49-010
2d Session
109-295
--FANNIE LOU HAMER, ROSA PARKS, CORETTA SCOTT KING, AND CESAR E. CHAVEZ VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006
[To accompany S. 2703]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the bill (S. 2703) to amend the Voting Rights Act of 1965 having considered the same, reports favorably thereon with an amendment and recommends that the bill (as amended) do pass.
| CONTENTS | Page | |
| I. | Purpose of the Voting Rights Act | 2 |
| II. | History of the Bill and Committee Consideration | 2 |
| III. | Section-by-Section Summary of the Bill | 4 |
| IV. | Congressional Budget Office Cost Estimate | 5 |
| V. | Regulatory Impact Evaluation | 7 |
| VI. | History of the Voting Rights Act of 1965 | 7 |
| VII. | Expiring Provisions of the Voting Rights Act of 1965 | 10 |
| VIII. | The House and Senate Records | 10 |
| IX. | Clarifications to the Voting Rights Act of 1965 | 15 |
| X. | Additional Views of Mr. Kyl | 22 |
| XI. | Additional Views of Mr. Cornyn and Mr. Coburn | 25 |
| XII. | Additional Views of Mr. Leahy, Mr. Kennedy, Mr. Biden, Mr. Kohl, Mrs. Feinstein, Mr. Feingold, Mr. Schumer, and Mr. Durbin | 54 |
| XIII. | Changes in Existing Law Made by the Bill, as Reported | 55 |
| XIV. | Appendices | 65 |
I. PURPOSE OF THE VOTING RIGHTS ACT
The Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 437, as amended, 42 U.S.C. Sec. 1973 to 1973bb-1 (2000), was enacted to remedy 95 years of pervasive racial discrimination in voting, which resulted in the almost complete disenfranchisement of minorities in certain areas of the country. The Act is rightly lauded as the crown jewel of our civil rights laws because it has enabled racial minorities to participate in the political life of the nation. We recognize the great strides that have been made in the treatment of racial minorities over the last forty years, but extending the expiring provisions of the Voting Rights Act is still necessary to continue to fulfill its purpose. For these reasons, the Committee reported favorably on, and passed, S. 2703, the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, and Cesar E. Chavez Voting Rights Act Reauthorization and Amendments Act, which extends for twenty-five years certain provisions of the Voting Rights Act of 1965 that are set to expire in 2007, and which amends several provisions of the Act to ensure that it can continue to serve its historic purpose.
II. HISTORY OF THE BILL AND COMMITTEE CONSIDERATION
From October 18, 2005, through March 8, 2006, the Subcommittee on the Constitution of the House Judiciary Committee held ten hearings featuring testimony from forty witnesses. Those hearings gathered evidence concerning voting rights in America and explored the effects of two Supreme Court decisions: Georgia v. Ashcroft, 539 U.S. 461 (2003), and Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (Bossier Parish II).
On April 27, 2006, the Senate Judiciary Committee held a hearing at which members of the House of Representatives submitted the voluminous record it had developed over the previous six months.
On May 3, 2006, the House and Senate introduced identical proposals to renew and amend the Voting Rights Act of 1965 (H.R. 9 and S. 2703).
On May 9, 2006, the Senate Judiciary Committee held a hearing on `An Introduction to the Expiring Provisions of the Voting Rights Act.' The Committee heard testimony from Chandler Davidson, political science professor at Rice University; Richard Hasen, law professor at Loyola Law School; Samuel Issacharoff, law professor at Columbia Law School; Ted Shaw, President of the NAACP Legal Defense and Educational Fund, Inc. (NAACP-LDF); and Laughlin McDonald, Director of the American Civil Liberties Union (ACLU) Voting Rights Project. At each hearing, in addition to their oral testimony at the hearing, witnesses also submitted written testimony and articles they had written on this topic and answered written questions by Committee members.
On May 10, 2006, the Senate Judiciary Committee held a hearing on `Modern Enforcement of the Voting Rights Act.' The Committee heard testimony from Gregory Coleman, former Solicitor General of Texas; Frank Strickland, attorney and member of the Fulton County Board of Registration and Elections in Georgia; Robert McDuff, a civil rights litigator in Mississippi; Juan Cartegena, General Counsel, Community Service Society in New York City; and Natalie Landreth, attorney for the Native American Rights Fund in Anchorage, Alaska.
On May 16, 2006, the Senate Judiciary Committee held a hearing on `The Continued Need for Section 5.' The Committee heard testimony from the following witnesses: Richard Pildes, Professor of Law at New York University; Ronald Keith Gaddie, Professor of Political Science at the University of Oklahoma; Pamela Karlan, Professor of Law at Stanford University; Anita Earls, Director of the Center for Civil Rights at the University of North Carolina and former Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice; and Ted Arrington, Professor of Political Science at the University of North Carolina and a former Republican elected official in North Carolina.
On May 17, 2006, the Senate Judiciary Committee held a hearing on `The Benefits and Costs of Section 5.' The Committee heard testimony from the following witnesses: Abigail Thernstrom, Senior Fellow at the Manhattan Institute and Vice-Chair of the U.S. Commission on Civil Rights; Nathaniel Persily, Professor of Law and Political Science at the University of Pennsylvania; Fred Gray, Alabama civil rights attorney and former counsel for Rosa Parks and Martin Luther King, Jr.; Drew Days, Professor of Law at Yale University, former Assistant Attorney General for Civil Rights, and former Solicitor General of the United States; and Armand Derfner, a voting rights attorney in South Carolina.
On June 13, 2006, the Senate Judiciary Committee held a hearing on `The Continuing Need for Section 203's Provisions for Limited English Proficient Voters.' The Committee heard testimony from John Trasvin.AE6a, Interim President and General Counsel of the Mexican American Legal Defense and Education Fund (MALDEF); Mauro Mujica, Chairman and CEO of U.S. English; Peter Kirsanow, Commissioner on the U.S. Commission on Civil Rights and member of the National Labor Relations Board; Margaret Fung, Executive Director of the Asian-American Legal Defense and Education Fund; Deborah Wright, Los Angeles County Executive Liaison Officer and Acting Assistant Registrar for the Election Services Bureau; and Linda Chavez, Chairman of the Center for Equal Opportunity and President of One Nation Indivisible.
On June 21, the Subcommittee on the Constitution, Civil rights and Property Rights of the Senate Judiciary Committee held a hearing on `Reauthorization of the Voting Rights Act: Policy Perspectives and Views from the Field.' The Subcommittee heard testimony from Debo Adegbile, Associate Director of Litigation of the NAACP Legal Defense and Educational Fund, Inc.; Gerald A. Reynolds, Chairman of the U.S. Commission on Civil Rights and Assistant General Counsel of Kansas City Power & Light Co.; David Canon, Professor in the Department of Political Science at the University of Wisconsin; John J. Park, Jr., an Assistant Attorney General in the Office of the Attorney General of Alabama; Donald M. Wright, General Counsel of the North Carolina State Board of Elections; and Carol Swain, Professor of Political Science and Professor of Law at Vanderbilt University.
On July 10, 2006, the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Committee held a testimony-only hearing on `The Continuing Need for Federal Examiners and Observers to Ensure Electoral Integrity.' The Subcommittee received testimony from Mark F. (Thor) Hearne, II, National Counsel to the American Center for Voting Rights--Legislative Fund; Kay Coles James, former Director of the U.S. Office of Personnel Management; Constance Slaughter-Harvey, an attorney in private practice in Forest, Mississippi, and former Mississippi Assistant Secretary of State for Elections and General Counsel; Dr. James Thomas Tucker, voting rights consultant to the National Association of Latino Elected and Appointed Officials; and Alfred Yazzie, Navajo Language Consultant for the U.S. Department of Justice and Certified Navajo Interpreter.
