensive record--11 hearings in the 
House of Representatives, 50 practitioners testified, elected 
officials advocates, academics, State-by-State reports 
detailing discrimination in Section 5, and 203 covered 
jurisdictions since 1982, the Voting Rights Project's 800-page 
report, the National Commission reports and so on. We had 30 
other witnesses here.
    Based on all this record, do you believe the Congress has 
the power under the 14th and 15th Amendments to reauthorize the 
expiring provisions of the Voting Rights Act?
    Mr. Shaw. Senator, I believe that Congress does have that 
power. As we have talked about here, we are all concerned about 
the Boerne line of cases with respect to the issues of 
federalism that it raises. But there are also issues of 
separation of power, and I think that Congress certainly has 
the power to enact this legislation based on this record.
    Senator Leahy. And would you also agree with Professor 
Davidson that this is not the time to let it expire?
    Mr. Shaw. That is right. We have made tremendous progress, 
but everyone here agrees that there is still work to be done.
    Senator Leahy. I realize my time is almost up, but I am 
going to actually submit some questions to each of you. But, 
Mr. McDonald, in the Voting Rights Project report, you detailed 
a couple recent examples, modern examples, one in Martin, South 
Dakota, in which the Eighth Circuit found last week--and I am 
not going to get into ancient history, but last week found a 
history of ongoing intentional discrimination against Native 
Americans. You cite another very recent example in Randolph 
County, Georgia, intentional discrimination against black 
voters in that county. It is a county which has a history of 
going from one tactic to another, dating from before the Voting 
Rights Act to the present.
    From a constitutional point of view, are these examples 
that Congress can rely on to support the extension of Section 
5?
    Mr. McDonald. I certainly think so, Senator. And as people 
were responding to your question, I just recall that the State 
of Georgia filed a brief in the Supreme Court in Georgia v. 
Ashcroft, and that would have been--I hope I am getting my 
dates correct, but several years ago, 2003, in which they made 
quite extraordinary arguments indicating what would happen if 
we did not have Section 5.
    They argued, for example, that we should abolish the 
retrogression standard. They argued in the Supreme Court that 
racial minorities should never be allowed to participate in the 
Section 5 preclearance process. This is quite an extraordinary 
argument given the fact that racial minorities were the very 
group for whose protection Section 5 was passed.
    And then they argued that you could abolish all the 
majority-black districts consistent with Section 5. But you 
look at a State like Georgia, I mean, there have been some 
people who have won an election, minorities, in jurisdictions 
that were not majority black, but every member of the State 
Senate is elected from a majority-black district. Probably 95 
percent of those in the House of Representatives were elected 
from majority-black districts.
    If you let the State do what it said it could do in its 
brief in Georgia v. Ashcroft, it would have a devastating 
impact on the ability of minority voters to elect candidates of 
their choice. That is the reality.
    Senator Leahy. But you are not eager to let Section 5 
lapse?
    Mr. McDonald. I do not think that the Georgia fox should be 
put in charge of the voting rights henhouse, Senator.
    Senator Leahy. Thank you.
    My other questions, I see, you know, I have not had a 
chance to ask Professor Hasen or Professor Issacharoff, who has 
helped me on many, many other occasions with his erudition, and 
I will have to submit those for the record. But I thank the 
Chairman for letting me slip in here.
    Senator Sessions. Thank you.
    Senator Leahy. Senator Cornyn, I went a little bit over 
time, and I apologize for that.
    Senator Sessions. That is all right.
    Senator Leahy. It is an important subject.
    Senator Sessions. It is, and, Mr. McDonald, you know, this 
Act is a complex Act, and it raises quite a number of issues 
with regard to Georgia. I think it is important to note that 
the individual who filed the brief was Mr. Baker, was it not, 
the Attorney General?
    Mr. McDonald. He is African-American.
