[House Hearing, 109 Congress]
[From the U.S. Government Printing Office]




                               BEFORE THE


                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION


                                 H.R. 9


                              MAY 4, 2006


                           Serial No. 109-101


         Printed for the use of the Committee on the Judiciary

      Available via the World Wide Web: http://judiciary.house.gov


27-334                      WASHINGTON : 2006
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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida

             Philip G. Kiko, General Counsel-Chief of Staff
               Perry H. Apelbaum, Minority Chief Counsel

                    Subcommittee on the Constitution

                      STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona                JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee        JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama              ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana          MELVIN L. WATT, North Carolina
MARK GREEN, Wisconsin                CHRIS VAN HOLLEN, Maryland

                     Paul B. Taylor, Chief Counsel

                      E. Stewart Jeffries, Counsel

                          Hilary Funk, Counsel

                 Kimberly Betz, Full Committee Counsel

           David Lachmann, Minority Professional Staff Member

                            C O N T E N T S


                              MAY 4, 2006

                           OPENING STATEMENT

The Honorable Steve Chabot, a Representative in Congress from the 
  State of Ohio, and Chairman, Subcommittee on the Constitution..     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Member, Subcommittee on the 
  Constitution...................................................     2
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Member, Subcommittee on the 
  Constitution...................................................     4
The Honorable Melvin L. Watt, a Representative in Congress from 
  the State of North Carolina, and Member, Subcommittee on the 
  Constitution...................................................     5
The Honorable Chris Van Hollen, a Representative in Congress from 
  the State of Maryland, and Member, Subcommittee on the 
  Constitution...................................................     7
The Honorable Linda T. Sanchez, a Representative in Congress from 
  the State of California, and Member, Committee on the Judiciary     7


Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division, 
  Department of Justice
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Roger Clegg, President and General Counsel, Center for Equal 
  Oral Testimony.................................................    13
  Prepared Statement.............................................    16
Mr. Debo P. Adegbile, Associate Director of Litigation, NAACP 
  Legal Defense and Educational Fund, Inc.
  Oral Testimony.................................................    38
  Prepared Statement.............................................    40

               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Member, Subcommittee on the Constitution.......................    73
Prepared Statement of the Honorable Melvin L. Watt, a 
  Representative in Congress from the State of North Carolina, 
  and Member, Subcommittee on the Constitution...................    73
Prepared Statement of the Honorable John Lewis, a Representative 
  in Congress from the State of Georgia..........................    75
Prepared Statement of the Honorable William J. Jefferson, a 
  Representative in Congress from the State of Louisiana.........    77
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Alaska, Michigan, New Hampshire, and South 
  Dakota.........................................................    79
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in California..................................   107
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Arkansas....................................   132
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Oklahoma....................................   153
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Mississippi.................................   177
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in New York....................................   203
Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Tennessee...................................   235
Prepared Statement of the Honorable J.C. Watts, Jr...............   258
Prepared Statement of Jan Tyler, former Denver Election 
  Commissioner...................................................   264
Ana Henderson and Christopher Edley, Jr., ``Voting Rights Act 
  Reauthorization: Research-Based Recommendations to Improve 
  Voting Access,'' Chief Justice Earl Warren Institute on Race, 
  Ethnicity and Diversity........................................   266