On July 13, 2006, the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Judiciary Committee held a hearing on `Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options after LULAC v. Perry.' The Subcommittee heard testimony from Roger Clegg, President and General Counsel of the Center for Equal Opportunity in Sterling, Virginia; Professor Sherrilyn Ifill, professor at the University of Maryland Law School in Baltimore and former Assistant Counsel at the NAACP Legal Defense and Educational Fund, Inc.; Nina Perales, Southwest Regional Counsel for the Mexican American Legal Defense and Educational Fund (MALDEF); Michael Carvin, a partner with the law firm of Jones Day, specializing in constitutional, appellate, civil rights, and civil litigation against the Federal Government; Professor Joaquin Avila, Assistant Professor of Law at Seattle University School of Law in Seattle, Washington; and Abigail Thernstrom, Senior Fellow at the Manhattan Institute and Vice Chair of the U.S. Commission on Civil Rights.
On July 19, 2006, the Senate Judiciary Committee met in open session to consider the bill S. 2703. A technical amendment was offered by Mr. Leahy to provide that the short title of the bill, S. 2703, would be expanded to include the name of Cesar E. Chavez. The technical amendment was agreed to by voice vote. An amendment was offered by Dr. Coburn to provide that persons who state that they speak English `well' in response to the Census Bureau's inquiry would not be considered limited-English proficient under section 203(b)(3) of the Voting Rights Act. The amendment was defeated by voice vote. The motion to report favorably the bill, S. 2703, was agreed by a roll call vote of 18-0.
III. SECTION-BY-SECTION SUMMARY OF THE BILL
Section 1
Section 1, as amended, provides that the Act may be cited as the `Fannie Lou Hamer, Rosa Parks, Coretta Scott King, and Cesar E. Chavez Voting Rights Act Reauthorization and Amendments Act of 2006.'
Section 2
Section 2 explains that the `purpose of this Act is to ensure that the right of all citizens to vote, including the right to register to vote and cast meaningful votes, is preserved and protected as guaranteed by the Constitution.' Section 2 sets forth the Senate's findings that `[s]ignificant progress has been made,' but `vestiges of discrimination in voting continue to exist.'
Section 3
Section 3 eliminates the provisions for federal election examiners, who, in the past, were used to ensure that voters were not excluded from voter registration lists. These examiners have not been used for that purpose in over 20 years. Section 3 also eliminates the provisions for terminating federal examiner certifications. In the remaining provisions of the Act, all references to federal examiners have been replaced with references to federal observers.
Section 3 also alters one of the standards for certifying jurisdictions for federal observer coverage. Currently, the Attorney General may appoint federal observers to monitor polling places in covered jurisdictions if the Attorney General has received written complaints from at least twenty residents who have been denied the right to vote by the government. Section 3 amends the Voting Rights Act to allow the Attorney General to do so provided that at least two `residents, elected officials, or civic participation organizations' have complained in writing that voting rights violations `are likely to occur.'
Section 4
Section 4 provides for a 25-year renewal of the coverage formula stated in section 4 of the Voting Rights Act of 1965. It also requires Congress to reconsider these provisions in 15 years.
Section 5
Section 5 responds to, in part, two Supreme Court decisions that interpreted the criteria for preclearance of voting changes under Section 5 of the Voting Rights Act of 1965: Reno v. Bossier Parish School Board, 528 U.S. 320 (2000) (Bossier Parish II), and Georgia v. Ashcroft, 539 U.S. 461 (2003).
Section 6
Section 6 amends the Voting Rights Act of 1965 to allow certain prevailing plaintiffs to collect `reasonable expert fees, and other reasonable litigation expenses.'
Section 7
Section 7 extends the requirements of section 203 of the Voting Rights Act of 1965 through 2032.
Section 8
Section 8 allows use of American Community Survey census data under the Act.
IV. CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
The Committee sets forth, with respect to the bill, S. 2703, the following estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974:
Hon. ARLEN SPECTER,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 2703, the Fannie Lou Hamer, Rosa Parks, Coretta Scott King, and Cesar E. Chavez Voting Rights Act Reauthorization and Amendments Act of 2006.
If you wish further details on this estimate, we will be pleased to provide them. The CBO staff contact is Matthew Pickford.
Sincerely,
Donald B. Marron,
Acting Director.
Enclosure.
Summary: S. 2703 would reauthorize and amend the Voting Rights Act of 1965. Major provisions of the legislation would extend certain expiring provisions of the act for 25 years, expand the use of federal observers at polling sites, and authorize the use of the American Community Survey to identify areas that may need bilingual voting assistance.
CBO estimates that implementing S. 2703 would cost $1 million in fiscal year 2007 and $15 million over the 2007-2011 period, subject to the availability of appropriated funds. Enacting the bill would have no impact on direct spending or revenues.
Section 4 of the Unfunded Mandates Reform Act (UMRA) excludes from the application of the act any legislative provisions that enforce constitutional rights of individuals. CBO has determined that S. 2703 would fall within that exclusion because it would protect the voting rights of minorities and those with limited proficiency in English. Therefore, CBO has not reviewed the bill for mandates.
Estimated cost to the Federal Government: The estimated budgetary impact of S. 2703 is shown in the following table. The costs of this legislation fall within budget function 800 (general government).
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By fiscal year, in millions of dollars--
2007 2008 2009 2010 2011
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SPENDING SUBJECT TO APPROPRIATION
OPM spending under current law for voting rights program:
Estimated authorization level 2 0 0 0 0
Estimated outlays 2 0 0 0 0
Proposed changes:
Estimated authorization level 1 4 3 3 3
Estimated outlays 1 4 3 3 3
OPM spending under S. 2703 for voting rights program:
Estimated authorization level 3 4 3 3 3
Estimated outlays 3 4 3 3 3
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Basis of estimate: For this estimate, CBO assumes that S. 2703 will be enacted near the end of fiscal year 2006, that the necessary amounts will be appropriated over the 2007-2011 period, and that spending will follow historical spending patterns for the Office of Personnel Management (OPM).
The legislation would extend for 25 years certain expiring provisions of the Voting Rights Act. Under current law, the Department of Justice (DOJ) certifies the appointment of federal observers to work at polling sites when it has received 20 or more written complaints from residents regarding voting rights violations. OPM, through its Voting Rights Program, works closely with DOJ to assign voting rights observers to locations designated by the department. OPM currently has about 1,000 intermittent employees who serve as neutral monitors at particular polling sites on election days. Since 1966, OPM has deployed 26,000 observers to 22 states.
The legislation would amend current law to authorize the Attorney General to assign federal observers without using the certification process to election sites if he or she has had a reasonable belief that violations of the 14th or 15th amendment have occurred or will occur at a polling site. Based on information from OPM and the current cost of operating the observer program, CBO estimates that the Voting Rights Program would spend about $4 million in general election years and about $3 million in other years.
Intergovernmental and private-sector impact: Section 4 of UMRA excludes from the application of the act any legislative provisions that enforce constitutional rights of individuals. CBO has determined that S. 2703 would fall within that exclusion because it would protect the voting rights of minorities and those with limited proficiency in English. Therefore, CBO has not reviewed the bill for mandates.
Previous CBO estimate: On May 17, 2006, CBO transmitted a cost estimate for H.R. 9, the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006, as ordered reported by the House Committee on the Judiciary on May 10, 2006. The two versions of the bill are similar and CBO's cost estimates for these bills are identical.