    Senator Sessions. African-American, Democratic, statewide 
elected Attorney General, and he had some concerns of a fairly 
technical nature, and I am not sure it is fair to characterize 
it quite the way you did. I am sure he would take a different 
spin on it if he were here today.
    Mr. McDonald. Yes, Senator. I would just say that people 
who are--he is an elected official, a politician, and they are 
subject to all kinds of pressures. I could simply point out 
that during the Reconstruction years, there were blacks who 
voted for racially segregated schools, who voted for poll 
taxes, and they did so for a lot of complex reasons. And the 
District of Columbia opinion in Georgia v. Ashcroft addresses 
that whole issue.
    But I think that the mere fact that a black is in the 
decisionmaking process does not and should not shield from 
independent constitutional review the acts that a State takes.
    Senator Sessions. Well, I am not sure Mr. Baker would 
appreciate suggesting that he was less than aggressive to 
protect the interests of African-Americans in Georgia, which I 
think you just did. And I think you are suggesting that for 
political reasons he did not follow the law. I think it is a 
complex thing. We could spend 30 minutes talking about the D.C. 
filing of that case and the jurisdiction. But I just wanted to 
raise that point.
    Let me ask Mr. Shaw and maybe some of the others here about 
the Voting Rights Act which identifies those jurisdictions 
subject to additional oversight by looking at voter turnout in 
the Presidential elections of 1964, 1968, and 1972. We have 
heard testimony about why we need to keep those dates in. Would 
you support adding the Presidential election of 2000 and 2004 
in order to pick up jurisdictions that may have begun 
discriminating since the 1970's?
    Mr. Shaw. Certainly, Senator, we believe that we should not 
have a cutoff date with respect to problems of discrimination 
that inform the Voting Rights Act reauthorization.
    With respect to those other dates and the trigger that 
originally was in place, I want to emphasize that that trigger 
served the purpose of identifying the jurisdictions where the 
problems originally existed. I believe that the record that we 
have now in some ways eclipses the old trigger to the extent 
that what we have done is looked at jurisdictions that have 
been covered and asked the question of whether there are 
continuing problems in those jurisdictions. And that is the 
basis on which the jurisdictions that are covered should 
continue to be covered.
    Senator Sessions. Mr. McDonald, would you share your 
thoughts on that, too?
    Mr. McDonald. Well, I think I share Ted Shaw's discussion. 
We do have a bailout, and for some reason, not many 
jurisdictions have attempted to bail out. And I think that may 
be for a combination of reasons. They do not think they would 
meet the standard, that being covered by Section 5 is really 
not that burdensome. But if there are jurisdictions that have 
clean records, there is plainly a procedure for them to bail 
out, which is another factor, I think, that underscores the 
constitutionality, the congruence and proportionality of 
Section 5.
    Senator Sessions. Professor Issacharoff, you suggest that, 
``The bailout provisions in Section 4(a) appear unduly onerous 
and not sufficiently geared to actual legal violations'' and 
recommend liberalizing it. How would you suggest changing that 
provision? And I would just note that it does strike me as odd, 
as Mr. McDonald suggested, that so few have taken advantage of 
it. It must be some problem here that is delaying that. Would 
you share your thoughts on it?
    Mr. Issacharoff. To my knowledge, there are only three 
counties in Virginia that have availed themselves of the 
bailout, at least in the last 20 years. I maybe have missed 
some, but on the Justice Department website, those are the only 
ones I could identify.
    It seems to me that the bailout was not intended to be 
acted upon with any ease, and that was part of the original 
implementation strategy of Section 4 and Section 5 together. 
The difficulty--
    Senator Sessions. Was the bailout a part of the original 
Act or the reauthorization?