                         THURSDAY, MAY 4, 2006

                  House of Representatives,
                  Subcommittee on the Constitution,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 9:07 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot (Chairman of the Subcommittee) presiding.
    Mr. Chabot. The Committee will come to order. This is the 
Subcommittee on the Constitution.
    Good morning. We want to thank everyone for being here 
today. This is the Subcommittee on the Constitution, as I 
mentioned. This morning marks an important step for this 
Committee as it continues its examination of the Voting Rights 
Act of 1965 and the temporary provisions that are set to expire 
on August 6, 2007.
    Last fall, over the course of nine hearings, this 
Subcommittee examined in great detail each of the temporary 
provisions of the Voting Rights Act currently set to expire. 
With regard to sections 5 and 203, we held multiple hearings to 
ensure that all of the issues raised were addressed. This past 
March, we held an additional hearing to incorporate into the 
Committee's record a series of individual State and national 
reports documenting the continuing problem of racial 
discrimination in voting in the last 25 years and the necessity 
of the temporary provisions to protect minority voters in this 
    Today we have before us H.R. 9, the ``Voting Rights Act 
Reauthorization and Amendments Act of 2006,'' the product of 
this Committee's work over the last 7 months.
    I'd like to take a moment to thank my colleagues and those 
in the audience, who have been with us from the start, for 
their dedication and commitment to get us where we are today. 
In keeping with the bipartisan spirit of our hearings and 
previous reauthorizations, I'm proud to say that H.R. 9 is, 
again, the result of a bipartisan effort.
    H.R. 9 extends the temporary provisions of the Voting 
Rights Act for an additional 25 years. In addition, H.R. 9 
makes changes to certain provisions, including restoring the 
original purpose of section 5. In reauthorizing the temporary 
provisions, the Committee heard from several witnesses who 
testified about voter discrimination that currently exists in 
covered jurisdictions.
    It is on this evidence that the Committee considers it 
necessary to continue the temporary provisions for another 25 
years. I believe it's important to note that in reauthorizing 
the temporary provisions the Supreme Court, in South Carolina 
v. Katzenbach and later in City of Rome v. United States, 
upheld Congress's broad authority under section 2 of the 15th 
amendment to use the temporary provisions to address the 
problem of racial discrimination in voting in certain 
jurisdictions. With H.R. 9, Congress again invokes its 
authority under section 2 in order to appropriately address the 
continued problem of discrimination in voting that is revealed 
in the record before it.
    In addition to reauthorizing, the Committee finds it 
necessary to make certain changes to ensure that the provisions 
of the Voting Rights Act remain effective. For example, 
testimony received by the Committee indicates that Federal 
examiners have not been used in the last 20 years, but Federal 
observers continue to provide vital oversight. H.R. 9 strikes 
the Federal examiner provisions while retaining the authority 
of the Attorney General to assign Federal observers to covered 
jurisdictions over the next 25 years.
    In addition, H.R. 9 provides for the recovery of expert 
costs as part of attorney fees. This change brings the Voting 
Rights Act in line with current civil rights laws, which 
already allow for the recovery of such costs.
    H.R. 9 also makes technical changes to section 203, which 
will be discussed later this afternoon in a separate hearing. 
That hearing is at 2 o'clock this afternoon.
    Most importantly, H.R. 9 seeks to restore the original 
purpose to section 5. Beginning in 2000, the Supreme Court, in 
Reno v. Bossier Parish, and later, in 2003, in the case of 
Georgia v. Ashcroft, issued decisions that significantly 
altered section 5. H.R. 9 clarifies Congress's original intent 
with regard to section 5.
    This morning we will hear from our witnesses and discuss 
those provisions of the bill that address sections 4 through 8, 
the trigger, bailout, preclearance, and observer provisions, 
and section 14, which addresses the issue of attorney fees, of 
the Voting Rights Act. This afternoon we will devote our 
discussion to the provisions of the bill that reauthorizes and 
amends section 203.
    I'd like to welcome and thank our witnesses here this 
morning, as well as our distinguished guests who are sitting 
with us on the dais this morning. None of the guests are here 
yet, so we won't recognize them at this time.
    The gentleman from New York, Mr. Nadler, the Ranking 
Member, is not here. The very distinguished gentleman from 
Virginia, Mr. Scott, is here, and would he like to make an 
opening statement?
    Mr. Scott. Thank you, Mr. Chairman. Representative Nadler 
wanted to be here but was unavoidably detained and asked me to 
sit in on his behalf. He's a strong supporter of the Voting 
Rights Act and regretted that he couldn't be here today.
    But it's been 40 years since passage of the Voting Rights 
Act, and that act has guarantees millions of Americans equal 
opportunity to participate in the political process. The genius 
of the act was not simply that it outlawed discrimination at 
the ballot box; it also gave voters new tools to ensure 
fundamental fairness in the voting process.
    In past years, Congress has recognized the tenacious grip 
of discrimination in voting and we've continued to reauthorize 
the sections that will be discussed here today. These expiring 
provisions are essential to ensuring fairness in our political 
process and equal opportunity for minorities in America.
    From the initial passage of the Voting Rights Act, Congress 
has relied on an extensive record of discrimination in voting 
to justify the continuing needs for the remedies imposed by the 
expiring provisions. In the original enactment of the Voting 
Rights Act and subsequent reauthorizations, Congress made sure 
that the Voting Rights Act remedies were proportionate to the 
problems Congress sought to cure.
    In October of last year, we began the task of building a 
record to ascertain whether or not there was an ongoing need 
for these provisions. Through hearings in the Committee and 
field hearings conducted by many of the groups represented here 
on the panel, we have been able to build a clear and convincing 
record that there is a continuing need for the expiring 
provisions in the bill.
    The temptation to manipulate the law in ways that will 
disadvantage minority voters is great, as great and 
irresistible today as it was in 1982. There are many specific 
issues that need to be addressed, including the clear need for 
section 5 in light of the inadequate remedies provided under 
section 2. Section 5 must be reauthorized to continue blocking 
the implementation of discriminatory voting changes, whether by 
deterring jurisdictions from enacting the discriminatory law in 
the first place or by routinely blocking those changes in the 
    In the absence of section 5, a new State law can only be 
challenged in the time-consuming, vote-dilution litigation 
under section 2, where minority plaintiffs bear the burden of 
proof and, from a practical point of view and more 
significantly, they also suffer the burden of expenses in 
bringing the case.
    The Supreme Court has ruled that winning parties in civil 
rights cases cannot recover expert witness fees as part of 
recoverable costs that they are entitled to receive, and this 
creates a chilling effect on voting rights litigation because 
it prevents lawyers and nonprofit organizations from recovering 
tens of thousands of dollars, sometimes hundreds of thousands 
of dollars, in expert witness fees.
    During the reauthorization process, we were able to 
consider the impact of Georgia v. Ashcroft on section 5. 
According to the Court, the ability to elect is ``important'' 
and ``integral,'' but a court must now consider the ability to 
``influence and elect sympathetic representatives.'' Although 
this consideration under the facts of Georgia v. Ashcroft may 
not have caused a problem because a majority found that the 
number of minority-majority districts was not reduced--dicta in 
the case clearly suggests that there may not be a violation of 
districts in which minority voters can elect candidates of 
choice--or dismantled, creating some ill-defined list of 
influenced districts.
    The reauthorization and legislative history of section 5 
must make it clear that this portion of the Voting Rights Act 
has been enacted to ensure that minority voters, where 
possible, ought to be able to elect candidates of choice. 
Influence in coalition districts will of course be a 
consideration in evaluation of the total plan, but the primary 
evaluation will be districts in which minority voters are able 
to elect candidates of choice.
    Our record reflects a continuing need for these expiring 
provisions. At a time when America has staked so much of its 
international reputation on the need to spread democracy around 
the world, we must ensure its vitality here at home. H.R. 9 
does just that.
    Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much.
    Mr. Franks, did you wish to make an opening statement?
    Mr. Franks. No.
    Mr. Chabot. Do any other Members wish to make an opening 
statement? The gentleman from Michigan, the distinguished 
Ranking Member of the full Committee, Mr. Conyers, is 
    Mr. Conyers. Thank you, Mr. Chairman. I'll put my statement 
in the record, but I am impressed that this Committee has 
probably done the kind of a job that I think will stand the 
scrutiny of history and that will also be commended for the 
fair way that we examine the problems that are connected with 
the reauthorization of this Voting Rights Act.
    We've broken our examination down before the introduction 
of H.R. 9 into a couple fundamental questions: Is there an 
adequate record of discrimination to justify reauthorizing the 
expiring provisions; and, Are the expiring provisions, as 
interpreted by the courts, still adequate to protect the rights 
of minority voters? And these are the questions that have 
guided us.
    I think there is an ample record through at least nine 
hearings. And now as we go through the actual bill that has 
been introduced, on a bipartisan basis, I think that we should 
applaud you, Mr. Chairman, in the way that you have conducted a 
very thorough set of hearings that I think will stand the test 
of time.
    Mr. Chabot. Thank you very much.
    Mr. Conyers. The fact of the matter is that the questions 
that we are examining now will further help us. I welcome the 
witnesses back again who have participated and have helped us. 
We need to make sure that it is understood that circumstantial 
evidence in dealing with intentional discrimination is a very 
important part of the way we interpret the law.
    We also need to realize that the changes that have been 
made to deal with court interpretation previously has been done 
before at other reauthorization hearings. And so this is 
nothing particularly new.
    But I think that we might be well-advised that we've gone 
neither too far or left anything undone. I don't think that 
this was a pro-Voting Rights extension exercise and that 
everybody was cut out, because that's not the case. We've had 
balanced discussion, we've welcomed criticism from all 
quarters, we've examined every theory, plausible objection, and 
we continue to do it in the hearings that remain on the bill 
    So to me, I think there's been an excellent job done. I 
feel confident that we will be in the best circumstances to 
face a Court which we are not sure of where they will be going. 
There are many on the Court whose exact position on some of 
these questions is not clear or is unknown to us as we put 
together, from everything that we've been able to see, hear, 
examine, interpret, and also take from circumstantial evidence, 
the very fact that there's a need for the Voting Rights Act to 
be improved and continued.
    It's a huge job at a very difficult period of legislative 
time. I want to just let everyone know, each Member of the 
Committee. I single out Mel Watt, who has taken on an 
extraordinary role in this regard. The Chairman of the full 
Committee has worked with every recommendation, every 
improvement that we've sought in the process, Jim 
Sensenbrenner. And so I come here fully satisfied that these 
discussions, these witnesses, the evidence that has been 
produced for this very voluminous record will be able to 
withstand the exacting scrutiny of the courts that will be 
called upon to evaluate it in the future.
    I thank you very much.
    Mr. Chabot. Thank you.
    The gentleman from Virginia, Mr. Scott, is recognized out 
of order.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Chairman, I just 
wanted to follow up on the comments just made by the gentleman 
from Michigan.
    As you indicated in your comments, this has been a work, a 
bipartisan work that you and Ranking Member Nadler worked very 
well together. The Chairman of the Black Caucus, Mr. Watt, did 
a yeoman's job in working with all of the different groups. Mr. 
Sensenbrenner, the Chairman of the full Committee, and Mr. 
Conyers. And working with the Senate. This has been a 
tremendous job. We've developed a record that I think is a 
model for bipartisan cooperation that I think, hopefully, we 
would see before.
    But I would want to signal particularly focus on the job 
that Chairman of the Black Caucus Mel Watt from North Carolina 
has done in working with this. It has not been an easy job. 
He's been criticized by everybody. But I think the final 
product is a testimony of his good work and resolve and 
willingness to take arrows from both sides and put together a 
bill that I think everybody can be proud of.
    Mr. Chabot. Just let the record note that I haven't 
criticized him. [Laughter.]
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I could certainly take more than my 5 minutes that I have 
here to just thank people. I think I will refrain from doing 
that on this occasion, except to re-extend the thanks that I 
made to you and Ranking Member Nadler for sitting through all 
of these hearings and developing the record, which I think will 
be so important as we move forward; and to extend thanks again 
to Ranking Member Conyers for having the confidence in me to 
allow me to proceed as his representative in the negotiations 
about the bill.
    I could certainly spend more than my 5 minutes summarizing 
the bill that we have arrived at. I think it is thorough and 
good, but Mr. Scott has done a magnificent job of doing that 
summary. Or I could spend more than my 5 minutes reading this 
eloquent statement that my staff has prepared for me. I think I 
will submit that for the record also.
    What I thought might be helpful to us, though, to set the 
stage, is to let you know that I have been preparing to give a 
commencement speech at Fisk University, which is the school 
from which, after John Lewis, our colleague and moral leader in 
this fight, went to jail, and it took him a long time to get 
through to graduation. But he did graduate from Fisk 
University, and I'm doing the commencement address there. And 
it's given me the occasion to go back and reread some excerpts 
from the book that John Lewis has written called ``Walking With 
the Wind.''
    And I can't think of really a better backdrop to this 
discussion or to our pending markup as we go forward than to 
just read this atmosphere that people were operating in leading 
up to the passage of the Voting Rights Act. This is from page 
326 of John Lewis's book, ``Walking With the Wind'':
    ``When we reached the crest of the bridge, I stopped dead 
still. So did Josea. There, facing us at the bottom of the 
other side, stood a sea of blue-helmeted, blue-uniformed 
Alabama State Troopers, line after line of them, dozens of 
battle-ready lawmen stretching from one side of U.S. Highway 80 
to the other. Behind them were several dozen more armed men, 
Sheriff Clark's posse--some on horseback, all wearing khaki 
clothing, many carrying clubs the size of baseball bats.
    ``On one side of the road I could see a crowd of about a 
hundred Whites laughing and hollering, waving Confederate 
flags. Beyond them, at a safe distance, stood a small, silent 
group of Black people. I could see a crowd of newsmen and 
reporters gathered in the parking lot of a Pontiac dealership. 
And I could see a line of Park Police and State Trooper 
vehicles. I didn't know it at the time, but Clark and Lingo 
were in one of those cars.
    ``It was a drop of 100 feet from the top of the bridge to 
the river below. Josea glanced down at the muddy water and 
said, `Can you swim?' `No,' I answered. `Well,' he said with a 
tiny half-smile, `neither can I.' `But,' he added, lifting his 
head and looking straight ahead,` we might have to today.'
    ``Then we moved forward. The only sounds were our footsteps 
on the bridge and the snorting of a horse ahead of us.''
    Mr. Chairman, this is how we got here, this historical 
backdrop against which we were operating, in which President 
Johnson and those brave people, Members of Congress, enacted 
the original voting rights law. We've come a long way since 
then, but our record demonstrates amply, more than amply, that 
we still have a long way to go. And we have to keep on this 
mission at this basic democratic level--``democratic'' with a 
small ``d''--ensuring that every single citizen has the right 
to participate and have their voices heard in the political 
process. That's what this has been about.
    I want to thank everybody who has been involved in this. I 
hope we can move forward to finish this job with this bill.
    Thank you so much.
    Mr. Chabot. Thank you very much for that particularly 
gripping opening statement. We appreciate you sharing 
Congressman Lewis's book with us.
    The gentleman from Maryland, Mr. Van Hollen, is recognized, 
if he'd like to make an opening statement.
    Mr. Van Hollen. Well, thank you, Mr. Chairman. I will be 
brief. I want to thank you and the Chairman of the full 
Committee, Mr. Sensenbrenner, and Mr. Watt, Mr. Conyers, Mr. 
Scott, and others who have worked for so long in making sure 
that this right that people lost their lives over and people 
fought so long to secure will be extended in the future if this 
Congress moves forward as I hope it will. I'm proud to be a 
cosponsor of this piece of legislation.
    I just want to thank everybody for working together, and 
hope we can see it through the process to the President's desk. 
Thank you.
    Mr. Chabot. Thank you.
    And Ms. Sanchez, who's not a Member of this Committee but 
is a Member of the full Committee, would you like to make an 
opening statement? The gentlelady is recognized.
    Ms. Sanchez. Thank you, Chairman Chabot. And I also want to 
extend my thanks to Ranking Member Nadler for allowing me to 
join the Constitution Subcommittee for another important 
hearing on reauthorization of the Voting Rights Act.
    Today's hearing is particularly special for me and in fact 
for everybody who has worked on the reauthorization effort. We 
have a bipartisan bill that honors the sacrifices and 
intentions of our great champions of the civil rights movement. 
And more importantly, this bill protects the fundamental right 
of all citizens in our country to vote.
    I was particularly proud to stand on the Capitol steps on 
Tuesday for the press conference announcing the introduction of 
the bill. There were a lot of Members of Congress there who 
were thanked for their efforts in the reauthorization. But I 
want to personally thank Congressmen Chabot and Nadler for 
being the first to start the process of building the 
congressional record and now conducting legislative hearings on 
this landmark bill.
    H.R. 9 is a shining example of the kind of quality 
bipartisan legislation that respects American ideals and puts 
partisanship aside. As a member of the Congressional Hispanic 
Caucus and a former civil rights attorney, this bill has every 
provision that I hoped it would contain when the 
reauthorization process began last fall.
    H.R. 9 extends the preclearance requirements in section 5 
for another 25 years and strengthens section 5 by repairing the 
damage done by the Supreme Court in Reno v. Bossier Parish and 
Georgia v. Ashcroft, those two cases. These are, I feel, very 
productive improvements in the VRA that will protect citizens' 
voting rights nationwide.
    I'm also extremely pleased that the language assistance 
provisions in section 203 are reauthorized in this bill. My 
congressional district lies in Los Angeles County, which has 
been covered by section 203 since the year 2000. And I have 
seen first-hand how Hispanic, Chinese, Filipino, Japanese, 
Korean, and Vietnamese constituents have benefitted from those 
language assistance provisions when they go to the polls. 
That's why I believe that reauthorizing section 203 is an 
essential provision of H.R. 9. Voting is a fundamental right 
that should be protected for all citizens, and that includes 
language minorities.
    Voting is the one way that every American citizen can 
participate, influence, and collectively shape our democratic 
Government. The ability to fully participate in an informed way 
should not be denied to those citizens--and I emphasize 
``citizens''--who are more fluent in other languages other than 
    Today I think the icons of the civil rights movement after 
whom this bill is named--Fannie Lou Hamer, Ms. Rosa Parks, and 
Coretta Scott King--would be proud to have a bill that protects 
all citizens' right to vote regardless of their race, 
ethnicity, education level, or language proficiency. And I 
can't think of a better bill to have worked on.
    We have Members backing this bill that come from all 
political stripes. They come from diverse ethnic and racial 
backgrounds and from Wisconsin to Florida, New York to 
California. This bill and those in support of it are a 
reflection of the best that America can do.
    I sincerely hope that as this bill makes its way through 
the legislative process in both the House and the Senate, 
partisan concerns are put aside. Every Member of this body 
should join in support for this bill as it is currently drafted 
and resist urges to weaken this landmark bill or strip any of 
its provisions for short-term political points.
    And again, I just want to thank the Ranking Member and the 
Chairman of both the Subcommittee and full Committee for their 
leadership on this issue. I yield back.
    Mr. Chabot. Thank you very much.
    We'll now get into the introduction of the panel here.
    Let me begin by saying that, without objection, all Members 
will have 5 legislative days to submit additional materials for 
the hearing record.
    Our first witness will be Mr. J. Gerald Hebert. Mr. Hebert 
is a sole practitioner in Alexandria, Virginia, focusing on 
election law and redistricting. Mr. Hebert has had an extensive 
career in voting litigation, representing a number of States in 
redistricting and election issues, including the States of 
Texas, California, New York, South Carolina, and Virginia. 
Prior to his practitioner work, Mr. Hebert worked at the 
Department of Justice from 1973 to 1994, where he served as 
acting chief, deputy chief, and special litigation counsel in 
the Voting Section of the Civil Rights Division. Mr. Hebert 
served as lead attorney in numerous voting rights and 
redistricting suits and as chief trial counsel in over 100 
voting rights lawsuits, many of which were ultimately decided 
by the United States Supreme Court. Mr. Hebert testified before 
this Subcommittee during last year's oversight hearings on the 
Voting Rights Act. We welcome you back here this morning, Mr. 
    Our second witness will be Mr. Roger Clegg. Mr. Clegg also 
testified before us last fall. He is the President and CEO for 
the Center for Equal Opportunity, where he specializes in civil 
rights, immigration, and bilingual education issues. Mr. Clegg 
is also a contributing editor at National Review Online and 
writes frequently for USA Today, The Weekly Standard, the Legal 
Times, and other periodicals and law journals. Prior to his 
work at CEO, Mr. Clegg held a number of positions at the U.S. 
Department of Justice between years 1982 and 1993, including 
that of assistant to the Solicitor General. Welcome back here 
this morning, Mr. Clegg.
    And our third and final witness this morning will be Debo 
Adegbile. Mr. Adegbile is the Associate Director of Litigation 
at the NAACP Legal Defense and Educational Fund Incorporated, 
where he works with the director of litigation to oversee the 
organization's legal program while remaining actively engaged 
in voting rights litigation and advocacy. Previously, Mr. 
Adegbile was an assistant counsel at LDF, where he litigated 
voter rights cases on behalf of African-Americans and other 
underserved communities. Between 1994 and 2001, he was an 
associate at the law firm of Paul, Weiss, Rifkind, Wharton & 
Garrison, where he litigated several commercial and civil 
rights cases. More recently, Mr. Adegbile served as a 
coordinator of the National Nonpartisan Election Protection 
Program during the 2004 elections. We welcome you here this 
morning, Mr. Adegbile.
    For those who haven't testified, and that's only, I think, 
one, before this Committee, so the other two are quite familiar 
with this, we have what's called a 5-minute rule. There's a 
clock right there in front of you, a light system, actually. 
The green light will be on for 4 minutes, the yellow light will 
come on letting you know you have 1 minute to kind of wrap up, 
and the red light will come on and that means your time is up. 
We won't gavel you down immediately, but we'd like you to try 
to end as close to the red light as possible.
    And it's the practice of this Committee to swear in all 
witnesses appearing before it. So if you wouldn't mind standing 
and raising your right hands.
    [Witnesses sworn.]
    Mr. Chabot. All witnesses have indicated in the 
    We'll now begin with our first witness. Mr. Hebert, you're 
recognized for 5 minutes.