Estimate prepared by: Federal Costs: Matthew Pickford; impact on state, local, and tribal governments: Sarah Puro; impact on the private-sector: Paige Piper/Bach.
Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.
V. REGULATORY IMPACT EVALUATION
In compliance with rule XXVI of the Standing Rules of the Senate, the Committee finds that no significant regulatory impact will result from the enactment of S. 2703.
VI. HISTORY OF THE VOTING RIGHTS ACT OF 1965
In 1965, Congress at last began to fulfill our Nation's promise of full participation in the democratic process for all Americans by passing the Voting Rights Act. That Act created permanent, nationwide protection for every American citizen, protections that remain vital to voters today. It also created certain temporary provisions, which were reauthorized and expanded in 1970, 1
[Footnote] 1975, 2
[Footnote] 1982, 3
[Footnote] and (with respect to language assistance) 1992.
[Footnote 1: Voting Rights Act Amendments of 1970, Pub. L. 91-285, 84 Stat. 314.]
[Footnote 2: Pub. L. 94-73, 89 Stat. 402 (1975).]
[Footnote 3: Voting Rights Act Amendments of 1982, Pub. L. 97-205, 96 Stat. 134.]
Prior to the enactment of the Voting Rights Act, African-Americans and other minorities were prevented from exercising their constitutional rights through violence, intimidation, and systematic and deliberate State action.
Tragically, there are too many examples of this overt hatred and discrimination to detail them all in this record. But understanding the environment of bigotry that led to the Act's passage helps to understand its applicability today and in the future.
The effort to give all voters full access to the ballot box was thwarted systematically and violently. In 1961, the Student Non-violent Coordinating Committee began a black voter registration drive in McComb, Mississippi, led by `Robert Moses, a black field secretary who had quit his job as a private-school mathematics teacher in New York to work full time on voter registration in the South.' Abigail Thernstrom, Whose Vote Counts? 14 (Harvard University Press, 1987). `Moses was attacked and beaten by a cousin of the sheriff; a co-worker was ordered out of a registrar's office at gunpoint and then hit with a pistol; a black sympathizer was murdered by a state representative; another black who asked for Justice Department protection to testify at the inquest was beaten (and three years later killed); a white activist's eye was gouged out; and, finally, twelve SNCC workers and local supporters were fined and sentenced to substantial terms in jail.' Id. And those were just a few of many incidents.
The `usual' legislation, however, had failed to break the usual pattern of black disfranchisement. Voting rights litigators in the South in the early 1960s had learned several lessons. The first concerned the literacy test. `No matter from what direction one looks at it,' V.O. Key had written in 1949, `the Southern literacy test is a fraud and nothing more.' It was no less a fraud in 1965. In the 1960s, southern registrars were observed testing black applicants on such matters as the number of bubbles in a soap bar, the news contained in a copy of the Peking Daily, the meaning of obscure passages in state constitutions, and the definition of such terms as habeas corpus. By contrast, even illiterate whites were being registered. Booker T. Washington had believed that `brains, property, and character' would `settle the question of civil rights,' but eighty years after the founding of Tuskegee Institute blacks with brains, property, and character in the city of Tuskegee still found themselves unable to demonstrate their literacy. `If a fella makes a mistake on his questionnaire, I'm not gonna discriminate in his favor just because he's got a Ph.D.,' the chairman of the Board of Registrars self-righteously maintained. Id. at 15.
`The long struggle for black voting rights during the Twentieth Century crested on the Edmund Pettus Bridge in Selma, when peaceful demonstrators were savagely attacked by law enforcement officers on March 7, 1965.' Testimony of Chandler Davidson, An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization, Hrg. before the Senate Judiciary Committee (May 9, 2006). This `Bloody Sunday, was filmed by news photographers and immediately telecast around the world. It shocked the conscience of America, and at the behest of President Lyndon Johnson, a bipartisan Congress passed the Voting Rights Act a few months later.' Id.
The Voting Rights Act of 1965 was designed to `foster our transformation to a society that is no longer fixated on race,' to 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.' Georgia v. Ashcroft, 539 U.S. 461, 490 (2003) (quoting Rep. John Lewis). The Act includes a permanent provision, section 2, that applies to every voter in America. `As amended by Congress in 1982, it prohibits any voting qualification or practice that results in denial or abridgement of voting rights on the basis of a citizen's race, color, or membership in one of four language-minority groups: speakers of Spanish or of Native American, Native Alaskan, and Asian languages.' Testimony of Chandler Davidson, supra. The Act also includes several temporary provisions that `Congress renewed and expanded * * * in 1970, 1975, and 1982, the last time for 25 years.' Id.
Congress's enactment of the Voting Rights Act presaged an immediate and breathtaking transformation. The Voting Rights Act of 1965 had a concrete impact on individuals' lives. `Maynard Jackson's mother (in her middle age) was the first black in Atlanta to obtain a library card; in 1973 her son was elected mayor. In Selma, Alabama, in 1965, Andrew Young placed his life in jeopardy on behalf of black voting rights; only seven years later he was the first black congressman elected from the Deep South since Reconstruction.' Abigail Thernstrom, Whose Vote Counts? 1 (Harvard University Press, 1987).
The Voting Rights Act of 1965 had a concrete impact on Americans' attitudes and beliefs. In 1975, only 20% of African-Americans said they had good friends who were white; by 2003, the figure had jumped to 88%. And the proportion of whites with good friends who were African American soared from 9% to 82%. Testimony of Abigail Thernstrom, Understanding the Benefits and Costs of Section 5 Pre-Clearance, Hrg. before the Senate Judiciary Committee (May 17, 2006).
Similarly, the Voting Rights Act had a concrete impact on America's political landscape. The covered jurisdictions that once sponsored violence against minority voters now elect hundreds of minorities to elected office. In Georgia, the voting age population is 27.2% African-American, and African-Americans comprise 30.7% of its delegation to the U.S. House of Representatives and 26.5% of the officials elected statewide. U.S. Census Bureau Report on 2004 Election; The Bullock-Gaddie Voting Rights Studies: An Analysis of Section 5 of the Voting Rights Act (2006). Black candidates in Mississippi have achieved similar success. The State's voting age population is 34.1% African-American, and 29.5% of its representatives in the State House and 25% of its delegation to the U.S. House of Representatives are African-American. Id. As of 2003, Texas had elected 2,000 Latinos to office; two years before, California voters had sent 757 Latinos to office. Id. America has had two African-American Secretaries of State, Colin Powell and Condoleezza Rice--both of whom have been touted as formidable candidates for President of the United States, and two African-American Supreme Court Justices, legendary civil rights lawyer Thurgood Marshall, and former head of the Equal Employment Opportunity Commission Clarence Thomas.
Congress is once again confronted with the expiration of several of the Voting Rights Act's temporary provisions. The five provisions of the Voting Rights Act set to expire in June and August of 2007 are sections 4, 5, 6, 8, and 203. 4
[Footnote]
[Footnote 4: Sections 7 and 9, which provide additional procedures for examiners appointed under section 6, expire together with section 6.]
VII. EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT OF 1965
Five provisions of the Voting Rights Act are set to expire in June and August of 2007.
Section 4(b) of the Act sets out a formula to identify discriminatory, or `covered,' jurisdictions. 42 U.S.C. Sec. 1973b(b). In 1965, a political subdivision was covered under section 4(b) if (1) it used a literacy test or other device as a condition for voter registration on November 1, 1964, and (2) either less than 50% of eligible persons were registered to vote on that date or less than 50% of such persons voted in the Presidential election of that year. Id. Congress has since added similar triggers using data from 1968 and 1972. Id. Congress has also added jurisdictions with a significant population of non-English speakers. 42 U.S.C. 1973b(f).