    Mr. Issacharoff. It was a reauthorization. But it was 
integrated into the entire Section 4, Section 5 structure. It 
seems to me the difficulty with the bailout is that there are 
provisions which have--at least appear to be difficult for 
jurisdictions to meet, that the affirmative steps taken are 
ill-defined and hard to quantify. It is hard to figure out 
exactly what fits in there. I know that some jurisdictions in 
recent years have started to try to pursue this, the Virginia 
cases that I am aware of. It appears to me that if there--and 
my suggestion is that if there were a lesser administrative 
type of review available, something between full preclearance 
coverage and no coverage at all, that one could go to a bailout 
structure that was quite objective, absence-of-objection 
letters or absence of violations over a defined period of time, 
and make that much more of an administrative matter rather than 
a litigated matter. I think that right now jurisdictions that 
would try to bail out are, for the most part, looking at a 
litigated path. And I think jurisdictions are probably gun-shy 
about that.
    Senator Sessions. Well, it raises--certainly the counties 
spend a lot of money on lawyers, I've got to tell you. You 
know, they have to hire a lawyer to do their preclearance 
petition, and that may be as simple as moving a balloting place 
across the street. It could involve the most minute change in 
the ballot itself. There are a lot of things that they are 
required bureaucratically to do, and like you note, there are 
counties in Alabama and throughout the country that have never 
had--throughout the coverage of Section 5--who have never had a 
history of discrimination and some have certainly demonstrated 
since 1965 that they have no history of it. And perhaps that 
would be a step that we could take that would recognize and 
affirm areas of the country that are doing things correctly. 
Would you agree?
    Mr. Issacharoff. In part, Senator. I think the difficulty 
is that while these things seem trivial, things like moving the 
polling place across the street or changing the ballot a little 
bit, the history of disenfranchisement, particularly at the 
time of 1965, indicated that each and every one of them had 
been tried at some time or other in some place or other as a 
mechanism to frustrate the electoral aspirations of black 
Americans.
    Senator Sessions. I am well aware of that. I really am. And 
I fully understand that. However, the district may be 100 
percent African-American virtually or 100 percent white, or the 
whole area may be such, and there is just no apparent argument 
that can be made in some of these instances that it had any 
intent to discriminate. Yet they have to go through this 
petition process.
    Mr. Issacharoff. They do. It is an administrative burden. I 
agree with you on that. And I think that from my perspective 
the Act would be strengthened and its constitutionality would 
be strengthened if there were more recognition of what has 
transpired over the past 40 years, if there were more 
congruence now, to use the court's language, if there were more 
congruence between the actual performance of these counties or 
political subdivisions and their continued coverage. And part 
of that could be addressed with an eased bailout provision.
    Senator Sessions. Senator Cornyn?
    Senator Cornyn. Professor Issacharoff, I am aware of the 
argument--and I would like to have you comment on it--that when 
it comes to redistricting, there are sometimes strategic 
alliances that are struck between African-Americans and 
Republicans and to the detriment of white Democrats. Are there 
unintended consequences of the Voting Rights Act on 
redistricting that we ought to be aware of and address during 
the course of this reauthorization?
    Mr. Issacharoff. I think the most significant 
transformation in the covered jurisdictions since 1965 has been 
the erosion of the Democratic Party monopoly in these States. 
Almost all of them were one-party Democratic States in which 
there was no effective competition. I think that the Voting 
Rights Act, both Section 5 and Section 2, broke up the 
lockhold. It made districted elections possible, which 
paradoxically facilitated the election of Republicans in many 
of these jurisdictions and facilitated the rebirth of the 
Republican Party in many parts of the South.
    The Voting Rights Act applied to statewide redistricting 
has been a tremendous source of temptation for manipulation in 
my view by the Justice Department, unfortunately, and I say 
``unfortunately''--I refer to my own experiences in Texas, 
Senator. In the 1990's, I represented the State of Texas in its 
preclearance fight over its Congressional redistricting. Texas 
has gained three additional Congressional seats and created out 
of those three additional majority/minority districts. The 
Department of Justice objected. It was difficult to figure out 
what the retrogressive basis for the objection was, but while 
the objection was in place, there was an effort to redistrict 
through a court in Texas that would undo the plan that the 
State had put forward. At the time it was the Democratic Party.