    Mr. Hebert. Thank you, Mr. Chairman. And thank you, Members 
of the Committee, for the opportunity to speak to you today 
about what is considered to be the strongest and most effective 
piece of civil rights legislation ever enacted in the history 
of our country, the Voting Rights Act, which many consider to 
be the crown jewel of civil rights.
    I previously appeared before the Subcommittee, as you said, 
last October, Mr. Chairman, and at that time focused my 
comments on the bailout provisions. I would simply add that I'm 
pleased to see that the bill, H.R. 9, makes no substantive 
changes in the bailout provisions. I think they're a good fit. 
I think they're easy to prove for jurisdictions that are not 
engaged in voting discrimination. I'm pleased to see that was 
left intact.
    Before getting to some comments about the bill itself, I 
want to take just a few minutes to make some preliminary 
comments about the coverage formula that's been a part of the 
Voting Rights Act since its inception. The coverage formula is 
important, of course, because it dictates which jurisdictions 
are going to be subject to the special provisions of the act.
    H.R. 9 makes no changes in the coverage formula. To be 
sure, the constitutionality of all the act's special remedial 
provisions hinges on the coverage formula, so it's clearly an 
important issue. Because the City of Boerne case from the 
Supreme Court is now 10 years old and the composition of the 
Court has changed since that time, no one can safely predict, 
of course, how the Court will consider an attack on the 
constitutionality of the act, which is surely to come based on 
the coverage formula that some have claimed is outdated. I 
think it will help those of us who intend to defend the act's 
constitutionality in the future against attacks from groups, 
including Mr. Clegg's, to be able to point to the reasons 
Congress decided that the continuing problems of voting 
discrimination warrants the extension of the acts special 
    The record assembled by this Committee--and I'm pained to 
admit that I've read nearly all of it I believe is an 
impressive one. But what it really shows and what should be 
troubling to all of us is that the engine of voting 
discrimination runs on. And this Committee has done an 
excellent job at developing a record to show that the special 
provisions still remain a good fit to the discrimination in 
voting that is taking place.
    And I think that's consistent with the Supreme Court's 
admonition in the City of Boerne case that there must be 
congruence and proportionality--and that's the quote from the 
Supreme Court--between the injury that you're trying to prevent 
or remedy and the means that you're adopting to that end. The 
fact that--the preclearance provisions in particular have 
blocked acts of intentional discrimination.
    Now, I had occasion to read Mr. Clegg's testimony before 
today and I note that one thing that he has said is that a lot 
of the discrimination is anecdotal and not necessarily proof of 
intentional discrimination. I would submit to you that he is 
either unaware of a lot of what is in the record or that he 
doesn't understand what constitutes intentional discrimination.
    I recall, for example, the numerous instances in the 
lengthy reports submitted by the Lawyers Committee for Civil 
Rights detailing intentional discrimination against minority 
voters. One of those examples, actually out of Alabama, 
involved the City of Foley. I represented a group of Black 
voters who wanted to become annexed into the city. Their 
children were drinking--the drinking water in their homes was 
contaminated because the septic tanks that they had outside 
their homes were leaking into the drinking water. They wanted 
to be annexed so they could be part of the city's services and 
get clean water and sewer services and streetlights and fire 
hydrants and all the rest. The city refused to annex them. And 
the Justice Department actually blocked some annexations on the 
grounds that they were allowing White people into the City of 
Foley to be annexed but were not extending the equal rights to 
    I represented that group of people after I left the Justice 
Department, and we sued the City of Foley. And make no mistake, 
the decision to try to keep those people out was intentionally 
based on racial discrimination. They didn't want that group of 
people voting in their elections. It had more to do with their 
opportunity to participate in the political process and bring 
about things that really affected their daily lives more than 
it did anything else.
    And so I think that, you know, that example is in the 
record. But the Voting Rights Act ended up bringing about a 
solution to that problem. I'm happy to say that those people 
are a part of that town today and are getting the city's 
services that they deserve.
    I know that my time is running out, so lastly, let me just 
make a couple of observations about some of the other 
    The one provision that I am opposed to in the bill is to 
adding a provision that precludes judicial review of the 
Attorney General's decision to certify Federal observers in a 
covered jurisdiction. I think that there ought to be occasions 
when we not only could review the decision about whether the 
Attorney General has placed observers in a certain area, but 
also to review the Attorney General's decisions to preclear 
certain things. That's a case, Morris v. Gressette, which 
presently precludes judicial review of the Attorney General's 
decision to preclear, and I think that's a provision that many 
of us in the voting rights bar would also like to see included 
in the bill. I understand that one horse can only carry so much 
baggage, but it is something that has been a growing concern to 
us, especially as we review the decisions by this 
Administration under the Voting Rights Act.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Hebert follows:]

                 Prepared Statement of J. Gerald Hebert

    Mr. Chairman, Mr. Vice Chairman, and distinguished Members of this 
Committee. Thank you for inviting me to testify before you today on a 
piece of legislation that has proven to be the strongest and most 
effective piece of civil rights legislation in our Nation's history: 
the Voting Rights Act.
    I previously appeared before the Subcommittee last October and at 
that time focused my comments on the bailout provisions of the Act. 
Today, I will focus my comments this morning on a few key provisions of 
the proposed bill that has been circulated for discussion and has been 
shared with me by the Subcommittee staff. I also will briefly touch on 
a few other issues as they relate to reauthorization of the Act.
    Before getting to the bill itself, however, I want to take a few 
moments to talk about the coverage formula that has been a part of the 
Voting Rights Act since its inception. The coverage formula is 
important because it dictates which jurisdictions are subject to the 
Act's special provisions.
    As I read the proposed bill, the coverage formula determinations 
remain as they were. Even though the Supreme Court has upheld the Act 
against constitutional challenge on two occasions (1966 and 1980), much 
time has passed not only since the original Act was passed but also 
since the constitutionality of the Act has been revisited. On several 
occasions since 1980, the Court has decided voting rights cases 
assuming its constitutionality.
    In 1997, the Supreme Court struck down as unconstitutional the 
Religious Freedom Restoration Act, finding that Congress had exceeded 
its enforcement power under the Fourteenth Amendment. City of Boerne v. 
Flores, 521 U.S. 507 (1997). The Court's opinion in Boerne cited and 
quoted with approval passages from its earlier 1966 decision upholding 
the constitutionality of the Voting Rights Act in South Carolina v. 
Katzenbach, 383 U.S. 301, 326 (1966). The Court in Boerne actually 
seemed to reiterate its earlier reasons for upholding the Voting Rights 
Act in the Katzenbach case and distinguishing the Voting Rights Act 
from the unconstitutional Religious Freedom Restoration Act. Thus, many 
have assumed since that time that the Court's Boerne decision points 
toward why the Court continues to view the Voting Rights Act as 
constitutional today. I think the record that this Committee has 
assembled shows quite convincingly that the engine of racial 
discrimination runs on and the need for the special provisions 
    The coverage formula issue is straightforward. According to the 
Supreme Court, Congress's enforcement power under the Civil War 
Amendments extends only to enacting legislation that enforces those 
Amendments. City of Boerne v. Flores, supra. The Court has described 
this power as ``remedial''. South Carolina v. Katzenbach, supra, at 
326. The Court has cautioned that Congress lacks the power to decree 
the substance of those Amendments. In other words, Congress has the 
power to enforce, not the power to determine what constitutes a 
constitutional violation. City of Boerne, supra, at 519.
    The proposed legislation that I have reviewed makes no changes in 
the coverage formula. To be sure, the constitutionality of all of the 
Act's special remedial provisions hinges on the coverage formula, so it 
is clearly an important issue. And because City of Boerne is now nearly 
ten years old and the composition of the Court has changed, no one can 
safely predict how the Court will view the constitutionality of an Act 
based on a coverage formula that many consider outdated.
    Congress has developed a detailed factual record that supports the 
reauthorization of the special provisions. This Committee has been 
doing a terrific job of gathering this information over the past year 
and I commend this Committee for doing so. I think it will help those 
of us who intend to defend the Act's constitutionality in the future 
against attacks from Mr. Clegg and his group to be able to point to the 
reasons Congress decided that the continuing problems of discriminatory 
voting practices warrants an extension of the Act. Congress's approach 
to studying the current conditions in the covered jurisdictions to 
insure that the Act still continues to be a good fit to voter 
discrimination is consistent with the admonition in City of Boerne that 
``[t]here must be congruence and proportionality between the injury to 
be prevented or remedied and the means adopted to that end.'' Boerne, 
supra, at 520.
    Mr. Clegg (p.7) complains that the record developed by congress is 
anecdotal and doesn't involve much intentional discrimination. He is 
apparently unaware of a lot of the information that has been developed 
or he doesn't understand what constitutes intentional discrimination.
    I recall for example that there were numerous instances cited in 
the lengthy report of the Lawyers' Committee for Civil Rights Under Law 
(which is already a part of the official record before this committee) 
detailing discrimination against minority voters. For example, former 
Justice Department official Robert Kengle reported that in Georgia, the 
Justice Department interposed several method-of-election objections 
where local governments ``attempted to add at-large seats to single-
member district plans under circumstances that strongly suggested a 
discriminatory purpose.'' Mr. Kengle's analysis noted by way of example 
the July 1992 objection to the Effingham County Commission's attempt to 
change the county's then-existing five-member single-member district 
plan (which had been adopted in response to a vote dilution lawsuit) to 
a mixed plan with five single-member districts and an at-large chair to 
be elected with a majority vote requirement. The Justice Department 
objected to the change stating:

        Under the proposed election system, the chairperson would be 
        elected as a designated position by countywide election with a 
        majority vote requirement. In the context of the racial bloc 
        voting which pertains in Effingham County, the opportunity that 
        currently exists for black voters to elect the commissioner who 
        will serve as chairperson would be negated. Moreover, it 
        appears that these results were anticipated by those 
        responsible for enactment of the proposed legislation. The 
        proposed change to an at-large chairperson followed the 
        elimination of the position of vice-chairperson, which had been 
        held by a black commissioner since 1987. Although we have been 
        advised that the proposed system was adopted in order to avoid 
        the possibility of tie votes in the selection of the 
        chairperson and for other proposals before the board, this 
        rationale appears tenuous since the change to an even number of 
        commissioners would invite tie votes to a greater extent than 
        the existing system.\1\
    \1\ John R. Dunne, Objection Letter, July 20, 1992.

    Mr. Chairman and members of the Committee, this was not ancient 
history. It was a little more than a decade ago, and well after the 
Supreme Court and Congress had observed the potential for diluting 
minority voting strength in racially polarized elections that such 
changes could produce. The various devices proposed in combination in 
Effingham County (numbered posts, majority vote requirement and at-
large elections) have each been cited by the Supreme Court and the 
Congress as devices that enhance the opportunity for racial 
discrimination to occur in the electoral process. So when Mr. Clegg 
says there is little evidence of intentional discrimination and that 
the discrimination detailed in the congressional record is largely 
anecdotal, I respectfully disagree.
    It is also important Mr. Chairman, that a number of objections 
interposed under Section 5 have been interposed to changes that had 
been illegally implemented (i.e., without Section 5 preclearance) for 
years, or even decades. Some changes finally were submitted only as the 
result of litigation; in other cases, it appears that the unprecleared 
changes were detected by DOJ during the Section 5 review of other 
changes (such as annexations) that were later submitted by the 
jurisdiction. The utter failure to make a Section 5 submission of an 
objectionable change, when such changes have been known for years to 
increase the potential for racial discrimination in the political 
process, strongly suggests that deliberate racially discriminatory 
conduct is at work.
    It is critical to recognize that in this day and age, evidence of 
intentional discrimination must often be gleaned from circumstantial 
evidence. That is because state and local officials largely avoid 
making overt public statements of racial animus. The point here is that 
Congress is entitled to look at the record it has developed and draw 
reasonable inferences that intentional discrimination continues to 
occur, and I think the record developed to date proves that it does. 
Drawing inferences of intentional discrimination from objective facts 
is hardly new. Indeed, the Supreme Court itself draws such inferences 
of intentional discrimination, largely utilizing the factors laid out 
in the Arlington Heights case to decide whether intentional 
discrimination may be inferred from certain actions of government 
    Lastly, a couple of observations about some other provisions of the 
bill. I believe Congress was correct in not changing the bailout 
provisions. I am opposed to the adding of a provision that precludes 
any judicial review of the Attorney General's decision to certify 
federal observers in a covered jurisdiction. I believe that in some 
instances in 2004, decisions were made at the Department of Justice to 
send federal officials and observers to jurisdictions based more on 
political considerations than racial considerations. For this same 
reason, I would also like to go on record as supporting legislation 
that overrules the Supreme Court's decision in Morris v. Gressette and 
would permit judicial review in extreme cases of decisions made by the 
Attorney General to grant preclearance to a voting change. I offer 
these observations because I have seen the Department of Justice's 
enforcement of the Voting Rights Act subject to increased manipulation 
by political appointees for partisan purposes. The recent revelations 
about the Texas re-redistricting and how the preclearance process got 
corrupted within the Department of Justice--and there are other 
examples--illustrate the need for this judicial review. I would, 
however, reserve it for extreme cases.

    Mr. Chabot. Thank you very much.
    Mr. Clegg, you are recognized for 5 minutes.