Section 5 provides that if a jurisdiction is covered under section 4(b), then all voting laws in that jurisdiction must be pre-approved either by the Justice Department or the federal district court for the District of Columbia, with the burden of proof on the jurisdiction to show an absence of discriminatory purpose or effect. 42 U.S.C. Sec. 1973c.
Section 203 requires covered jurisdictions to provide bilingual elections for American Indians, Asian Americans, Alaskan Natives, or persons of Spanish heritage who are not proficient in English.
Sections 6 and 8 ensure that minority voters may register to vote and cast their ballots. Section 6 provides for federal election examiners to prepare and maintain lists of eligible voters in covered jurisdictions. Section 8 provides for federal election observers to ensure that all voters are permitted to cast their ballots and that all ballots are properly counted.
VIII. THE HOUSE AND SENATE RECORDS
The Senate Judiciary Committee held nine hearings regarding the bill, S. 2703, at which the Committee received testimony from 46 witnesses. In addition, the House Judiciary Committee held 12 hearings featuring 46 witnesses. The total record consists of over 15,000 pages. The House and Senate owe thanks to the many groups dedicated to the civil rights of Americans which, over the past two years, have collected and analyzed evidence regarding voting rights in America.
Just as it did for each previous enactment and reauthorization of the Voting Rights Act in 1965, 1970, 1975, and 1982, the Senate collected data consisting of statistics, findings by courts and the Justice Department, and first-hand accounts of discrimination.
A. STATISTICAL EVIDENCE
1. Minority Registration and Turnout
In 1965, there was significant evidence that black registration was dramatically lower than white registration, and that this significant difference was explained primarily by the purposeful attempts to disenfranchise black citizens. Indeed, in some states, the gap was 50 percentage points. In Alabama, black registration was just 18.5% and in Mississippi, was a dismal 6.4%. Voting Rights Legislation, Sen. Rep. 89-162, at 44 (1965).
Due to the Voting Rights Act of 1965, minorities in covered jurisdictions have made great strides over time. Indeed, presently in seven of the covered States, African-Americans are registered at a rate higher than the national average. Moreover, in California, Georgia, Mississippi, North Carolina, and Texas, black registration and turnout in the 2004 election (the most recent Presidential election) was higher than that for whites. In Louisiana and South Carolina, African-American registration was 4 percentage points lower than that for whites--a rate identical to the national average. Virginia, however, remains an outlier: in the 2004 election, black registration was 7 percentage points lower than the national average, black registration was 11 percentage points lower than white registration, and black turnout was 13 percentage points lower than white turnout. There is some reason to believe that without the Voting Rights Act's deterrent effect on potential misconduct, these rates might be considerably worse.
In the 2004 election, nationwide, Latinos registered and turned out at rates significantly lower than white voters in the 2004 election--roughly 30 percentage points lower. In Texas and California, the gap was slightly smaller--26 percentage points in each State.
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State 2004 Registration 2004 Turnout
Minority White Minority White
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Alabama Black: 72.9% 73.8% Black: 63.9% 62.2%
Alaska n/a n/a Native: 41.4% Non-Native: 68.4%
Arizona Black: 55.3% 61.4% Black: 45.6% 55.8%
Latino: 30.5% Latino: 25.5%
California Black: 67.9% 56.4% Black: 61.3% 51.3%
Latino: 30.2% Latino: 25.6%
Florida Black: 52.6% 64.7% Black: 44.5% 58.4%
Latino: 38.2% Latino: 34.0%
Georgia Black: 64.2% 63.5% Black: 54.4% 53.6%
Louisiana Black: 71.1% 75.1% Black: 62.1% 64.0%
Mississippi Black: 76.1% 72.3% Black: 66.8% 58.9%
North Carolina Black: 70.4% 69.4% Black: 63.1% 58.1%
South Carolina Black: 71.1% 74.4% Black: 59.5% 63.4%
Texas Black: 68.4% 61.5% Black: 55.8% 50.6%
Latino: 41.5% Latino: 29.3%
Virginia Black: 57.4% 68.2% Black: 49.6% 63.0%
Nationwide Black: 64.3% 67.9% Black: 56.1% 60.3%
Latino: 34.3% Latino: 28.0%
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2. Minority Elected Officials
For years, States had created unconstitutional barriers for minority candidates resulting in few minorities serving in elected office. In 1964, for example, there were only approximately 300 African-Americans in public office, including just three in the United States Congress. Few, if any, black elected officials were elected anywhere in the South. While the Constitution `does not require proportional representation as an imperative of political organization,' City of Mobile v. Bolden, 446 U.S. 55, 75-76 (1980), and the Voting Rights Act itself specifically rejects a requirement of proportional representation, both stand for the elimination of purposeful obstacles to minorities holding office. The Nation has made great progress in eliminating such obstacles--even if the work of establishing civil rights for all is not yet complete. Much of that progress is due to the Voting Rights Act.
According to data made available to the Senate, today there are more than 9,100 black elected officials, including 43 members of the United States Congress, the largest number ever. Id. at 2. ACLU, Promises to Keep: The Impact of the Voting Rights Act in 2006 (March 2006). `The Act has also opened the political process for many of the approximately 6,000 Latino public officials who have been elected and appointed nationwide,' including 263 at the state or federal level, 27 of whom serve in Congress. Id. Indeed in Georgia, minorities are elected at rates proportionate to or higher than their numbers. While Georgia's voting age population is 27.2% African-American, 30.7% of its delegation to the U.S. House of Representatives and 26.5% of the officials elected statewide are African-American. Black candidates in Mississippi have achieved similar success. The State's voting age population is 34.1% African-American, and 29.5% of its representatives in the State House and 25% of its delegation to the U.S. House of Representatives are African-American.
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State Citizen Minority Voting Age Population(2000 Census) Minority Percentage in State Senate(2005) Minority Percentage in State House(2005) Number Minority Officials(2001) Minority Percentage in U.S. House Delegation(2006) Minority Percentage in U.S. Senate Delegation(2006)
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Alabama Black: 24.5% 22.86% 25.71% 756 14.3% 0%
Alaska Black: 3.0% Black: 5.0% Black: 2.5% n/a 0% 0%
Native: 25.0% Native: 20.0%
Arizona Hispanic of any race: 17.9% Latino: 16.7% (2003) Latino: 15.0% (2003) Latino: 268 (2000) Latino: 25% 0%
California Hispanic of any race: 21.4% 22.5% 22.5% 757 (as of 2000) Latino: 11.3% 0%
Florida Black: 13.0% Black: 7.5% Black: 13.3% Black: 243 Black: 12% Latino: 50%
Hispanic of any race: 12.6% Latino: 15.0% Latino: 9.2% Latino: 89 Latino: 12%
Georgia Black: 27.2% 19.6% 21.7% 611 30.7% 0%
Louisiana Black: 30.0% 23.1% 21.9% 705 14.3% 0%
Mississippi Black: 34.1% 21.2% 29.5% 897 25% 0%
North Carolina Black: 20.5% 14.0% 15.8% 491 7.7% 0%
South Carolina Black: 27.8% 17.4% 20.1% 534 16.7% 0%
Texas Black: 11.6% Black: 6.5% Black: 9.3% Black: 460 Black: 9.4% 0%
Hispanic of any race: 26.5% Latino: 19.4% Latino: 18.0% Latino: 2,000 (as of 2003) Latino: 15.6%
Virginia Black: 18.4% 12.5% 11.0% 246 9.1% 0%
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B. COURT VERDICTS AND DOJ ENFORCEMENT
In 1965, the Congress relied upon findings by federal courts and the Justice Department that the covered States were engaged in a pattern of unconstitutional behavior. South Carolina v. Katzenbach, 383 U.S. 301, 329-30 & nn.38, 39 (1966). For example, the 1965 Senate Report observed that Alabama, Louisiana, and Mississippi had lost every voting discrimination suit brought against them, and in the previous 8 years each State had eight or nine courts find them guilty of violating the Constitution. Voting Rights Legislation, Sen. Rep. No. 89-162, at 9-10 (1965).