    One of the sources of objections was that the district 
should have been more concentrated in their minority 
population, what the Supreme Court addressed quite caustically 
in cases like Miller v. Johnson. I think that through the 
1990's there was a view that Section 5 required creating 
districts that were as packed with African-American voters as 
possible. This had the effect of diminishing in my view, the 
effectiveness of the black franchise, diminishing in many 
States the electoral prospects of the Democratic Party, and 
there was a bit of a misshaped alliance between the interests 
of Republicans in many of these States and the interests of 
some minority voters in creating super-concentrated minority 
districts.
    Mr. Shaw. Mr. Chairman, may I get a shot at that?
    Senator Cornyn. Sure, Mr. Shaw. Go ahead.
    Mr. Shaw. Thank you, Senator.
    Senator Sessions. It is Senator Cornyn's time.
    Mr. Shaw. Pardon me?
    Senator Sessions. It is Senator Cornyn's time. He 
recognized you.
    Senator Cornyn. We would be glad to hear from you.
    Mr. Shaw. Well, thank you. Senator, just quickly on that, 
on the issue of unintended consequences of the Voting Rights 
Act, this is a function in part of racially polarized voting, 
and I think it is important to keep our eye on that continued 
reality. There are people who do blame African-American voters 
for the partisan losses of the Democratic Party. My view on 
this, our view on this is plainly that we in a nonpartisan way 
want to see the Voting Rights Act enforced. African-Americans 
ought to have the opportunity to elect representatives of 
choice like any other community or constituency in this country 
has, and African-Americans cannot expect it to be the ballast 
for any party by means of sacrificing their right to elect 
representatives of their choice.
    The other thing I want to emphasize is that the progress 
that we have made in this country, which is tremendous, did not 
happen serendipitously. It happened only as a consequence of 
the Voting Rights Act. I think we all recognize that. We have 
acknowledged it, and I think it is so important not to kill the 
goose that laid the golden egg.
    Senator Cornyn. Well, I appreciate your answer, and my 
purpose for asking the question is I want to make sure we have 
this complete understanding of reality and intended and 
unintended consequences alike. Obviously, this has a lot of 
political overtones as well in terms of electoral outcomes and 
advantaging or disadvantaging political parties. And I think we 
ought to just get it all out there and take a look at it and 
have a complete record and be guided by the facts, whatever 
they should show.
    To that extent, let me ask, you know, it is interesting to 
me that with only about nine States and some political 
subdivisions in other States covered by Section 5, it is 
interesting to hear States that are not covered, 
representatives, Senators, Congressmen, advocating the 
maintenance of the preclearance requirements of Section 5 in 
other States, not their own, which makes me wonder if it is a 
good thing, unequivocally a good thing why it does not apply 
nationwide. But we understand the political reality of that. It 
is unlikely those States that are not covered, their 
representatives are likely to cover them by Section 5.
    But let me ask, Professor Hasen, what empirical data--not 
anecdotes but empirical data--can you cite, if any, that 
indicates the position of minorities in covered jurisdictions 
to participate fully in the electoral process is substantively 
different from minorities outside the covered jurisdictions 
under Section 5?
    Mr. Hasen. I think that is the $64,000 question, and I 
think that--I am in the middle of going through the material in 
the House report. There certainly are examples, troubling 
examples that continue to occur in covered jurisdictions. I 
think Mr. McDonald's work on Indian country in South Dakota 
raises, I would say, the largest set of concerns, as well as 
Mr. Shaw mentioned a case coming out of Louisiana. There are 
still cases that I think--within covered jurisdictions that are 
troubling.
    One of the unanswered questions is whether the Supreme 
Court in reviewing the constitutionality of a renewed Section 5 
is going to require not only evidence that there are problems 
in covered jurisdictions, but that those problems are different 
in magnitude from the problems outside of covered 
jurisdictions.