                     FOR EQUAL OPPORTUNITY

    Mr. Clegg. Thank you, Mr. Chairman, for the opportunity to 
testify this morning before the Subcommittee. My name is Roger 
Clegg and I am president and general counsel of the Center for 
Equal Opportunity. I should also note, as you did, that I was a 
deputy in the Department of Justice's Civil Rights Division for 
4 years, from 1987 to 1991.
    The draft bill about which I've been asked to testify this 
morning is bad policy, basically from beginning to end, and 
unconstitutional in many different ways, to boot.
    Let me begin, though, by quoting something to you:
    ``And today, in the American South, in--in 1965, there was 
less than a hundred elected Black officials. Today, there are 
several thousand. The Voting Rights Act of 1965 has literally 
transformed not just southern politics, but American politics.
    ``Well, I think during the past 25 years, you have seen a 
maturity on the part of the electorate and on the part of many 
candidates. . . . So there has been a transformation. It's a 
different state, it's a different political climate, it's a 
different political environment. It's a different world that we 
live in, really. . . .
    ``The state is not the same state it was. It's not the same 
state that it was in 1965 or in 1975, or even in 1980 or 1990. 
We have changed. We've come a great distance. . . . [I]t's not 
just in Georgia, but in the American South, I think people are 
preparing to lay down the burden of race.''
    That's not me speaking, that's John Lewis, in a sworn 
deposition in the Georgia v. Ashcroft litigation.
    Justice O'Connor found that testimony credible. Let me read 
how she concluded her opinion for the Supreme Court in that 
    ``The purpose of the Voting Rights Act is to prevent 
discrimination in the exercise of the electoral franchise and 
to foster our transformation to a society that is no longer 
fixated on race. . . . As Congressman Lewis stated: `I think 
that's what the [civil rights] struggle was all about, to 
create what I like to call a truly interracial democracy in the 
South. In the movement, we would call it creating the beloved 
community, an all-inclusive community, where we would be able 
to forget about race and color and see people as people, as 
human beings, just as citizens.' '' Justice O'Connor concluded: 
``While courts and the Department of Justice should be vigilant 
in ensuring that States neither reduce the effective exercise 
of the electoral franchise nor discriminate against minority 
voters, the Voting Rights Act, as properly interpreted, should 
encourage the transition to a society where race no longer 
matters: a society where integration and color-blindness are 
not just qualities to be proud of, but are simple facts of 
    But the bill that you are considering today will ignore 
what John Lewis said about the changes in the South and will 
continue indefinitely the preclearance provisions of section 5.
    And it would explicitly overturn Justice O'Connor's 
decision in Georgia v. Ashcroft.
    And it would also ignore the warning that Justice Scalia 
gave in Bossier Parish II about the limits of Congress's 
authority, and overturn that decision.
    And, at a time when we are struggling with the issue of 
immigration, and when the one thing that everybody ought to be 
able to agree on is that we need to focus more attention on how 
to make sure that those coming to our country can become 
integrated into our society, that we strengthen the social glue 
holding that society together, and that all of us be able at 
least to communicate with one another, this bill would tell 
immigrants, hey, if you can't speak English, no problem, 
Congress will even force local governments to print ballots in 
foreign languages.
    This bill is bad for those immigrants because it says that 
you can be a full participant in American democracy without 
knowing English--which is a lie. This bill is bad for all 
Americans because it perpetuates the racial gerrymandering and 
racial segregation that is now an inextricable byproduct of the 
section 5 preclearance process. In fact, the bill makes that 
process worse by overturning Bossier Parish and Georgia v. 
    All of this is bad policy and it is also unconstitutional. 
Sometimes the bill exceeds Congress's authority because it has 
no plausible record basis in enforcing the Constitution's ban 
on intentional racial discrimination in voting.
    And sometimes it violates principles of federalism.
    And sometimes it actually turns the Constitution on its 
head and tries to guarantee racial gerrymandering and racial 
    I'm not happy to say this, Mr. Chairman, but I believe I 
must. What I'm afraid has happened is that Democratic 
Representatives--that's capital ``D'' Democratic 
Representatives--are afraid in this area to do anything that 
might offend some minority incumbents and some of their 
minority constituents. Their Republican counterparts are afraid 
to be called racist by various demagogues and interest groups. 
And both parties, especially Republicans, are politically happy 
with segregated districts and uncompetitive contests.
    I hope that there will be enough Representatives and 
Senators, or a President, out there who take seriously their 
oaths to the Constitution, who are willing to stand up to those 
who will call anyone a racist who stands in the way of their 
liberal agenda, and who will not let short-sighted political 
calculations tempt them from constitutional principle and the 
principle of nondiscrimination and nonsegregation.
    Thank you.
    [The prepared statement of Mr. Clegg follows:]

                   Prepared Statement of Roger Clegg

    Mr. Chabot. Thank you.
    Mr. Adegbile, you're recognized for 5 minutes.


    Mr. Adegbile. Good morning, Chairman Chabot, Ranking Member 
Conyers, Congressmen--or I should say Congresspeople Watt, 
Scott, Sanchez, Van Hollen, Franks. It's a great pleasure to be 
with you this morning to speak on the topic of H.R. 9.
    Today I will speak very briefly to three topics: The 
proposed modification to section 5 to address the second of the 
Supreme Court's Bossier decisions; the proposed modification to 
section 5 to address aspects of the Supreme Court's ruling in 
Georgia v. Ashcroft; and the congressional power to renew the 
expiring provisions of the VRA under its enforcement powers 
under the 14th and 15th amendments.
    With respect to the Bossier II modification, I think it's 
very important to note that in a very complex area of law the 
problem with Bossier Parish II is very understandable to 
everybody whether they be a lawyer or not, a representative or 
not. The problem is that the Voting Rights Act was clearly 
intended to stop discrimination in voting. It was most 
certainly intended to stop intentional discrimination in 
voting, and it was a long history of intentional discrimination 
that gave rise to the Voting Rights Act. Section 5 in 
particular was a special provision designed to stop entrenched 
discrimination and persistent efforts to circumvent court 
    To the extent that Bossier II requires section 5 to allow 
evidence of intentional discrimination to go forward and not 
turn back voting changes, it is nonsensical, it is inconsistent 
with congressional intent, and it is appropriate for the 
Congress to move swiftly to address that case.
    There's another point I would like to make about the 
Bossier II case, and that point is important as well. There is 
a tendency for those who oppose the very effective provisions 
of the Voting Rights Act to try and suggest that every single 
issue rises to constitutional importance. Congress has the 
power to enact the Voting Rights Act. We know that because the 
Supreme Court has told us on many occasions over the course of 
decades. The fix to Bossier II is statutory in nature. It does 
not rise to constitutional moment, and this body has the power 
to fix that statute, to stop intentional discrimination in the 
section 5 preclearance process so that the burden will not be 
foisted upon individuals in communities, often without 
resources and access to voting experts, to institute costly 
litigation to stop discrimination.
    Turning to Georgia v. Ashcroft. That case was a break with 
longstanding precedent that had elevated the ability of 
minority voters to elect candidates of their choice. And when I 
say candidates of their choosing, I do not mean only African-
American candidates or Latino candidates--candidates who the 
minority communities choose to serve them in this body and in 
State and local bodies. That ability-to-elect standard was very 
important in the context of section 5. It was important because 
there were many intentional efforts to limit the ability of 
minority communities to participate equally in the political 
    In a winner-take-all game, which is the way our election 
system is structured, it's very important to be able to have 
your voices represented. The ability-to-elect standard has done 
that effectively. And if one reads Georgia v. Ashcroft 
carefully, the Supreme Court recognizes that the ability-to-
elect standard is important, because they don't discard it 
altogether. However, they give legislatures too much leeway. 
They give legislatures the opportunity to choose a course of 
action, to pursue influence, which is an ill-defined concept. 
Everybody understands in common parlance that it's important to 
have influence in a political situation. But what we have found 
in light of racially polarized voting patterns, which persist 
in many of the covered jurisdictions, is that often influence 
alone is not enough, and influence is easy to hide behind. And 
this is one of the real harms that Georgia v. Ashcroft could 
bring to section 5.
    It's easy to advance influence as a theory by which to 
cloak intentional vote dilution and discrimination. That is the 
danger. We haven't seen the full expression of that danger yet, 
because Georgia v. Ashcroft, as this distinguished panel knows, 
was decided late in the redistricting cycle. If Georgia v. 
Ashcroft is not corrected, as this bill intends to, it could 
lead to a very substantial undermining of the power of minority 
communities to have their voices heard in legislatures.
    I want to touch just briefly in my remaining time on the 
congressional power to enact these renewal provisions. It's 
very important to note that both the 14th and 15th amendments 
are sources of power for Congress to act. The Supreme Court has 
repeatedly--and I said this already--but repeatedly, over many 
decades, upheld Congress's power to establish section 5, and 
the Voting Rights Act's provisions, and has done so after the 
case of Boerne v. Flores, which many throw up as a limit on 
congressional power in the context of voting.
    To be sure, Boerne and its progeny tell us to look at the 
record carefully. It directs this body to be careful in its 
fact-finding. But this body continues to be the body that is 
best suited to make that fact-finding. I think that the record 
is very well-established. I don't have time to go into all of 
the examples.
    But I look forward to addressing any questions that the 
panel may have. I appreciate this opportunity.
    [The prepared statement of Mr. Adegbile follows:]