1. Court Verdicts
The current record discusses hundreds of cases alleging voting rights violations. Since 1982, six published cases have ended in a court ruling or a consent decree finding that one of the 880 covered jurisdictions had committed unconstitutional discrimination against minority voters. The same number of cases ended in a finding that the covered jurisdictions had committed unconstitutional discrimination against white voters. During that same time period, six cases have found that a non-covered jurisdiction committed unconstitutional discrimination against minority voters. See Appendix I for full list.
Examining Voting Rights Act cases also is instructive. Since 1982, 39 court cases have ended with a finding that one of the 880 covered jurisdictions had violated section 2 of the Voting Rights Act--the permanent provision of the Voting Rights Act that prohibits discrimination nationwide. During that same time period, 40 court cases have ended with a finding that one of the non-covered jurisdictions had violated section 2. See Appendix II for full list. Plainly, the Voting Rights Act has done much to achieve its original aims.
2. Department of Justice Enforcement Efforts
The record also indicates that the Justice Department has issued 754 objection letters since 1982:
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Year Number of submissions Number of objection letters Percent of submissions receiving objection letter (percent)
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1982 2848 66 2.32
1983 3203 52 1.62
1984 3975 49 1.23
1985 3847 37 0.96
1986 4807 41 0.85
1987 4478 29 0.65
1988 5155 39 0.76
1989 3920 30 0.77
1990 4809 37 0.77
1991 4592 75 1.63
1992 5307 77 1.45
1993 4421 69 1.56
1994 4661 61 1.31
1995 3999 19 0.48
1996 4729 7 0.15
1997 4047 8 0.20
1998 4021 8 0.20
1999 4012 5 0.12
2000 4638 4 0.09
2001 4222 7 0.17
2002 5910 21 0.36
2003 4628 8 0.17
2004 5211 3 0.06
2005 4734 1 0.002
2006 4094 1 0.002
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It is important to note, however, that many of the objection letters included in the above chart were the result of the Justice Department's application of a standard subsequently struck down by the Supreme Court as unconstitutional. In the 1980s and 1990s, the Justice Department required jurisdictions to include `the maximum number of majority-minority districts that it was possible to create. The Supreme Court ruled that this policy amounted to unconstitutional racial gerrymandering and struck it down. Miller v. Johnson, 515 U.S. 900, 921 (1995); see also Bush v. Vera, 517 U.S. 952, 958-59 (1996); Hunt v. Cromartie, 526 U.S. 541 (1999). In including in the chart objection letters that were subsequently found unconstitutional, we do not mean to endorse the government's earlier position that was struck down.
3. First-Hand Accounts of Voting Discrimination
Most of the record adduced in the House and Senate Judiciary Committees is devoted to first-person accounts of alleged discrimination. Such accounts can be significant because they demonstrate the real impact of any ongoing discrimination.
In 1991, Mississippi legislators rejected proposed House and Senate redistricting plans that would have given African-American voters greater opportunity to elect representatives of their choice, referring to one such alternative on the House floor as the `black plan' and privately as `the n- plan.' DOJ objected, concluding that a racially discriminatory purpose was at play. In the 1992 elections, the cured redistricting plans boosted the percentage of African-American representatives in the legislature to an all time high: 27% of the House and 19% of the Senate (up from 13% and 4%, respectively, in a state where 33% of the voting-age population is African-American). Robert McDuff, Voting Rights in Mississippi: 1982-2006, RenewTheVRA.org at 9-10.
Additionally, a witness claimed that `in North Carolina in Alamance County, a sheriff took it upon himself to get a sample list of Latino voters and then announce . . . I'm going to go door to door knocking on people's houses and ask--and see proof of citizenship.' Leslie Lobos, Testimony at Nat'l Comm'n on VRA Southern Reg'l Hrg., House hrg. 201 (Oct. 18, 2005). These types of anecdotes, and the others in the record, demonstrate that the type of behavior that may warrant oversight by federal officials. If individuals deny minorities access to the ballot box, equal justice is denied.
Despite the numerous examples of continued discrimination, some of the testimony gathered indicates that certain States have made great progress under the Voting Rights Act. For example, a witness recounted that `[d]uring the last redistricting cycle, the Alaska Redistricting Board took special care to preserve existing `Native Districts'--districts which provided Native voters the opportunity to elect the candidates of their choice.' Nat'l Comm'n on VRA Report, at 57. One Arizona voting rights attorney, who had represented voters for four decades, observed that `Arizona was added in 1975 because of an amendment that Congress had adopted that said a voting test included the language in which five percent of the people, other than English, five percent of the people spoke. To wit, Spanish. And in a state where more than 50 percent of those who were registered to vote--were not registered to vote. Arizona was such a state, in 1975. But Arizona is not such a state today.' Paul Eckstein, Testimony at Nat'l Comm'n on VRA Southwestern Reg'l Hrg., House hrg. 291 (Oct. 18, 2005). Without the Voting Rights Act, it is difficult to know whether such progress would be possible.
The sheer bulk of the record showing both continued problems and significant improvements--nearly 15,000 pages--compels us to summarize these first-hand accounts of discrimination. Accordingly, we attach Appendix III, a comprehensive list of every account of discrimination articulated in the House record and the Senate record available at the time of this writing (several Senate witnesses had not responded as of this writing).
IX. CLARIFICATIONS TO THE VOTING RIGHTS ACT OF 1965
Section 5 of the legislation amends the Voting Rights Act by abrogating, in part, two recent Supreme Court decisions: Georgia v. Ashcroft, 539 U.S. 461 (2003), and Reno v. Bossier Parish Sch. Bd., 528 U.S. 320 (2000) (`Bossier Parish II'). The changes work together and are designed to protect minorities from purposeful, unconstitutional discrimination and to eliminate potential obstacles to minority representation in elected bodies. With regard to redistricting plans, they protect naturally occurring districts that have a clear majority of minority voters.
A. PROCESS
When the Voting Rights Act was first enacted in 1965, and for each reauthorization, consideration was initiated in the House. This Congress followed the same practice. From October 18, 2005, through March 8, 2006, the Subcommittee on the Constitution of the House Judiciary Committee held ten hearings featuring testimony from forty witnesses. At those hearings, the House gathered extensive factual evidence and considered proposals to amend section 5 of the Voting Rights Act to address Bossier Parish II and Georgia v. Ashcroft.
The House and Senate introduced identical versions of the Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization Act on May 3, 2006. Because the Senate had not yet held substantive hearings on the Senate bill, S. 2703--other than a hearing on April 27, 2006, at which members of the House of Representatives submitted the record that the House had developed--we relied heavily upon the House's examination of the proposed language in section 5. We found particularly informative the testimony from witnesses called to explain the meaning of and context for the new provisions.