    For example, you look at the Katz report, the report out of 
the University of Michigan, which looked at all the Section 2 
filings, there are significant problems, racially polarized 
voting and other problems that exist across the Nation and not 
just in the covered jurisdictions.
    If I could just add one other point?
    Senator Cornyn. Certainly.
    Mr. Hasen. Even if the Congress decides not to make 
significant changes before authorization to 2703 to deal with 
the constitutional questions, I think that some attention has 
to be paid to the language of the renewed Section 5. There is 
some new language in that provision that in the hands of 
judges, particularly in the hands of judges that might not look 
at legislative history, that could also have unintended 
consequences, to go back to your earlier point, and might not 
be read in the way that Congress intends. So I would hope that 
you would go back and look at that language as well.
    Senator Cornyn. Thank you.
    Mr. Chairman, obviously my concern is that we be guided by 
the facts and not by anecdotes, and I am sure--I mean, I am 
confident that we could probably identify misconduct, 
violations of the Voting Rights Act in all 50 States, and those 
ought to be vigorously prosecuted and those violations 
corrected. And the question is whether there is any rationale 
for disparate treatment anymore between those States that are 
covered by Section 5. And my hope is we would be guided by the 
empirical evidence and not anecdotes, because I am confident--
this is in Waller County that the conduct that Professor 
Davidson mentioned, which is reprehensible and fortunately was 
not successful, I am sure those kinds of examples could be 
found on an anecdotal basis anywhere--in many places, let me 
put it that way, in the country.
    Thank you very much, Mr. Chairman.
    Senator Sessions. Thank you.
    I would offer for the record Senator Leahy's statement into 
the record on his behalf, and I would like to followup, 
Professor Issacharoff and Professor Hasen, on the question that 
Senator Leahy asked you about, the constitutionality question.
    Based on your review of the House record, do you believe we 
currently have enough evidence to meet the Supreme Court's test 
in City of Boerne? Who wants to go first?
    Mr. Hasen. I have not reviewed the entire House record. 
First let me say that I think that the Supreme Court's standard 
is not sufficiently deferential to Congress and that, just 
speaking generally, the Court has applied too strict of a 
standard in terms of the kind of evidence that Congress has to 
come up with. From what I have reviewed so far of the House 
record, I am concerned that there will be five or more Justices 
on the Court who will not be satisfied. If the question is 
whether I would be satisfied, it is a different question. I 
think that--
    Senator Sessions. Are you one of those who believes in 
stare decisis like some of my colleagues on the Democratic side 
to such a degree that Boerne ought not to be re-evaluated? Or 
should the Court re-evaluate it if it is appropriate?
    Mr. Hasen. Well, Boerne was a change from the standard in 
Katzenbach, and I would like to see us go back to that. But we 
are living in the reality that we have now, which is that the 
Supreme Court is requiring much more evidence than it ever did, 
and it is not clear to me that the record as I have looked at 
it so far--and I have not completed the review--that it is 
going to satisfy a majority of the Supreme Court.
    Senator Sessions. What about you, Professor?
    Mr. Issacharoff. I would tend to agree with what Professor 
Hasen said. I think that while I have not gone through the 
entire record, I think the record shows that there are still 
significant issues with access to the ballot in the United 
States. One need not only look at the Section 5 record. One can 
look at the evidence before the Congress when it passed the 
Help America Vote Act.
    I think that the record is problematic with regard to a 
couple of features, and that is, whether the covered 
jurisdictions continue to be significantly different than the 
non-covered jurisdictions. If you look at the history of recent 
Section 2 litigation under the Voting Rights Act, one sees 
Section 2 moving more and more to areas where you have recent 
immigrants coming into the country, and those tend to be as 
likely as not, as best I can tell, places that are not under 
covered jurisdictions, places like Lawrence, Massachusetts, 
some of the smaller towns of Pennsylvania. So I think that that 
is problematic under the Boerne standard.