                 Prepared Statement of Debo P. Adegbile

    Mr. Chabot. Thank you very much.
    The Members of the panel up here now each have 5 minutes to 
ask questions of the witnesses, and I'll begin with myself and 
I recognize myself for 5 minutes for that purpose.
    Mr. Hebert, I'll begin with you, if I can. How 
administrable is the standard established by the Supreme Court 
in Georgia v. Ashcroft and how does it deviate from the 
standard set by the Supreme Court in 1976 in Beer v. United 
States, which was the standard followed by the Court for nearly 
30 years?
    Mr. Hebert. Well, Beer was a case that said that the 
effects prong of section 5 was to be measured by whether or not 
the proposed change retrogresses minority voting strength. 
Georgia v. Ashcroft did take a different approach to looking at 
retrogression in the context of a proposed redistricting plan. 
In Georgia v. Ashcroft the Supreme Court, and I agree with Mr. 
Adegbile that they have attempted to give States more leeway, 
in a sense, by saying that no longer will you be bound to 
simply look at the number of minority controlled districts you 
had before and compare it to the number of minority controlled 
districts you have afterwards and if there are less in the 
afterwards, then that retrogresses minority voting strength. 
That seemed to be a fairly bright-line test before--you looked 
at the number of effective minority districts that minority 
were electing candidates of their choice, and then you compared 
the proposed plan and measured them up.
    In Georgia v. Ashcroft, the Supreme Court said there are 
really three types of districts that should be in the calculus. 
There are majority-minority districts; there are so-called 
coalition districts, where minorities aren't a controlling 
majority by themselves but maybe operate in coalition with some 
other group, some other minority group or perhaps Anglos, to 
elect a candidate of their choice; and influence districts. And 
that you can really look at the totality of the plan before and 
see how many of those categories of districts you have and how 
many you see in the new plan in those categories. And if 
overall, in the totality of circumstances, there's been no 
retrogression, then the plan should be precleared.
    There was an important fact in Georgia v. Ashcroft, which 
is that nearly all of the minority legislators in the Georgia 
legislature agreed with the plan to actually reduce down the 
percentages of some of the more heavily Black districts 
downward, where they still felt they could have effective 
control, and so the Supreme Court credited that testimony as 
    I think, you know, that's a long answer to a short 
question, but it's really--the fact is that it did change the 
playing field, as the dissent pointed out in Georgia v. 
Ashcroft, by really taking what was previously a bright-line 
test and really replacing it with something that would be more 
difficult to administer by the Justice Department or the D.C. 
court, which is looking at the totality of circumstances test.
    Mr. Chabot. Thank you. Let me follow up my next question 
with you as well, and then I'd invite any of the other panel 
members to answer as well.
    H.R. 9 restores the discriminatory purpose standard to 
section 5 such that any voting change made with a 
discriminatory purpose cannot be precleared under section 5. 
What impact will this change have on minority voters, and how 
difficult will it be for the Department of Justice or the 
United States District Court for the District of Columbia to 
administer? And does the change impose any additional burdens 
on covered jurisdictions? Is this intent more or less 
consistent with the way the standard was interpreted and 
applied prior to 2000?
    Mr. Hebert. Well, the answer to, certainly, the last part 
of the question is it definitely restores the law as it existed 
prior to Bossier II. Bossier II represents, I think, really, 
the low-water mark for Supreme Court activity in the civil 
rights area, in a sense, because what it said was that they 
would reinterpret the statute to allow a jurisdiction that 
engages in unconstitutional discrimination in voting and 
develop a plan around that unconstitutional discrimination, and 
they could still get preclearance under the Voting Rights Act, 
a statute that was enacted to further the purposes of the 14th 
and 15th amendments. Many of us were really stunned that the 
Court could really rewrite the statute, which is what it did, 
and limit it in that way.
    The Supreme Court has since at least the mid-1970's laid 
out a road map, and the Justice Department followed this for 
years and years, and still does in many cases, about how to 
take the circumstantial evidence of intent and draw inferences 
of purposeful discrimination out of it. It's called the factors 
that come out of the Village of Arlington Heights case back in 
1977, and there are factors that you can actually take into 
account and say, look, based on what happened here--the 
context, the events that led up to the decision, the effect of 
the decision, whether they followed normal procedures, and so 
on--you can look at all of that and then draw an inference 
about whether or not intentional discrimination played a role.
    The Justice Department has, and the Supreme Court, too, 
those two branches of Government have for years been using that 
approach to prove discrimination. It would really not add much 
burden on the States to have to show that, in my view. They'd 
been able to work under that standard from 1965 to 2000. And, 
you know, for the most part, the Justice Department followed 
Supreme Court precedent in its interpretation.
    Mr. Chabot. Thank you. If other witnesses would like to 
answer, they can--or not.
    Mr. Clegg. Well, just briefly, Mr. Chairman. On the 
question you asked about whether the approach taken by Justice 
O'Connor in her opinion in Georgia v. Ashcroft would be more 
difficult to administer than what Mr. Hebert has called the 
bright-line approach that he favors, I suppose it's true that 
an approach that mechanically invokes quotas and racial 
gerrymandering is very easy to administer. It's very automatic. 
You don't have to consider all the other nuances and factors 
that Justice O'Connor thought ought to be included.
    But ease of administration is not the only thing that we 
ought to be concerned about. And I think that that's what 
concerned Justice O'Connor, that the automatic approach of 
saying that, well, if you can draw a majority-minority 
district, you've got to do that, is easy to administer, but 
it's not consistent with the ideals of the Voting Rights Act.
    With respect to the Bossier Parish II issue, I agree with 
Mr. Hebert that there are a lot of things that go into the 
inquiry about whether purposeful racial discrimination has 
occurred. I don't think that we disagree about that. The 
question is whether section 5 should be interpreted to allow 
the Justice Department to refuse to preclear a change that is 
not retrogressive. And I think that Justice Scalia was right 
when he said that that was not the purpose, has never been the 
purpose of section 5, and that--if you were to interpret this 
that way, and this is what he said, that it would create real 
constitutional problems.
    Mr. Chabot. Thank you very much.
    Mr. Adegbile?
    Mr. Adegbile. First, with respect to the question about 
Georgia v. Ashcroft, it's very clear that the Supreme Court's 
decision will make the administration of section 5 much more 
difficult. Justice Souter did an able job in the dissent in 
that case in pointing out that the Court had given no guidance 
as to how to compare the tradeoffs which it contemplates. Under 
section 5, DOJ or a reviewing court begins with the status quo. 
They don't take the standard from the air. They look to see 
what are the circumstances under which minority voters find 
themselves at present? And then they examine the voting change 
to see whether the voting change is worsening the position of 
minority voters.
    When you have influence in the mix, it becomes very hard to 
understand what the benchmark is. How many opportunity-to-elect 
districts are equal to a so-called influence district? How many 
influence districts do you have to put in place if you take 
away a coalition district? The analysis gets very complicated 
and the statute will start to collapse of its own weight--which 
I hope was not the Court's intention, but I think that it's 
very important for this body to move to restore the clearer 
standard of the ability-to-elect that is reflected in H.R. 9.
    With respect to Bossier Parish II, the language in the bill 
clearly goes back to the pre-Bossier II standard. And it just 
simply does not make sense for DOJ or a court to have to turn a 
blind eye in a section 5 context to evidence of intentional 
discrimination. I mean, it's particularly disturbing, because 
we hear under the Boerne case and its progeny that it's very 
important to look to incidents of intentional discrimination. 
Well, I'm here to tell you that without section 5's protections 
and without this restoration, there will be more of those 
incidents that go completely undetected because there are not 
the resources or wherewithal to turn them aside. Section 5 is 
very effective in doing that and it's entirely consistent with 
the purposes of the Voting Rights Act, and I believe Congress's 
intent, to fix that case.
    Mr. Chabot. Thank you very much. My time has expired.
    The gentleman for Michigan, Mr. Conyers, is recognized for 
5 minutes.
    Mr. Conyers. Thank you, Mr. Chairman.
    I wanted to ensure our friend Mr. Clegg that John Lewis 
is--we're trying to get him to the hearings so that he can help 
you be more comfortable in your bed at night to find out that 
John Lewis is a full supporter of this bill--as a matter of 
fact, he's a cosponsor--and has been working with us on it. He 
would be probably as surprised as myself to find out that he is 
now being quoted as a reason not to be supportive of the bill. 
So I'm hoping he can get here from his other Committee 
assignment to join us here, because I've talked to him many 
times and I'm sure he'll be able to speak better to his 
quotation that you made than I can.
    Mr. Clegg. Well, actually, he would not be surprised 
because I've done the same thing in the past when we've 
appeared on a panel together. So----
    Mr. Conyers. He's used to you saying that?
    Mr. Hebert. He's used to---- [Laughter.]
    Mr. Conyers. Oh, okay. Well, then, I----
    Mr. Clegg. He's used to hearing those words quoted. And of 
course, in his own testimony before the Subcommittee, he was at 
great pains to----
    Mr. Conyers. Yeah. Did he help straighten you out? That 
didn't make any impression upon you, I presume.
    Mr. Clegg. Well, look----
    Mr. Conyers. Well, if he's already been----
    Mr. Clegg [continuing]. Mr. Conyers, he----
    Mr. Conyers. Look, if he's already----
    Mr. Clegg. That's what he said.
    Mr. Conyers [continuing]. Denied it and you still insist on 
quoting him, then there's no point in my going any further on 
it. I've only got 4 minutes left.
    Mr. Clegg. He doesn't deny the accuracy of the quotation.
    Mr. Conyers. Well, I'm sure.
    Let me go somewhere else here now. Section 203. Now, the 
notion that we're encouraging people who are newly sworn-in 
citizens not to continue to improve in English is an important 
consideration. And for me, it's a sensitive one because we've 
already heard from a number of Members of Congress on this who 
have some reservations. And we know that immigration is a huge 
    So I wanted to ask Mr. Adegbile whether or not we can get 
through this particular time situation and continue to have 
language assistance where needed, in view of the record that's 
been compiled that shows that it is not particularly expensive 
and doesn't seem to put out election workers at all.
    Mr. Adegbile. Thank you for that question, Congressman 
Conyers. Section 203 is a critical aspect of the Voting Rights 
Act. It was part of the evolution of Congress's understanding 
about our democracy and the barriers to that democracy. It's a 
provision that applies only to citizens--only to citizens--and 
many people try to distort the record on that issue.
    People who receive 203 assistance at the polls are people 
who pay taxes, they are people who serve in wars, they are 
people in our communities, and they deserve a say in the 
political process. It is simply nonsensical to suggest that 
somebody is going to make a decision about whether or not they 
are able to learn and speak English because of a rule that 
allows them to have translated materials in voting. I don't 
think that anybody seriously posits that argument. And if folks 
say it, I think it's a cynical argument.
    The NAACP Legal Defense Fund supports 203 language 
assistance because we recognize that barriers to voting affect 
many different types of citizens and that we don't enrich the 
democracy by saying some citizens can have access and others 
cannot. I am aware of some of the testimony that will be 
presented this afternoon. It will go in detail to these issues. 
And I think that the record on 203 that's before Congress now 
and continuing to be established will be at least as strong as 
the record that has been presented at previous renewals of the 
Voting Rights Act.
    Mr. Conyers. Thank you.
    Mr. Hebert, have you any thoughts about that? Because to 
me, this is the one sensitive issue that I see standing in 
front of us. I think we're moving in a quite uniform way. We've 
kept in touch with our legislative counterparts in the other 
body. But in this era of immigration emotionalism, their 
marches and so forth, I want to get from both of you the best 
suggestions as to how we move to resolve this issue as 
expeditiously and effectively as we can.
    Mr. Chabot. The gentleman's time has expired, but the 
witness can answer the question. And I would just, again, note 
that we do have a hearing on this at 2 o'clock this afternoon, 
on section 203. But the question has been asked, so it can be 
    Mr. Hebert. Thank you, Mr. Conyers, and Mr. Chairman for 
allowing me to answer.
    You know, I follow the Justice Department's enforcement of 
voting rights laws pretty closely. Since 1999, nearly all of 
the cases the Justice Department has brought in Federal court 
under the Voting Rights Act have been brought to enforce the 
minority language provisions under 203. Over 90 percent of 
their cases, and quite a number of them. And many of them get 
settled quickly because the jurisdictions find that the fix, 
that they are really not things that they are falling down on, 
are fairly easy to do and they recognize that they should be 
    We talk a lot of times about citizenship and people being 
naturalized and the process and, you know, learning to speak 
English to become a citizen. Well, you know, if a child is born 
in this country and their parents aren't citizens, but they're 
born here, even if they're undocumented people, the parents, 
the child is a citizen at birth. They may grow up in a 
household that doesn't speak English. When that boy or girl 
turns 18 years of age and is ready to vote, why shouldn't they 
be able to go to the vote and get meaningful information to 
make their vote as effective as mine? Why would we deny people 
that right? In the United States we open our hearts and open 
our minds to people in this country, and that's why we, many 
argue that we have an immigration problem today, because we've 
been too soft.
    But the fact remains that in the area where we're 
protecting the most fundamental right and trying to ensure that 
we do exactly what Mr. Clegg read, that John Lewis's vision for 
America is and Justice O'Connor's vision for America is, to get 
people included in the process, why would we not extend those 
bilingual provisions as we've done?
    Mr. Conyers. Thank you very much.
    Thank you, Mr. Chairman.
    Mr. Chabot. The gentleman's time has expired. Thank you.
    The gentleman from Arizona, Mr. Franks, is recognized for 5 
    Mr. Franks. Well, thank you, Mr. Chairman. And thank you, 
members of the panel.
    I know that when we discuss subjects like this, I think 
it's perhaps important for us just to back up for a moment and 
remind ourselves, you know, of the simple idea that America is 
first and foremost an ideal, an ideal that all human beings are 
created equal and endowed by their Creator with certain 
unalienable rights. And I think that that is indeed what 
America's best gift to the world is, to somehow not only 
maintain that but to see it exported throughout the planet.
    Having said that, you know, I'm going to make an admission 
that legislation like this catches some of us without full 
understanding of its overall impact. You know, it's a fairly 
esoteric endeavor that we face here. But having that desire to 
see all human beings recognized for the miracles that they are 
and somehow that we would become that color-blind society that 
cares about people because they're human beings, if we can 
start there and pursue that with our hearts, you know, I think 
that there is somehow hope for all of it.
    Now, what I'd like to do, Mr. Clegg, I'll start with you, 
if you don't mind, is the Voting Rights Act has been in place 
for some time and there are going to be some things that are 
addressing Supreme Court decisions here. And if you can, in 
practical terms for someone who is not an expert, can you help 
me understand how, in practical terms--you know, an election--
not so much in an outcome-based circumstance but in the effect 
of some of the corrections or the ways that this bill addresses 
both the Georgia v. Ashcroft and the Bossier decisions? How 
does this affect those decisions and, in practical terms, how 
is it played out?
    Mr. Clegg. Putting aside questions of constitutionality, 
the fundamental policy problem that I have with this bill is 
the fact that section 5, unfortunately, has become a powerful 
engine for the segregation by race of voting districts. And I 
don't think that that was the original intent of the Voting 
Rights Act. I don't think that that's why people marched at 
Selma. I think that that turns the purpose of the Voting Rights 
Act on its head. And unfortunately, that is the single greatest 
effect now of section 5. And the overruling of Bossier Parish 
II and particularly the overruling of Georgia v. Ashcroft will 
exacerbate that problem.
    That's in a nutshell the most fundamental problem that I 
have with this legislation.
    Mr. Franks. Mr. Adegbile, your name has been said a number 
of different ways today and I'm not sure I said it right. So I 
hope you repeat it yourself for all of us. But would you take a 
crack at the same question?
    Mr. Adegbile. Sure. And you did indeed pronounce it 
correctly. I apologize to the panel. I don't know of any 
translation for that particular name, and it always gives me 
difficulty as well. So I thank you for your efforts.
    With respect to the two decisions, I think Bossier II is 
very simple and I think it's easy to sort of break it down. 
Bossier II, as the Congress intends to correct the statute, the 
fix will have the effect of making it easier to detect and 
block some forms of intentional discrimination in voting. It's 
that simple. It's consistent with the intent of the statute, 
and that's what it does.
    I can't really imagine the theory of a constitution or a 
nation that would want to make it harder for those forms of 
intentional discrimination to get detected and stopped. That's 
what Bossier II does.
    With respect to Georgia v. Ashcroft, we've heard Mr. Clegg 
say a number of times that the Georgia v. Ashcroft modification 
will lead to the racial segregation of voters and other things 
to that effect. There are two important points. One is in my 
testimony, and that is there are many factors that map-makers 
consider when they draw districts. I need not tell these 
Members that because all of you are familiar with the process. 
But in the first instance, districts are drawn where voters 
are, where they live. There is residential segregation in the 
United States of America. It is not because we have the vote 
and because we have districts. It has its roots in the history 
of discrimination, and it persists to this day.
    So in a system where we draw districts to give voices, 
local voices, an opportunity to participate in the political 
process, drawing some of those districts around segregated 
communities that are living under those circumstances because 
of our history of discrimination is not only appropriate, it's 
necessary. And the Voting Rights Act permits that because, even 
though minority people very often live together, there were 
people that would try to fragment these populations or over-
concentrate them to minimize their voices in the political 
    Significantly, there's also a line of Supreme Court 
decisions that exercises a check on racial gerrymandering, 
which Mr. Clegg is very familiar with. Shaw v. Reno and its 
progeny limit the ways in which race can be used in the 
redistricting process. Nothing in H.R. 9 changes those cases--
some may think that the Voting Rights Act couldn't change those 
cases, since they are constitutionality based. Those limits 
continue to exist, and that is why the modifications suggested 
don't lead to racial gerrymandering as Mr. Clegg has suggested.
    Mr. Franks. I thank the gentleman. My time has expired, Mr. 
Chairman. Thank you.
    Mr. Chabot. Thank you.
    The gentleman from North Carolina, Mr. Watt, is recognized 
for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    Let me start by asking unanimous consent to submit for the 
record the statement of Congressman John Lewis. He anticipated 
that he might not be able to get here today, probably 
anticipated what Mr. Clegg was going to say.
    Mr. Chabot. Without objection, so ordered.
    Mr. Watt. All right. And having submitted it for the 
record, let me just read specifically what he concludes so 
that--which is actually not entirely inconsistent. I mean, it 
reinforces in some respects what you said.
    ``The Voting Rights Act was necessary in 1965, and 
unfortunately it is still necessary today, as the extensive 
Committee record makes clear. We have come a great distance, 
but we still have a great distance to go before all Americans 
have free and equal access to the ballot box. This legislation 
is among the most important that this Congress will consider, 
and I trust that we will take our responsibility to protect the 
voting rights of all Americans very seriously as we pass this 
legislation. We must renew the expiring sections of the Voting 
Rights Act in this session of Congress. Thank you.''
    All right, now that we've got that square. I guess, if 
you've heard, been on panels with John Lewis before and you've 
heard him take issue with your interpretation and Justice 
O'Connor's interpretation of what he said before, leads me some 
to question your interpretation and your intent on the rest of 
this. So let me go straight at it.
    I can understand how you can question the constitutionality 
of the statute. The Supreme Court's already ruled on that, so 
at least you don't mind taking on either John Lewis or the 
Supreme Court.
    Mr. Clegg [continuing]. The constitutionality of this bill.
    Mr. Watt. All right. My question to you is have you read 
the record. Now, Mr. Hebert said he had read the record in, I 
mean, almost 9,000 pages that we've developed here. Have you 
read the record?
    Mr. Clegg. I have----
    Mr. Watt. Come on, just tell me whether you have or have 
    Mr. Clegg. Yes. I have. I can't say that I've read every 
word, but I've looked at every page.
    Mr. Watt. Okay. All right. I got you. So then you might not 
be surprised to find that there are numerous instances in the 
record where we have found that jurisdictions and States have 
been continuing to engage in discriminatory voting actions.
    Or maybe I should just make this simpler. Are you 
contending for the record that States and jurisdictions are not 
still engaging in efforts to diminish the impact of minority 
    Mr. Clegg. Congressman Watt, of course there are still 
    Mr. Watt. A yes or no answer might suffice. If you're 
contending that, I mean, I'd like to know that, or if you're 
not contending it. Don't finesse it, though.
    Mr. Clegg. Congressman Watt, of course I'm not saying that 
there are no instances of discrimination. But what I said in my 
testimony, in my written testimony, was that I don't believe 
that the record that you have compiled----
    Mr. Watt. Which you haven't read.
    Mr. Clegg [continuing]. Justifies--looked at every page.
    Mr. Watt. Okay.
    Mr. Clegg. And, you know, let's be fair. You haven't read 
every word of the testimony either.
    Mr. Watt. I've been here for all of it, though.
    Mr. Clegg. Yeah, but they don't--the record includes a lot 
that was not spoken, correct?
    Mr. Watt. That's true.