In the course of our consideration, concerns were raised. The Senate Committee on the Judiciary responded by convening hearings in which we further investigated issues implicated by the amendments in section 5 of the bill. The Committee heard from several witnesses who helpfully commented on the amendments and assured us that the language reflected our intent.
B. `ANY DISCRIMINATORY PURPOSE'
The Supreme Court's decision in Bossier Parish II has created a strange loophole in the law: it is possible that the Justice Department or federal court could be required to approve an unconstitutional voting practice `taken with the purpose of racial discrimination.' Testimony of Nina Perales, Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options after LULAC v. Perry, Hrg. before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Senate Judiciary Committee (July 13, 2006). `[A]fter Bossier Parish II, the Supreme Court has directed preclearance authorities to permit changes that have an unconstitutional, racially discriminatory purpose as long as the purpose is simply to perpetuate unconstitutional conditions and not to make them actually worse.' Pamela S. Karlan, Responses to Written Questions from Sen. Kennedy (submitted for May 16, 2006 hearing). The federal government should not be giving its seal of approval to practices that violate the Constitution. Under this amendment, which forbids voting changes motivated by `any discriminatory purpose,' it will not do so.
During the hearings, witnesses echoed the explanation provided by Pamela S. Karlan that `[t]he amendment of section 5 to overturn the Supreme Court's interpretation in Bossier II . . . only forbids states from making changes that would themselves violate the Fourteenth and Fifteenth Amendments.' Testimony of Pamela S. Karlan, The Continuing Need for Section 5 Pre-Clearance, Hrg. before the Senate Judiciary Committee (May 16, 2006) (emphasis added); accord Juan Catagena, Responses to Written Questions from Sen. Schumer (submitted for May 10, 2006 hearing). They testified that the language encompasses voting practices that are `taken with the purpose of racial discrimination,' that are `intentionally discriminatory,' and that are `purposefully taken . . . to lock out racial and language minorities from political power.' Testimony of Perales, supra; Anita Earls, Reponses to Written Questions from Sen. Cornyn (submitted for May 16, 2006 hearing); Responses of Catagena, supra.
The language of the bill, `discriminatory purpose,' is clear on its face. Voting practices adopted with a `discriminatory purpose . . . do, of course, violate the Constitution.' Testimony of Pamela S. Karlan, supra. This is familiar language. It is the language that the Supreme Court uses in defining unconstitutional behavior under the Fourteenth and Fifteenth Amendments. It is the language of cases such as City of Mobile v. Bolden, 446 U.S. 55 (1980), and Washington v. Davis, 426 U.S. 229 (1976).
The question of whether `any discriminatory purpose' provided protections equal to, or beyond, the Constitution was fundamental at the hearings. Several witnesses had raised concerns that expanding section 5 of the Voting Rights Act might render section 5 unconstitutionally broad. Testimony of Michael Carvin, Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options after LULAC v. Perry, Hrg. before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Senate Judiciary Committee (July 13, 2006); Testimony of Abigail Thernstrom, Renewing the Temporary Provisions of the Voting Rights Act: Legislative Options after LULAC v. Perry, Hrg. before the Subcommittee on the Constitution, Civil Rights, and Property Rights of the Senate Judiciary Committee (July 13, 2006). Committee Members rejected these concerns because witnesses who supported the bill, S. 2703, assured Members that the amendment `causes no constitutional difficulty whatsoever, since the amendment only forbids states from making changes that would themselves violate the Fourteenth and Fifteenth Amendments.' Testimony of Karlan, supra; accord id. (`Amending section 5 to prohibit all unconstitutional discrimination with respect to the right to vote, rather than only the subset of unconstitutional discrimination that is also retrogressive poses no constitutional difficulties under any conceivable theory of congressional power.').
Another witness confirmed that adding the phrase `any discriminatory purpose' posed no problems since it merely reiterated the constitutional standard: `[T]here can be no constitutional difficulties in prohibiting under Section 5 all unconstitutional discrimination touching upon the right to vote--discrimination which would also violate the 14th and 15th Amendments to the Constitution. Restoring Section 5 preclearance review to a pre-Reno [v. Bossier Parish] standard would make Section 5 consistent with the prohibition in these Constitutional amendments.' Responses of Catagena, supra.
One traditional and important standard for identifying unconstitutional racial discrimination is to ask whether the challenged action departs from normal rules of decision. Courts and the Justice Department should ask whether the decision not to create a black-majority district departed from ordinary districting rules. If a state has a large minority population concentrated in a particular area, ordinary rules of districting--following political and geographic borders and keeping districts as compact as possible--would recommend that those voters be given a majority-minority district. If the State went out of its way to avoid creating such a majority-minority--one that would be created under ordinary rules--that is unconstitutional racial discrimination.
This amendment also has the effect of preventing the recurrence of some Justice Department policies. For years, the Justice Department required States to maximize majority-minority districts at any cost. The result was bizarrely shaped districts and maps gerrymandered beyond recognition, all on the basis of race. The Supreme Court repeatedly ruled that this policy violated the Constitution. See, e.g., Miller v. Johnson, 515 U.S. 900, 921 (1995); Bush v. Vera, 517 U.S. 952 (1996); Hunt v. Cromartie, 526 U.S. 541 (1999). It is perverse to think that, under the guise of enforcing voting rights, the Justice Department was forcing States to violate citizens' constitutional voting rights. This bill prevents future incidences of such behavior by depriving the Justice Department of the power to define for itself `discriminatory purpose' under the Voting Rights Act.
During the Senate hearings, some witnesses raised concerns that the amendment could be misinterpreted, and that the Justice Department or federal courts might compel the creation of so-called influence or coalitional districts. The adopted language does not prevent a state official from declining to combine a group of minority voters with a group of white voters who tend to support the same parties and candidates in a district where candidates supported by minorities will reliably prevail. Although such an action may make it more difficult for that coalition of voters to elect their preferred candidate, the Voting Rights Act is designed to ferret out and stop unconstitutional discrimination on the basis of race or ethnicity. It is not designed to protect political parties, or to prevent statewide political realignments from being reflected in the redistricting process. Nor can any racial or political group claim a right under the Fourteenth or Fifteenth Amendment to have its members placed as often as possible in districts where candidates of the party favored by that group's members will prevail. The ultimate goal of the Constitution's Fourteenth Amendment is to ensure that persons of all races are treated equally. Those implementing and applying the Voting Rights Act must keep in mind that the Act is designed to enforce the Fourteenth and Fifteenth Amendments.
The language `any discriminatory purpose' does not permit a finding of discriminatory purpose that is based, in whole or part, on a failure to adopt the optimal or maximum number of majority-minority districts or compact minority opportunity districts. Nor does it permit a finding of discriminatory purpose based on a determination that the plan seeks partisan advantage or protects incumbents. The Constitution and the courts already define racial discrimination and it is that constitutional definition which we incorporate. Indeed, it would raise serious constitutional questions if we were to adopt a free-flowing definition of purpose--or authorized the Justice Department to invent one--that is untethered from the Constitution's commands or the Supreme Court's precedents. By anchoring the language of section 5 in the Fourteenth and Fifteenth Amendments, we limit Executive Branch discretion and prevent future incidents of overreaching.
C. `PREFERRED CANDIDATE OF CHOICE'
Another important aspect of the Voting Rights Act is the protection afforded to minorities with respect to districting plans established after each census. For over two decades, the Supreme Court applied a workable standard when reviewing such plans under section 5. The Court asked whether under the proposed plan, `the ability of minority groups . . . to elect their choices to office is . . . diminished.' Beer v. United States, 425 U.S. 130, 141 (1976). In areas with racially polarized voting, this was often equivalent to asking whether the plan maintained naturally occurring majority-minority districts.