    I would also note, as this Committee is well aware, that 
the composition of the Court has changed, and that the likely 
median voter, as we talk about that in the Academy on the Court 
is probably Justice Kennedy at this point, and Justice Kennedy 
was a dissenter in Hibbs. And so if one looks at the track 
record of the Court, I think, unfortunately, one can expect 
much greater scrutiny of Congressional action than before.
    I also think that Congress is a co-equal body, and I think 
that the Court is misstepping in demanding a level of factual 
precision from Congress as if it were reviewing some agency 
determination or a lower court finding under a clearly 
erroneous standard or something of that sort.
    But, nonetheless, that is the world we live in, and I am 
concerned that the trigger is constitutionally difficult today. 
I am concerned that the extent of time and the time gap between 
the trigger and the proposed extension is a source of 
constitutional concern. And I think that the inability of 
jurisdictions to show compliance with the regulatory scheme 
effectively and to be able to bail out is also a source of 
constitutional concern.
    Mr. Hasen. May I add one other point?
    Senator Sessions. Yes, Professor Hasen, go ahead. And then 
I will followup.
    Mr. Hasen. I have heard a number of people say let's just 
pass this bill as it is and we will roll the dice in the 
Supreme Court, and if the Court strikes it down, we will come 
back and we will write something that will meet the Supreme 
Court standard. I think there is a danger to that, and 
primarily the danger is that it could--it could create some bad 
law that could call into question something like Section 2. 
Section 2 has been incredibly important. I would hate to see 
Section 2, which applies nationwide, I would hate to see that 
be undermined. And I am worried that not responding to the 
Boerne line of cases--by Congress not doing that, it could have 
some unintended consequences in terms of other provisions of 
the Voting Rights Act.
    Senator Sessions. Would you explain for the people that 
might be listening here today who are not really attuned to it, 
as fairly as you can, maybe both sides, as succinctly as you 
can, what the issue is here? What is it? What issue is the 
Supreme Court concerned about? It is not that they do not care 
about voting rights. It is not that they do not respect 
Congress, in my view. I think it is a concern that we may be 
crossing a line here that violates fundamental constitutional 
protections.
    Could you articulate what they are, at least?
    Mr. Hasen. Well, both the 14th and the 15th Amendments 
contain provisions giving Congress the power to enforce those 
amendments, so to enforce the Equal Protection Clause, to 
enforce the right to vote without discrimination on the basis 
of race. And so these lines of cases, what we have been calling 
the Boerne line of cases, address how much Congress can tell 
the States what to do in the area of civil rights.
    Senator Sessions. But it is more than that, is it not? 
Doesn't it go to the fundamental question of the role that race 
plays in legislation?
    Mr. Hasen. Well, not necessarily.
    Senator Sessions. Equal rights?
    Mr. Hasen. The Boerne line of cases, most of them do not 
deal with--
    Senator Sessions. Well, but in the Voting Rights Act. I 
mean, is the Supreme Court concerned about an excessive focus 
on race in American politics? Is that the fundamental--
    Mr. Hasen. I don't think that--that is the issue in the 
Shaw line of cases and Miller v. Johnson. I don't think that is 
the issue which raises the constitutional concern in this case. 
The issue instead is whether Congress can point to enough 
evidence of intentional discrimination, in this case on the 
basis of race in voting, in these jurisdictions that are 
targeted and whether the remedy, in this case the preclearance 
remedy, is congruent and proportional to the extent of those 
violations.
    Senator Sessions. I see. OK.
    Mr. Shaw. Senator, may I just--
    Senator Sessions. Yes, Mr. Shaw?
    Mr. Shaw. --add that Congress is actually at the height of 
its powers, the zenith of its powers in this area, unlike when 
it deals with disability or gender or some other 
classification. Here we have the confluence of both a suspect 
classification, that is, race, and also a fundamental right, 
the right to vote. And for those reasons, the Congress is going 
to be given more deference and leeway under the Boerne line of 
cases, and the Court, I believe, acted consistently with that 
principle when it decided the Lopez case, which is a post-
Boerne case, which rejected an attack on Section 5.