    Mr. Clegg. All right. And, you know, you go through page 
after page after page of this testimony----
    Mr. Watt. I think we've made the point, Mr. Clegg.
    Mr. Clegg [continuing]. And the same people and----
    Mr. Watt. Let me move on to another question.
    Mr. Clegg [continuing]. You know what's going to be there. 
And, I mean, you know, look, if you don't want a full answer, 
that's fine. But that's not going to help your case in showing 
that the Subcommittee----
    Mr. Watt. No, I think I got a full answer, and in this case 
you seem to be as willing to disregard the intent and what else 
is going on around you as you have been willing to disregard 
the intent of what John Lewis has said over and over and over 
again, and what I said in my opening statement. We are making 
progress. I don't think anybody would argue with you on that.
    Mr. Clegg. And my point, Congressman. I'm not trying to 
mislead anybody. Of course, I know that John Lewis supports 
this bill. He told me that. He has said that for this record. 
My point in quoting him is that his statement about the 
transformation of the American South is completely inconsistent 
with the reauthorization of section 5. And it was relied upon 
by Justice O'Connor in Georgia v. Ashcroft, which this bill 
would overturn.
    Mr. Watt. That's exactly right.
    Mr. Clegg. Okay? So----
    Mr. Watt. Because we think that conclusion is inappropriate 
at this point, and I think that's Congress's right to think 
that at this point.
    Now, let me----
    Mr. Chabot. The gentleman's time has expired. Would he like 
an additional minute?
    Mr. Watt. Can I get just 1 additional minute, because I 
want to----
    Mr. Chabot. The gentleman is recognized for 1 minute.
    Mr. Watt [continuing]. Deal with my other two colleagues 
here, Mr. Adegbile and Mr. Hebert. I didn't want this to become 
just an issue with Mr. Clegg here.
    I mean, Mr. Scott and I have had this conversation before. 
I'm not sure I necessarily agree with you all's interpretation 
or the implication of what ability to elect candidates of 
choice means. Because the ability to elect candidates of 
choice, as I understand it, is not an invitation to protect 
only majority-minority districts. Electing candidates of choice 
can be candidates from coalition districts, influence districts 
also. Is that not the case?
    Mr. Hebert. Yes, it is. It----
    Mr. Watt. Okay. That's all. I just wanted to be clear, 
because I didn't want to leave the wrong impression, because 
the Supreme Court sometimes picks up, as Mr. Clegg does, the 
wrong impression from these things. I want this to be specific. 
There is nothing to suggest that candidates of choice have to 
be elected from majority-minority districts. Is that correct?
    Mr. Adegbile. I think Georgia v. Ashcroft can be read to 
suggest that nine justices agreed with that statement.
    Mr. Watt. Right. Okay. All right. I just wanted to be clear 
on that. I wanted to clarify the record.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Scott, is recognized for 5 
    Mr. Scott. Thank you, Mr. Chairman. I thank the witnesses 
for testifying.
    The evaluation of a district, is there anything in this 
legislation that sets a national standard for ascertaining 
whether a district is one from which a candidate of choice can 
get elected? It's been my experience that it varies by 
district. So my question is does the language in Court 
precedents require a district-specific evaluation to ascertain 
whether or not minority voters have an opportunity to elect 
their choice. Mr. Hebert?
    Mr. Hebert. No, this bill does not create a national 
standard to that effect. And you're correct that, even under 
existing Supreme Court precedent, which this bill is consistent 
with, in my view, the opportunity to elect a candidate of your 
choice, preferred candidate of your choice in the district can 
range from, you know, heavily minority in some instances is 
necessary to less than 50 percent in others.
    Mr. Scott. Following up on that, in some coalition 
districts African-Americans have in fact been elected and 
candidates of choice elected, as the gentleman from North 
Carolina has indicated. Does the language in the bill protect 
those districts from being dismantled?
    Mr. Hebert. Yes, it does.
    Mr. Scott. Under the language in the bill, so long as an 
opportunity district is not dismantled, does the language allow 
dismantling a coalition district adjoining the district, or 
does a plan which keeps the number of opportunity districts 
equal, but dismantles all of the coalition districts, would 
that plan violate section 5?
    Mr. Hebert. In my view, it would.
    Mr. Scott. You have litigated many of these cases, is that 
    Mr. Hebert. Yes, I have.
    Mr. Scott. Who pays your legal fees?
    Mr. Hebert. Sometimes no one. [Laughter.]
    It varies, actually. If I represent a State or local 
government, the State or local government pays. In many 
instances I have served as pro bono counsel for public interest 
groups. In others, the Democratic Party has paid me.
    Mr. Scott. If an area has been victimized by an illegal 
scheme, are there circumstances where they cannot come up with 
the money to get themselves out of that situation?
    Mr. Hebert. Bringing vote dilution cases, Congressman 
Scott, is a very, very costly enterprise. You need expert 
witnesses, you need skilled lawyers, because the other side is 
going to lawyer up big time, usually. I would estimate that the 
cost of a vote dilution case, to bring a vote dilution case 
through trial and appeal, runs close to a half a million 
dollars in costs.
    Mr. Scott. And much of that, under present law, is not 
    Mr. Hebert. That's correct.
    Mr. Scott. Under the bill, would most of the costs be 
    Mr. Hebert. Yes, they would.
    Mr. Scott. If you win?
    Mr. Hebert. If you prevail.
    Mr. Scott. Under section 5 preclearance, if there is no 
preclearance, even if a client plan is clearly illegal, if we 
don't extend the preclearance provision, if a plan is clearly 
illegal, what would happen until a case could be brought?
    Mr. Hebert. The discriminatory system would go into effect. 
Minority voters, presumably, would be harmed. And it might be 
too little too late to even bring a suit if you could muster 
the resources to file it.
    Mr. Scott. And if you finally win, is it your experience 
that the person running for reelection would have the 
advantages of incumbency?
    Mr. Hebert. Absolutely.
    Mr. Scott. So they would benefit during the time when the 
illegal plan was in effect and continue to benefit because we 
did not extend the preclearance provision. With the 
preclearance provision, the plan never would have gone into 
effect in the first place, is that right?
    Mr. Hebert. That's correct. Once it goes into effect, you 
have a sitting incumbent. To get that sitting incumbent out, 
that would be a fruit of the poisonous tree, an advantage that 
incumbent would have against a challenger.
    Mr. Scott. Mr. Hebert, you've represented people in bailout 
cases. For those who have not discriminated in the last 10 
years, is there any problem with bailing out?
    Mr. Hebert. No. No, it's just really the only problem with 
bailing out is more people should know about it.
    Mr. Scott. Well, is it not a fact that some areas, for race 
relations purposes, would prefer just not to bail out so that, 
as they change election laws, the entire community would know 
that nobody's being discriminated against?
    Mr. Hebert. That's true. A lot of jurisdictions like 
section 5 preclearance and like to get a stamp of approval from 
the Justice Department that their voting system is non-
retrogressive. And I've heard a number of officials say that.
    Mr. Scott. My time's up.
    Mr. Chabot. The gentleman yields back his time.
    The gentleman from Iowa I know just arrived, but is he 
interested in asking some questions?
    Mr. King. Mr. Chairman, I'd be very grateful to have that 
    Mr. Chabot. Excellent. We appreciate that. The gentleman is 
recognized for 5 minutes.
    Mr. King. Thank you, Mr. Chairman. And I thank the 
witnesses for their testimony and regret I wasn't able to 
listen to it all in its entirety, although I do come to this 
panel with a significant degree of curiosity with regard to 
this whole subject matter of reauthorization of the Voting 
Rights Act.
    You know, I've watched this society evolve from the time I 
was a young man and I saw the civil rights demonstrations in 
the streets, and I do believe and will always contend that it 
was necessary to establish the Voting Rights Act when we did. 
But I also don't see a path for us to ever get to the point 
where we could just simply recognize that this society has 
evolved to the point where we could get along without it. And I 
don't see a path that's being proposed on how we might be able 
to change the preclearance qualifications, for example, let 
alone the multilingual language that's in there.
    But I just direct my inquiry to Mr. Clegg. Your 
constitutional view? Could you state that with a little more 
depth, and your viewpoint on how you see this from a 
constitutional perspective in the Voting Rights Act?
    Mr. Clegg. Sure. Section 5 is constitutionally problematic 
for two reasons. First of all, there are federalism concerns 
because of the extraordinary nature of the preclearance 
procedure. Voting activities are usually a State matter. 
Sometimes they are constitutionality committed to the States. 
And therefore there's a presumption that these matters are 
going to be handled by the States without the State having to 
go get permission from the Federal Government beforehand. The 
Voting Rights Act section 5 obviously changes that.
    The other thing that section 5 does is allow the Justice 
Department to refuse to preclear a change not only when it is 
retrogressive and there is a discriminatory purpose, but also 
when it's retrogressive and there is simply a disproportionate 
effect on one racial group or another. The reason that that's 
constitutionally problematic is that the Supreme Court has made 
clear that Congress's authority in this area, that the 
Constitution prohibits only disparate treatment on the basis of 
race, not simply State actions that have a disparate impact.
    Mr. King. Mr. Clegg, with regard to that--and I didn't hear 
you reference the 14th amendment Equal Protection Clause in 
this--but as I look at the results of this, and the Supreme 
Court has ruled that it's all right to discriminate on the 
basis of race as long as you're discriminating on the basis of 
advantaging a minority, has there been a case brought forward 
before the Court where there has been a non-minority that has 
been disadvantaged because of the redistricting and the 
gerrymandering to benefit minorities?
    Mr. Clegg. Well, yes. That would be the Shaw v. Reno 
decision, which the NAACP referenced here. So the prohibition 
against--and this is actually a third way that section 5 raises 
constitutional problems. Again, unfortunately, it has been 
interpreted to require racial gerrymandering and to require the 
racial segregation of districts. And that is inconsistent with 
the Equal Protection Clause and with the 15th amendment, as the 
Supreme Court explained in Shaw v. Reno. I would say that it is 
unfair and wrong when that kind of segregation occurs not only 
to White voters, but also with respect to Black voters.
    Mr. King. In Iowa we have a redistricting plan that 
separates all that and doesn't allow any gerrymandering and 
it's totally blind and unbiased in many, many regards. And I 
understand the politics of this on the one side--actually 
politics on both sides--but would you speculate as to what this 
country would look like if we just simply didn't reauthorize 
the Voting Rights Act and we let the conscience of the States 
and the people in this country regulate?
    Mr. Clegg. Well, it's important to keep in mind, 
Representative King, that many provisions of the Voting Rights 
Act are permanent. And----
    Mr. King. Two or three, for example?
    Mr. Clegg. And many of them are uncontroversial. And of 
course the 15th amendment and the 14th amendment are permanent 
as well. So just because section 5 is not reauthorized does not 
mean that a State that decided that it wanted to discriminate 
on the basis of race would be able to. It would still be 
blocked from doing that by the 14th amendment, the 15th 
amendment, and the permanent provisions of the Voting Rights 
Act. And I think that the point that Representative Lewis made 
and that I've made today is that the record is just not there 
to show that the covered jurisdictions, if section 5 were not 
reauthorized, are going to start acting as if it were 1965.
    I mean, one way to look at this, Congressman King, is 
suppose that we never had a section 5 and somebody came forward 
today, in 2006, with this bill. Somebody came forward in 2006 
with this bill that was going to single out the jurisdictions 
that are singled out now by this bill and said, ``Let's require 
these jurisdictions to jump through these hoops and to be 
singled out for the penalty provisions of section 5.'' Would 
that bill--would anybody be seriously considering the enactment 
of that bill? And would anybody seriously think that that bill 
would withstand constitutional scrutiny? And the answer, of 
course, is no.
    Mr. King. Thank you, Mr. Clegg. I yield back.
    Mr. Chabot. The gentleman's time has expired.
    Did the gentleman from Virginia have a request?
    Mr. Scott. Mr. Chairman, part of the reason the 
jurisdictions are the way they are now is because of the Voting 
Rights Act. And I would like, if any of the witnesses have 
closing comments on the continuing need for the Voting Rights 
Act, I would appreciate it if you'd give them an opportunity to 
    Mr. Chabot. Okay.
    Mr. Hebert. I would like to make a statement. Very briefly, 
Mr. Chairman--and thank you, Mr. Scott, for the opportunity to 
address this issue--first of all the Voting Rights Act does not 
require quotas, it does not produce segregated districts. Many 
of the minority opportunity districts that exist today are the 
most integrated districts in the country. They're 50, 55 
percent minority. I mean, you know, there are a lot of Members 
up on this Committee who have come from districts that are 95 
percent White, or better.
    I think the best way to look at this is the way I described 
recently when I was speaking during Black History Month to a 
class. And they said, well, what's the story with the Voting 
Rights Act extension? And I thought, what an interesting thing 
for sixth graders to ask that question. And I said, you know, 
here's the way to look at this. Back in 1982, Congress decided 
that strong medicine was still needed and the prescribed three 
pills a day of penicillin for 25 years. And hopefully, that was 
going to cure the disease of discrimination in voting.
    Now, along the way, what we have found out is that the 
Supreme Court has said, in Georgia v. Ashcroft, well, you don't 
need to take three a day. Only take two a day. And then they 
came along with Bossier Parish and they said, well, we're going 
to take one of those others away, so now you're down to one a 
    Well, the problem with that is that the penicillin you were 
originally prescribed is going to take a lot longer to take 
effect. What I see this bill doing is it gets us back to three 
pills a day, and hopefully a day when we have a healthy America 
in our political process, and racial discrimination ends. The 
disease of discrimination will be over.
    That, Mr. King, I think is really the simple answer to why 
we still need the Voting Rights Act, because the engine of 
racial discrimination runs on.
    Mr. Scott. Mr. Adegbile?
    Mr. Adegbile. Two quick points. Mr. Clegg said that section 
5 is a penalty clause. Section 5, of course, is not a penalty 
clause. Section 5 is a remedy for demonstrated discrimination 
in the area of race in voting. In fact, it may be more 
appropriate to say that without section 5 the penalties that 
were imposed on minority voters for nearly 100 years after the 
passage of the 15th amendment--that is a substantial period of 
time--for nearly 100 years the Constitution was ignored, and it 
was tolerated in this country.
    Section 5 has begun to move us closer to ensuring the 
provisions of the Civil War Amendments. But we're not there 
yet. There's nothing inconsistent with recognizing the progress 
that we have made and also recognizing some of the mechanisms, 
legal and otherwise, that have helped to carry us there.
    In light of the extensive record before this body, and I 
would say it's not just the number of pages, but what's 
contained in it. I will admit I've not looked at or read every 
page, though I have actively been engaged in helping to build 
the record, and it's very substantial. It's substantial at the 
local level. It's substantial at the Statewide level. It's 
substantial as to redistrictings, as to intentional 
discrimination, as to discriminatory effects.
    And finally, I will just say that history did not begin 
yesterday. Mr. Clegg says that we should start to analyze the 
passage or renewal of section 5 by saying, well, let's look at 
today and see how we find the way forward. The history of 
discrimination taught us about how it happens. And what the 
Congress has learned is that discrimination in voting is both 
adaptive and persistent. And it is that adaptive persistence 
that made section 5 necessary in 1965 and, based on the record, 
also today.
    Mr. Scott. Thank you very much.
    Mr. Clegg, did you have something?
    Mr. Clegg. I was just going to say that, with respect to 
the record, when you all started out, it would seem to me that 
you would want the record to do a number of things. First of 
all--and somebody reviewing the record, the Supreme Court 
reviewing the record, is going to look for a number of things.
    First of all, it's going to want to make sure that the 
Committee came into this with an open mind and was getting 
evidence from both sides of this debate. It is going to want 
evidence of intentional, purposeful racial discrimination in 
the covered jurisdictions. And it iss going to need evidence 
that the discrimination that it found in the covered 
jurisdictions was worse than what's going on in the noncovered 
jurisdictions, because, after all, section 5 covers one and not 
the other. And then finally, it was going to need evidence that 
the extraordinary preclearance provisions and the use of an 
effects test rather than an intent test are necessary to ensure 
that purposeful discrimination does not occur.
    And honestly, Mr. Chairman, I think that the record that 
you all have built, while it does have some instances of 
intentional discrimination in covered jurisdictions, is going 
to be inadequate for all of the four reasons that I've just 
    The record reads as if you all made up your minds ahead of 
time and you were trying to compile a record that was going to 
justify what you had already decided that politically you 
wanted to do. You found some evidence of intentional 
discrimination in the covered jurisdictions, but a lot of 
what's in there is not about purposeful discrimination. There 
is, I think, no real showing that the covered jurisdictions are 
more problematic than the noncovered jurisdictions. And 
finally, there's very little attention to why the preclearance 
provisions and the effects test are the best way to get at the 
intentional discrimination that does remain in the covered 
    I think this bill is very vulnerable if it's passed in this 
form and is challenged in court.
    Mr. Chabot. The chair would just note that the record has 
been open and available for all groups of all opinions to 
supplement, to add to this record. And any group that would 
like to add additional information is certainly welcome to do 
    Mr. Watt. Would the gentleman yield?
    Mr. Chabot. I yield to the gentleman, yes.
    Mr. Watt. I hope he will make it clear that the record is 
still open.
    Mr. Chabot. That's correct. So, Mr. Clegg, if you or groups 
that you are aware of would like to add additional material, we 
would be happy to receive that.
    Mr. Hebert, as at least one person in this room--I know 
there are others--that has actually read the whole record, 
would you like to comment on Mr. Clegg's comment about the lack 
of substance or support for reauthorization of the Voting 
Rights Act?
    Mr. Hebert. Yes, I would. Thank you for that opportunity.
    First of all, I think what the Committee had before it at 
the time it started its process was a bill that was already in 
place from 1982, that had been amended and extended in 1982. So 
you obviously had a starting point, and the appropriate thing 
to do was to consider whether those special provisions should 
be continued. You don't start with a clean slate, as Mr. Clegg 
would have us believe. You know, that kind of ignores the whole 
history of discrimination that's taking place in the country. 
You don't come into 2006 and say, okay, could we enact this 
bill as H.R. 9 today if there had been no Voting Rights Act. I 
mean, you know, yeah, if the earth was flat, we would have all 
fell off, too.
    The problem with Mr. Clegg's analysis is that Congress had 
an open mind. The open mind was let's see what evidence is out 
there about whether we continue to need these special 
provisions. And if you have evidence, Mr. Clegg, or anybody 
else, as the Committee said, bring it on. And if those of us 
who support the extension have evidence showing continued 
discrimination, bring it on. I think that's what the 
Committee's process has done.
    As to the racial purpose that's out there, the evidence is 
replete with examples, in this record, of intentional 
discrimination. And the fact is that though there may be 
discrimination taking place in some of the noncovered areas, 
does that mean that section 5 is not working not only because 
there's continued evidence of discrimination in the covered 
areas, but perhaps section 5 has worked to stop it, as it was 
properly supposed to do?
    I mean, for all those reasons, I think that the record that 
the Committee has put together has been an impartially 
assembled record with no preconceived notions and has attempted 
to develop as complete a record as possible to support the 
extension. And I think that, in fact, it has done so.
    Mr. Clegg. Mr. Chairman, I just want the record to reflect 
that I appreciate the opportunity the Committee has afforded me 
to testify and that there have been a number of studies, 
particularly those published by the American Enterprise 
Institute, that have been put into the record that I think make 
my point, that there is not an appreciable difference anymore 
in the degree of discrimination between covered and noncovered 
jurisdictions, and that the record of the covered jurisdictions 
is quite consistent with the sworn testimony that Congressman 
Lewis gave in Georgia v. Ashcroft.
    Mr. Chabot. We appreciate the witnesses' testimony here 
this afternoon.
    Mr. Watt. Mr. Chairman?
    Mr. Chabot. Mr. Watt?
    Mr. Watt. I ask unanimous consent just to make a 30-second 
    Mr. Chabot. Without objection.
    Mr. Watt [continuing]. On something that Mr. Clegg said. 
Because since Chairman Sensenbrenner and I had throughout this 
process been monitoring the record and trying to craft a bill, 
I don't want it to go unchallenged that somehow we started 
someplace and ended up the same place. That is just absolutely 
not the case. Had this bill been dropped before we started 
these hearings, I think it would have been a substantially 
different bill in a number of respects.
    So anybody who has this notion that this process was 
programmed--and Chairman Sensenbrenner was adamant about it. 
That's why no bill was dropped until after the hearing record 
was developed. That's why we made a particular emphasis with 
the Senate to have them have the benefit of the entire House 
record by having Chairman Sensenbrenner and Ranking Member 
Conyers take it over there and put it into their record. We are 
patently aware of the value of having a record here. And for 
anybody who's thinking that somehow we started with a notion of 
what this bill was going to include and ended with exactly that 
notion is just wrong.
    So I just--I think I just needed to clarify that.
    Mr. Chabot. I thank the gentleman, because I know the 
gentleman has been very involved with many of the negotiations 
that have gone on with us and we appreciate his work and 
cooperation on that.
    If there are no further witnesses or evidence to come 
before this Committee, we are adjourned. But I would mention 
again that we do have a hearing this afternoon at 2 o'clock on 
section 203.
    And no further business, we are adjourned.
    [Whereupon, at 10:54 a.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
in Congress from the State of Michigan, and Member, Subcommittee on the 