In the 2003 case of Georgia v. Ashcroft, the Court replaced this definition--that is, one that protects against retrogression--with a totality of the circumstances approach. The Court held that Section 5 permits states to replace majority-minority districts in which minorities have the ability to elect a candidate of choice with `coalition' or `influence' districts in which minorities have less voting power.
Whatever the merits of such an approach, experts in the area of voting rights have explained that the Georgia standard is unworkable. The concept of `influence' is vague and the concept of a `coalition' district is difficult to define. Theodore M. Shaw, President and Director-Counsel of the NAACP Legal Defense and Educational Fund, testified that he was `skeptical that a workable standard of minority voters' `influence' exists, or could be devised and implemented.' Testimony of Theodore M. Shaw, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 25 (Nov. 9, 2005). And Mr. Shaw was not alone, as numerous witnesses who testified before the House and Senate explained that the Georgia standard is functionally unworkable. E.g., Testimony of Robert Kengle, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 136 (Nov. 9, 2005); Testimony of David T. Canon, Reauthorizing the Voting Rights Act's Temporary Provisions: Policy Perspectives and Views from the Field, Hrg. before the Senate Judiciary Committee (June 21, 2006); Appendix to Testimony of Nathaniel Persily, The Continued Need for Section 5, Hrg. before Senate Judiciary Committee (May 16, 2006).
The House witnesses were also unified in their conclusion that Congress needed to adopt language in order to prevent the substitution of coalition or influence districts for naturally occurring majority-minority districts. Mr. Shaw testified, `What Georgia v. Ashcroft does is open a door to cracking, [or] dilution' of majority-minority districts in order to limit minorities' voting power. Testimony of Theodore M. Shaw, supra, at 58. Attorney Anne Lewis explained that the purpose of this language is to prevent elected officials from unpacking majority-minority districts into `influence' or `coalitional' districts. Testimony of Anne W. Lewis, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 32 (Nov. 9, 2005); accord id. at 35.
Accordingly, S. 2703 specifically amends section 5 of the Voting Rights Act to clarify that it protects the ability of minority voters `to elect their preferred candidates of choice,' and thus re-adopts--and clarifies further--the Beer standard. The phrase `preferred candidate of choice' was first proposed in the House hearings by Mr. Shaw, Ms. Lewis, and Congressman Tyrone Brooks to solve this problem.
These witnesses made it clear that the new language did not require the maximization or creation of majority-minority districts. As one witness explained, the Supreme Court has held `in Miller v. Johnson and Shaw v. Hunt that maximization of minority voting strength is an improper reading of Section 5,' Testimony of Kengle, supra, 139, and this bill does not change that. Ms. Lewis explained that the language `preferred candidate of choice' was not aimed at drawing `bizarre shape[d]' majority-minority districts. Testimony of Anne W. Lewis, supra, 34.
Instead, the language seeks to protect naturally occurring majority-minority districts. Ms. Lewis explained that the goal of the amendment was to prevent states from dismantling or `refusing to draw naturally occurring geographically compact majority-minority districts.' Id. Mr. Shaw likewise stated that the `preferred candidate of choice' language was designed to prevent legislators from intentionally `cracking' or `fragmenting' geographically compact minority voting communities.' Testimony of Shaw, supra, 24.
If covered jurisdictions are permitted to break up districts where minorities form a clear majority of voters and replace them with vague concepts such as influence, coalition, and opportunity--a standard under which no one factor or specific combination of factors is determinative--this may actually facilitate racial discrimination against minority voters.
Particularly disconcerting is the prospect that the Georgia opinion potentially opens the door to increased substitution of partisan interests for the ability of minorities to elect their preferred candidate of choice. Several House witnesses articulated the problem in clear terms: `[To] the extent that [we] can imagine what measures would be used to determine whether substantive representation or influence has been enhanced to prevent retrogression, these measures amount to simply helping Democratic Party candidates . . . Helping Democratic Party candidates would be argued to be equivalent to increasing minority voter influence and helping minority substantive representation. In other words, influence districts, if seen as a replacement for opportunities for minority voters to elect representatives of their choice, would become simply a rationale for creating Democratic party gerrymanders.' Prepared Statement of Theodore S. Arrington, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 84 (Nov. 9, 2005).
However, as we learned from witnesses, this is not an acceptable result. Congressman Brooks made this point when he stated that `. . . retrogression would be something I could never accept. I would not ever sacrifice the full protections of section 5 . . . simply to promote a particular candidate or a political party. And I think that's basically what it came down to in 2001 in Georgia. We were putting political decisions ahead of what the Voting Rights Act really is all about, and I think we made a mistake.' Testimony of Rep. Tyrone Brooks, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 76 (Nov. 9, 2005). One House Member commented that the Georgia legislature `had made a partisan decision to basically protect Democratic districts, or the Democratic Party,' and asked, `do you believe that that's an appropriate use of the Voting Rights Act?' Rep. Brooks responded, `No, I do not,' and urged the Committee to accept the `preferred candidate of choice' language in order to prevent this result in the future. Id. Congressman John Lewis, in endorsing the amendment, stated, `I cannot accept the Court's conclusion that the interests of an incumbent minority politician are the same as the interest of minority voters, with respect to redistricting. There is a clear conflict there.' Prepared Statement of Congressman John Lewis, Hrg. before the Subcommittee on the Constitution of the House Judiciary Committee 81 (Nov. 9, 2005).
In truth, witnesses made clear to the committee that the `argument was that the Voting Rights Act was not intended to protect the incumbents of any political party or, for that matter, the incumbents of any particular race. Instead, the purpose of the Voting Rights Act is to protect the rights of voters in minority racial and language communities, who have historically been denied the opportunity to elect candidates of their choice.' Testimony of Anne W. Lewis, supra, at 34.
The bill's proposed language codifies this understanding. It eliminates any risk that the scenarios feared by Georgia v. Ashcroft's critics will unfold. By focusing solely on the protection of naturally occurring legislative districts with a majority of minority voters, the reauthorization bill ensures that minority voters will not be forced to trade away solidly majority-minority districts for ambiguous concepts like `influence' or `coalitional.' Rather, as the House Committee Report makes clear, the bill `rejects' the Supreme Court's interpretation of section 5 in Georgia v. Ashcroft, and establishes that the purpose of section 5's protection of minority voters is, in the words of the bill, to `protect the ability of such citizens to elect their preferred candidates of choice.'
It is important to emphasize that this language does not protect any district with a representative who gets elected with some minority votes. Rather, it protects only districts in which `such citizens'--minority citizens--are the ones selecting their `preferred candidate of choice' with their own voting power. These two phrases have a limited but important purpose: protecting naturally occurring majority-minority districts. By limiting non-retrogression requirements to districts in which `such [minority] citizens' are able with their own vote power to elect `preferred' candidates of choice--not just a candidate of choice settled for when forced to compromise with other groups--the bill limits section 5 to protecting those naturally occurring, compact majority-minority districts with which section 5 was originally concerned. This approach would avoid what one minority witness called the `cracking' of majority-minority districts.' Testimony of Persily, supra.