    Senator Sessions. All right. That was a quick 2 minutes. I 
have a note here that you were arriving in 2 minutes.
    We are delighted to have Senator Kennedy here and would 
recognize him as he gets settled, and I would just like to 
thank all of you for your thoughtful comments on this important 
subject.
    Senator Kennedy?
    Senator Kennedy. Well, thank you. Again, thanks to all of 
you for being here.
    I know that a number of areas have been gone through, but I 
think the country ought to be reminded once more about why this 
is needed. Maybe I will start with Professor Davidson, why we 
think that this is called for or not and in the form and the 
shape that it is. What is it about--you know, we know the 
different examples that have been illustrated, but you are one 
that has followed this closely over the years. And perhaps you 
would give us your judgment about the need for the legislation 
as it is.
    Mr. Davidson. Senator, as a number of panelists have said 
today, there is a wide range of information and research 
reports that focus on ongoing vote discrimination problems 
having to do with race that manifest themselves at the polling 
place, and in the hearings that the National Commission on the 
Voting Rights Act held around the country--those were ten 
hearings that were held in 2005, regional hearings--there was a 
wide range of testimony by minority spokespersons, by election 
officials, by people who were charged with getting out the vote 
or helping implement Section 203 to the effect that there is 
just a continuing range of voting problems that confront voters 
in many venues across the country.
    Senator Kennedy. And you think that the accumulation of 
those hearings and the records that were made in that underpins 
the basic concept of the need for the kind of extensive 
legislation that is being considered now for the Voting Rights 
Act?
    Mr. Davidson. Yes, sir, and there was also mention of data 
that were collected from the Justice Department with regard to 
various functions that the Justice Department is charged with 
here. There was the issue of the objections. There was also the 
point that I made very briefly in my opening remarks about the 
jurisdictions under Section 5, many of them after being queried 
by the Justice Department and asking for more information when 
they had made their submissions. They sent letters to the 
Justice Department saying that they were withdrawing the 
submitted changes. And in many of those cases, I think the 
inference that could be made is that they saw the handwriting 
on the wall that those would be changed that would be objected 
to if they did not withdraw them.
    Senator Kennedy. Mr. McDonald, some have suggested that 
certain types of voting changes are minor and should not need 
to be precleared under Section 5, such as changes in the 
location of polling places. But isn't the real test not the 
type of voting change but whether it discriminates? For 
instance, the ACLU report noted that in 1992, a jurisdiction in 
Georgia tried to move a precinct from a county courthouse to a 
racially segregated American Legion Hall. Isn't that the sort 
of change that should be precleared?
    Mr. McDonald. I think so, Senator. The Supreme Court was 
very clear when it construed Section 5 that it was not, you 
know, a short list or a laundry list of changes, but that it 
was to cover any change in voting. And as you mentioned, the 
change in polling place, I think that was St. Mary's, which is 
on the Georgia coast, but I also recall within the last couple 
of years one of the areas in metropolitan Atlanta relocated a 
polling place from a place that was in the black community to 
the police department. Fortunately, the Department of Justice 
objected to that, which they should have done. So it is not a 
laundry list. You have to look objectively at each change.
    Senator Kennedy. Let me ask you, Mr. Shaw--I am sure you 
have gone into it, and I will look at the record. You have 
talked a good deal about Georgia v. Ashcroft and the test and 
how that--did you get through--is there anything further you 
want to add to that discussion, or do you feel that the 
discussion earlier I imagine that was held here--I apologize. 
We are--as Senator Sessions knows, we are dealing with a major 
health bill over on the floor at the present time, and so I 
have been necessarily absent, but I apologize to all the 
witnesses. But is there anything further that you want to add 
to the discussion? I was not here. I will read the record 
carefully, but I want to make sure that has been fully 
ventilated from your point of view.