    Chairman Chabot, as we come to the end of our hearing schedule, I 
would like to commend you on your commitment to running a fair and open 
hearing process. Your flexibility and cooperation was essential to 
ensuring that all voices were heard as we approached the 
reauthorization of this historic legislation. Your leadership has been 
critical to the success of the process, thus far, and a testament to 
the fact that civil rights need not be a partisan issue.
    On Tuesday, we are introducing H.R. 9, Voting Rights Act 
Reauthorization and Amendments Act, which will renew and strengthen the 
Voting Rights Act for another 25 years. Chief among the expiring 
provisions of the VRA is Section 5, which requires that any change to 
voting rules in covered jurisdictions be submitted to either the U.S. 
Department of Justice or a federal court for ``preclearnace'' before it 
can take effect. Through Section 5, the VRA has prevented thousands of 
discriminatory voting changes from undermining minority voters' 
meaningful access to the ballot.
    Our inquiry in the Act has broken down into two fundamental 
questions: 1) Is there an adequate record of discrimination to justify 
reauthorization of the expiring provisions ? and 2) Are the expiring 
provisions, as interpreted by the courts, still adequate to protect the 
rights of minority voters ? These questions should continue to guide us 
as we examine H.R. 9 itself.
    There is no right more fundamental than the right to vote, but for 
nearly a century, many Americans were denied this fundamental right of 
citizenship. While we applaud the substantial progress which has been 
made in the area of voting rights over the last 40 years, we must 
continue our efforts to protect the rights of every American voter with 
the reauthorization and restoration of the expiring provision of the 
Act. I look forward to the testimony of our witnesses.


Prepared Statement of the Honorable Melvin L. Watt, a Representative in 
Congress from the State of North Carolina, and Member, Subcommittee on 
                            the Constitution

    Thank you, Mr. Chairman. I want to begin by thanking Chairman 
Sensenbrenner for scheduling these hearings on H.R. 9 so that we can 
move forward towards passage of a Voting Rights Act reauthorization 
this Congress. Let me also thank you and Ranking Member Nadler for 
overseeing our compilation of an exhaustive record that fully and 
completely supports the policy choices that we have made with the 
introduction of this bill. Our record consists of an abundance of 
evidence that supports the continuing need for the expiring provisions 
of the Voting Rights Act, and was developed with an acute understanding 
of and attention to the Supreme Court's ``congruence and 
proportionality'' standard that imposes limitations on Congressional 
enforcement powers under the 14th (and likely the 15th ) Amendment(s).
    This morning we focus primarily on the coverage, preclearance, and 
federal observer provisions in the bill. Section 4 of H.R. 9 
effectuates a 25 year extension of these provisions. In addition, 
Section 3 makes changes to the examiner/observer provisions of the 
original bill by, in effect, updating the bill to reflect current 
circumstances. Federal examiners are eliminated, while Federal 
observers are retained and made subject to independent criteria for 
deployment and no longer tied to whether an examiner has been 
certified. Section 5 of H.R. 9 makes additional, necessary changes to 
Section 5 of the original Voting Rights Act, by addressing restrictive 
Supreme Court decisions that misconstrued the original intent of 
Congress. Reno v. Bossier Parish II (2000) and Georgia v. Ashcroft 
(2003) unhinged over 30 years of judicial interpretation and 
administrative implementation of the Voting Rights Act from their 
moorings. Together, these two cases returned back to jurisdictions with 
a history of discrimination the very discretion in implementing voting 
changes that Congress intended to curtail. Without the fix contained in 
H.R. 9, covered jurisdictions--those with a history and ongoing record 
of discrimination precluding the ability to bail-out from coverage--
could enact and enforce, with impunity, voting changes that 
purposefully discriminate or undermine minority voters ability to elect 
candidates who share their values and represent their interests.
    We've always known that not everyone would appreciate the 
conclusions reflected in H.R. 9. Some critics of the bill--one of whom 
appears on this panel (Mr. Clegg)--maintain in one breath that our 
record is one-sided and, yet in another, cite extensive evidence that 
is contained in our record in support of a different approach to 
reauthorization. Academics, litigators, election officials, and voters, 
all no doubt have a variety of views inspired by various motivations on 
the voting rights issues with which we deal in this bill. But it is our 
responsibility, our duty to sift through the record and make a 
determination how best to serve the interests of society based upon 
congressional fact finding.
    The cynical notion--articulated in submitted testimony today--that 
bipartisan, bicameral consensus on a civil rights bill is tantamount to 
racial pandering is not only wrong, it is offensive. A Congress with 
far fewer African Americans, Latinos and Asian Americans passed the 
Voting Rights Act of 1965 because the Constitution had been violated 
for too long. As we sit here today and evaluate the renewal bill, we do 
so because the record demonstrates that the work is incomplete. We have 
deliberated long and hard over months and months of internal debate; we 
have assembled an extraordinary record with competing facts and policy 
perspectives; we have listened to every side of this issue from the 
left, from the right; and we have reached the considered judgment that 
H.R. 9, supported by factual evidence of ongoing discrimination, 
vindicates the Constitutional rights of racial and language minorities 
to participate fully in the electoral process. This bill is not a 
panacea for all of the concerns raised by the record before us. But as 
the Supreme Court noted in the first challenge to the Voting Rights 
Act, in South Carolina v. Katzenbach, ``legislation need not deal with 
all phases of a problem at the same time.'' We must remain vigilant in 
crafting legislative remedies to secure the electoral franchise for all 
Americans. H.R. 9 goes a long way towards satisfying that goal.

  Prepared Statement of the Honorable John Lewis, a Representative in 
                   Congress from the State of Georgia

      Prepared Statement of the Honorable William J. Jefferson, a 
         Representative in Congress from the State of Louisiana

    I would first like to thank Chairman Chabot and Ranking Member 
Nadler for their leadership on this most important issue. It is 
critical that Congress reauthorize the Voting Rights Act and I am 
appreciative of your support of this bill.
    Mr. Chairman, the passage of the Voting Rights Act 41 years ago has 
had a powerful impact on this nation. Prior to its passage scores of 
African-Americans, Latinos, Asians, and Native Americans were excluded 
from the process. Yet now it has resulted in so many minorities of all 
cultures gaining substantive access to the democratic process. In my 
own district, passage of the Voting Rights Act has allowed my 
constituents to elect the first black Mayor of New Orleans in Dutch 
Morial as well as the first black member of Congress from Louisiana 
since Reconstruction.
    However, the gains that have been made due to the Voting Rights Act 
must not overshadow the need to reauthorize the expiring provisions. 
Since Section 5 coverage of the state began, the Civil Rights Division 
has object to discriminatory voting changes in Louisiana 146 times, 96 
of which have occurred since the last extension in 1982. That is to say 
65% of the objections placed against the state have occurred since 
Congress last extended protections to minority voters.
    Of the 96 objections since 1982 no fewer than half a dozen have 
directly concerned attempts to dilute minority influence in Orleans 
Parish. These include attempts by the state legislature to eliminate 
minority opportunity districts in 1982, 1991, and as recently as 2000. 
In 2000, the state's redistricting plan was opposed by the United 
States Department of Justice under Attorney General John Ashcroft as 
the state once again attempted to eliminate minority opportunity 
districts in Orleans Parish despite the fact that the African-American 
population of New Orleans had increased in real numbers and as a 
percentage of the Orleans Parish population.
    According to reports from the National Association for the 
Advancement of Colored People (NAACP), People for the American Way 
(PAFW), and various press reports, students at Prairie View A&M 
University, a largely African-American institution, were erroneously 
told that they were ineligible to vote. This is particularly disturbing 
as I have three Historically Black Colleges in my district.
    Yet this issue goes beyond intimidation and disenfranchisement of 
black voters. The Latino population in the United States continues to 
grow at fast rate we must continue to provide the growing community 
with the resources to participate in the process. To that end, we must 
work to reauthorize provisions in the Voting Rights Act that provide 
these voters with bi-lingual ballots. It is in large part because of 
the important provisions of the Voting Rights Act that over 5,000 
Latinos now hold public office in this country. The demographics of the 
nation are changing and we must continue to change with it. Only then 
will minorities earn true political incorporation. This is why we must 
reauthorize section 203 of the Voting Rights Act providing bi-lingual 
    . The displacement caused by Hurricane Katrina makes it even more 
critical that this bill come to the floor quickly to be voted on, 
passed, and presented for signature. New Orleans has historically taken 
an active role in the struggle for minority voting rights. During the 
Civil War, free blacks there demanded suffrage; their efforts resulted 
in Lincoln's first public call for voting rights for some blacks in the 
final speech of his life. Once these rights were won, New Orleans 
blacks took an active part in politics, leading to the establishment of 
the South's only integrated public school system. In the aftermath of 
Hurricane Katrina, New Orleans finds itself at a turning point again in 
the struggle for voting rights.
    The Supreme Court declared more than a century ago that the equal 
right to vote is fundamental because it is ``preservative of all 
rights.'' Every citizen of New Orleans, spread across 44 states, must 
be able to vote and it is only through the protections afforded to them 
by the Voting Rights Act that this will happen. Without the protection 
of the Voting Rights Act, these proposed changes would have been 
allowed, effectively disenfranchising a large segment of the population 
of the state.
    Reauthorization of Section 5 of the Act, requiring Department of 
Justice preclearance of changes to voting policies and procedures in 
certain jurisdictions, is vital. Section 5 must not be removed or 
weakened. This is of especial importance in areas with a documented 
history of exclusion and discrimination such as Louisiana.
    Reauthorization of the Voting Rights Act of 1965 is essential to 
our Nation because of the continuing efforts of some to deny voting 
rights to segments of our population. While progress has undeniably 
been made the task is far from over. Reauthorizing this act will bring 
us one more critical step forward to fulfilling the dream of over 500 
non-violent protestors who bore the brunt of the backlash on Bloody 
Sunday. It will send a clear message to those who would seek to 
suppress voting rights that their machinations will not be tolerated. 
Reauthorizing this act will send a clear message to multitude of 
minority voters that their voices have been and will continue to be 
heard. Most importantly, it will bring this country one more crucial 
step toward fulfilling the ideals articulated by the Founding Fathers 
and true inclusion for all.

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
  Rights Progress in Alaska, Michigan, New Hampshire, and South Dakota

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                     Rights Progress in California

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                      Rights Progress in Arkansas

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                      Rights Progress in Oklahoma

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                     Rights Progress in Mississippi

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                      Rights Progress in New York

   Appendix to the Statement of Roger Clegg: An Assessment of Voting 
                      Rights Progress in Tennessee

          Prepared Statement of the Honorable J.C. Watts, Jr.

  Prepared Statement of Jan Tyler, former Denver Election Commissioner

    This statement is to convey my opposition to the renewal of Section 
203 and Section 4(f)(4), the language provisions of the Voting Rights 
Act of 1965, as amended.


    My name is Jan Tyler. I was elected twice as a City and County of 
Denver Election Commissioner in l995 and l999. The Commission was 
established in 1904 with the Denver City Charter and is comprised of 
two elected Commissioners and the Clerk and Recorder, who is appointed 
by the Mayor.
    I was certified as a Certified Elections Registration Administrator 
in 2001 through a professional organization, The Election Center, which 
is affiliated with Auburn University. I renewed my certification in 
2004. My career as an election administrator has always been an 
avocation, which I have continued as a volunteer election observer in 
Montenegro, Serbia, Ukraine and most recently last fall a two month 
stay in Kazakhstan.
    For the purposes of understanding opposition to the renewal of the 
VRA, I believe it is essential to respect the professional objectivity 
of the election administrator.

                       MY EXPERIENCE WITH THE VRA

    Justice Department officials first contacted the Denver Election 
Commission in 2002 to inform us that Denver County had been added to 
the list of jurisdictions covered under Sec. 203.
    We were told the Commission had to implement an extensive program 
to print ballots in Spanish, distribute voting materials in Spanish, 
and design outreach programs in Spanish.
    This seemed fundamentally un-American to me. At the time I was a 
member of the National Society of Daughters of the American Revolution, 
and I was familiar with the NSDAR's involvement in the naturalization 
ceremonies for new citizens.
    I thought new citizens were supposed to speak English as a 
requirement of citizenship.
    My own grandfather, a Polish immigrant, naturalized on August 29, 
l918. I completely empathize with the immigrant--before my parents 
changed my name, I was born Jan Zawistowski. This was my identity, and 
I was proud to be born his first grandchild on August 29, 1950, the 
same day my grandfather's naturalization took place many years before.
    But my grandfather would have been appalled if the government 
decided to print his American ballots in Polish, even if l0,000 of his 
closest Polish friends did live in Atlanta.
    Although I am certain the intentions behind the bilingual voting 
assistance requirements of the VRA were good, its effect has been to 
discourage new immigrants from assimilating and learning English. These 
provisions have also imposed significant costs on covered 
jurisdictions, including Denver County. I estimated at the time that 
Spanish assistance could add up to $80,000 to the more than $500,000 it 
costs to conduct an election in Denver County.
    The cost estimates were accurate and about $80,000 has been spent 
every year since 2002 to comply.

                           NO JUDICIAL REVIEW

    The VRA commands that there be no judicial review of coverage 
determinations under Sec. 203, which are made by the U.S. Census.
    This is not good government. Coverage determinations should be 
subject to scrutiny by the courts.
    One of the most significant problems with the way the Census makes 
coverage determinations today has to due with way the Bureau defines 
limited English proficiency (LEP).
    Specifically, Sec. 203 states: ``the term ``limited-English 
proficient'' means unable to speak or understand English adequately 
enough to participate in the electoral process.''
    The Census Bureau is interpreting this definition of LEP to include 
persons who self-identify themselves as speaking English ``not at 
all'', ``not well'', or ``well.'' Those who identify themselves as 
speaking English ``well'' should not be counted as ``limited English 
proficient'' for the purpose of making coverage determinations under 
Sec. 203.
    The Census Bureau's overly broad definition of LEP has resulted in 
many counties being covered under Sec. 203 that should not be.
    I doubt that the truly limited English proficient population of 
Denver County meets the 10,000 or 5% threshold required to trigger 
coverage under the law. But since the Bureau's coverage determinations, 
including the definition of LEP used to make such determinations, 
``shall not be subject to review in any court'' there is no remedy for 
Denver County or other covered jurisdictions.
    I also encountered problems with the DOJ on the enforcement side of 
the Sec. 203 requirements.
    Given my duty as an Election Commissioner to uphold the law, I 
decided to encourage full compliance. But when I asked DOJ officials 
for written and customized instructions for complying, I was told ``We 
do not tell you specifically what to do.'' Although there are some 
general, written guidelines, we were told that ``voter complaints'' 
would be used by DOJ officials to judge whether we were complying with 
the law. As anyone with any election administration experience knows, 
this is a poor way to judge compliance. There are many complaints even 
after the most well run election.
    One DOJ official went so far as to tell me ``we'll know you've 
complied when we see it.''

                            SURNAME ANALYSIS

    The DOJ uses a form of ethnic profiling called ``surname analysis'' 
to identify locations for bilingual polling districts in covered 
jurisdictions. The Justice Department also compels covered 
jurisdictions to conduct voter outreach efforts (e.g. mass mailings) 
targeting limited English proficient voters based on analysis of the 
surnames of voters living in covered jurisdictions.
    This is a highly inaccurate way to target LEP voters. Many people 
with Hispanic or Asian surnames speak English ``very well.'' Women 
whose native language is English, but who marry and take on Hispanic, 
Asian, or surnames of other covered language minority groups, do not 
need bilingual ballots.
    Surname analysis is also insulting to immigrants who have 
naturalized and learned English in order to vote. This is why some 
jurisdictions get furious responses from both Spanish and, of course, 
English speakers who are outraged that they have been singled out just 
because of a Spanish sounding surname.
    The DOJ should be barred from using surname analysis. It should 
also be prohibited from requiring covered jurisdictions to use surname 
analysis for the purpose of implementing Sec. 203. Instead, Census data 
should be used to target only those voters who identify themselves as 
speaking English ``not at all'' or ``not well.''


    Members of the Committee, I care about how we administer our 
elections. There is a difference, and will always be a difference, 
between the perspective of an Election Administration professional, 
whether elected or serving as a career appointee, and those who are 
political activists.
    As an Election Administrator, I urge you to decline to renew 
Section 203 and Section 4(f)(4) of the Voting Rights Act.

     Ana Henderson and Christopher Edley, Jr., ``Voting Rights Act 
   Reauthorization: Research-Based Recommendations to Improve Voting 
 Access,'' Chief Justice Earl Warren Institute on Race, Ethnicity and