    Mr. Shaw. Well, Senator Kennedy, I would only add that the 
Georgia v. Ashcroft standard of influence, which replaces 
opportunity to elect, is a standard that does not--it lacks 
clear definition. We feel like we do not know what it means. We 
are not advocating that all of Georgia v. Ashcroft should be 
overturned, so, for example, we believe where it is possible, 
where the record demonstrates that it is possible to have 
coalition districts as reliable crossover voting on the part of 
white voters consistently so that African-Americans are not 
deprived of the opportunity to elect representatives of choice, 
then that should be sufficient.
    But what we are talking about is in the face of 
persistently polarized voting, we do not believe that influence 
district are enough. I do not think that anybody else settles 
simply for influence. They want the opportunity to elect 
representatives of their choice, and they do not want to be 
consistently defeated. That is what we are trying to address 
with respect to the Georgia v. Ashcroft fix.
    Senator Kennedy. OK. Thank you, Mr. Chairman. Thank you 
very much.
    Senator Sessions. Thank you, Senator Kennedy, and I would 
just say once again that I believe the Nation is committed to 
full and open and fair voting rights in this country, and I do 
not think that there will be any move to substantially 
undermine the spirit of the Voting Rights Act or its 
provisions. I do think it is quite appropriate for us, as was 
intended from the beginning, that we take some time to review 
that Act, see how it is working, see if we can make it better, 
see if there are other areas of the country that might ought to 
be covered by some of these provisions, see if there are some 
areas that are covered now that no longer need to be.
    I think just having stated previously how seriously 
African-Americans were denied the right to vote in the South 
and noting some of the changes that have occurred, I would like 
that chart to go up one more time that you have there that 
showed the complaints. As a citizen of Alabama, one of the 
States that clearly denied African-Americans the right to vote 
in 1965, I think the objections--the submissions receiving 
objections being now to--that is not 0.5 percent. That is five-
tenths of--five-hundredths of 1 percent that I believe that 
figure represents were objected to. So we are doing some things 
that are working. There are active lawyers, civil rights groups 
that certainly are willing to raise an objection when one 
deserves to be raised, but 99.995 percent of the preclearance 
submissions or requests for approval of voting rights changes 
are not being objected to. So that is good news, and I think 
that says something for us.
    If there is nothing further to come before us--Senator 
Kennedy, did you have--
    Senator Kennedy. If I could, staff just raised a point for 
Mr. McDonald. Would you agree that as a result, the number of 
Justice Department objections under Title 5 since 1982 likely 
underestimates the unconstitutional attempts to limit minority 
voting by covered jurisdictions?
    Mr. McDonald. Well, I think, Senator, that some of the 
changes that were precleared should not have been. The recent 
photo ID requirement in Georgia, for example, I think should 
not have been precleared. It was precleared. And the Federal 
district court judge immediately granted a preliminary 
injunction against enforcement of that provision and said that 
it was in the nature of a poll tax. You had to buy this photo 
ID card. You know, people say, What new things will they come 
up with? Well, they did not come up with anything very new. 
They came up with something that was in the nature of a poll 
tax.
    So the mere fact that there have not been a lot of 
objections does not mean that there should not have been more. 
But also, again, as Senator Sessions has noted, it shows the 
deterrent effect, which we still need.
    You know, Senator Kennedy, I have become increasingly 
alarmed reading the newspapers, and I see what happens in other 
countries, and I am not trying to say the United States is like 
those places, because it is not. But you see what happens in 
places where we do not have a rule of law, with fair laws 
fairly enforced. There is all kinds of corruption and things 
which I do not need to detail, but the surest way that we can 
make certain that our country remains one where people 
participate fairly and equally in the political process is to 
have fair laws that are effective and that are fully enforced, 
all of which simply underscores the need to extend the 
provisions of the Voting Rights Act.
    Senator Kennedy. Thank you, Mr. Chairman.
    Senator Sessions. Thank you. It has been an excellent 
hearing. Thank you very much.
    We are adjourned.
    [Whereupon, at 11:51 a.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]
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