Among the salutary effects of the `preferred candidate of choice' language is that it avoids several legal and practical pitfalls. First, the bill would replace the ambiguous standard set by the Supreme Court in Georgia v. Ashcroft with the workable standard in Beer. This would promote the Act's original purposes, provide predictability to all involved, and reduce wasteful litigation. Additionally, the bill would not lock into place coalition or influence districts, as this would wreak havoc with the redistricting process and would stretch the Voting Rights Act beyond the scope of Congress's authority under the Fourteenth and Fifteenth Amendments. Finally, the amendment clarifies that the competitive position of a political party is not the concern of the Voting Rights Act. This legislation definitively is not intended to preserve or ensure the successful election of candidates of any political party, even if that party's candidates generally are supported by members of minority groups. The Voting Rights Act was intended to enhance voting power, not to serve as a one-way ratchet in favor of partisan interests.
Naturally occurring majority-minority districts have long been the historical focus of the Voting Rights Act. They are the districts that would be created if legitimate, neutral principles of drawing district boundaries, such as attention to county and municipal political borders, were combined with the existence of a large and compact minority population to draw a district in which racial minorities form a majority. The changes made by section 5 of this bill, overriding aspects of Georgia v. Ashcroft, would give federal authorities the tools they need to prevent state and local authorities from arbitrarily refusing to create or arbitrarily dismantling such districts, or from implementing other voting practices that are motivated by racial or ethnic discrimination.
X. ADDITIONAL VIEWS OF MR. KYL
I concur without reservation in the Chairman's report. I write separately simply to add a few points with regard to the VRARA's treatment of Reno v. Bossier Parish II, 528 U.S. 320 (2000), and Georgia v. Ashcroft, 539 U.S. 461 (2003).
As the Chairman notes, the VRARA's changes to Section 5 of the Voting Rights Act ensure that the Act will protect the creation and retention of naturally occurring districts with a clear majority of minority voters--and nothing more. The Chairman emphasizes that the Act as amended by the bill does not protect coalitional or influence districts.
I write separately to explain why I believe that Congress cannot require that state or local governments create or retain influence or coalitional districts. These are districts that do not have a majority of minority voters but that nevertheless reliably support candidates and parties supported by minority voters. I believe that extending the protections of Section 5 of the Voting Rights Act to these districts would exceed the scope of Congress's power to enforce the Equal Protection Clause pursuant to Section 5 of the Fourteenth Amendment.
The ultimate goal of the Equal Protection Clause is to ensure that different races are treated equally. Even if influence or coalitional districts were properly understood to protect the interests of minority voters, rather than the interests of political parties--a matter that is of some dispute--a mandate for the creation or retention of such districts would not be a reasonable means of enforcing that Clause. If the Voting Rights Act forced states to create such districts whenever possible (or even only when permitted by neutral redistricting criteria), or barred states from disassembling such districts, Federal law effectively would require that one group of voters be placed as often as possible in districts where candidates and parties supported by that group of voters will prevail.
Such a requirement would be problematic for several reasons. First, it is the nature of politics and elections that some voters will support a winning candidate and that some will support a candidate who loses. It is no violation of a person's voting rights that the candidate that he voted for lost. That is simply how elections work. The Fourteenth and Fifteenth Amendments protect a right to be able to vote free from the influence of racial discrimination. They do not protect a right to have one's candidate prevail in an election.
Moreover, in jurisdictions in which the protected group of voters largely supports one party, a requirement that those voters be placed in districts where their candidates and party will prevail would introduce severe distortions into the redistricting process. In effect, that jurisdiction would be required to create and retain as many districts as possible that would reliably elect candidates of the party favored by the protected group of voters.
Such a mandate would be grossly unfair to voters who support other parties that compete in the jurisdiction's elections. A requirement that one group of voters be given winning districts as often as possible also is a requirement that other voters who support competing parties be placed in losing districts. It is a mandate that effectively would require affirmative discrimination against the aspirations of other voters. Such a system would not be consistent with the principle of the equal protection of the laws. It would not be a reasonable means of enforcing the guarantees of the Fourteenth Amendment.
Further, any application of Section 5 of the Voting Rights Act that would have the effect of favoring one group of voters above and at the expense of other voters would be in serious tension with other parts of the Act. Statutes with integrated provisions effecting a common general objective are read in pari matera--that is, in such a way that one provision does not negate or undercut another. Section 2 of the Voting Rights Act bars the creation of a system under which members of one group `have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.' Obviously, if Section 5 were applied in a way that required that one group of voters be given opportunities superior to those enjoyed by other groups to have its candidates prevail in elections, that section would be inconsistent with Section 2. It would contravene Section 2's prohibition on systems that give some groups `less opportunity than other members of the electorate * * * to elect representatives of their choice.'
If the different parts of the Voting Rights Act are to be construed in harmony, no part of that Act should be employed to require implementation or retention of a particular voting practice simply because it increases the competitive position of a political party that is favored by a particular group of voters. The Voting Rights Act does not require maximization or enhancement of the electoral opportunities of any particular group of voters--a result that could only be achieved at the expense of the rights of other groups of voters. Indeed, such a result would be at odds with the very constitutional provision that the Act is designed to enforce, the Fourteenth Amendment, which requires equal treatment of the rights and opportunities of different groups of voters.
Finally, I would note that the operative assumptions underlying the concepts of influence and coalitional districts appear to be inconsistent with the predicates for Congress's exercise of its powers under Section 5 of the Fourteenth Amendment. Congress may legislate pursuant to Section 5 in order to enact remedial legislation designed to combat substantial and sustained racial discrimination. Because Section 5 of the Voting Rights Act has been enacted and extended pursuant to these Fourteenth Amendment powers, it must be reasonably targeted at jurisdictions suspected of discriminating against the aspirations of minority voters. In reauthorizing Section 5 of the Voting Rights Act, Congress cannot presume the existence of the opposite of the predicates for the exercise of its Fourteenth Amendment powers. The preclearance requirement cannot be based on the assumption that spreading out minority voters will have no negative impact on their electoral aspirations because other groups will readily support minority voters' preferred candidates. If such an assumption were clearly accurate, there would be no basis for legislating pursuant to Section 5 of the Fourteenth Amendment in the first place. And if this or any future Congress were to incorporate such assumptions into Section 5 of the Voting Rights Act, it would cast doubt on the constitutionality of the Act's mandate that covered states and localities preclear all changes in their voting procedures with the Federal government.
With these considerations in mind, I concur in the Committee's decision to report a bill that does not require influence or coalitional districts, but that instead reaffirms the Voting Rights Act's historical focus on protecting naturally occurring majority-minority districts.
JON KYL.
XI. ADDITIONAL VIEWS OF MR. CORNYN AND MR. COBURN
We regret that these views will be filed post-enactment. The expedited process prohibited normal order, but we believe the following considerations should accompany the Act's passage.
The Voting Rights Act of 1965 is arguably the most important and effective civil rights legislation ever enacted. Indeed, when signing the landmark legislation into law, Lyndon Johnson, the President of the United States and former member of the Senate from the state of Texas, described the act's passage as `a triumph for freedom as huge as any victory that has ever been won on any battlefield.' 1
[Footnote] President Johnson's words captured the importance of the act's passage and underscore that it was a hard-fought victory at a tense time in American history.
[Footnote 1: Public Papers of the Presidents of the United States: Lyndon B. Johnson, 1965. Volume II, entry 394, pp. 811-815. Washington, DC: Government Printing Office, 1966.]
It is no secret why the Voting Rights Act was necessary. It was adopted at the height of the civil rights movement, when numerous jurisdictions throughout the United States had actively engaged in the intentional, systematic disenfranchisement of blacks and other minorities from the electoral process. As the committee report and the extensive record reflects, these jurisdictions engaged in the discriminatory use of tests and devices such as literacy, knowledge and moral character tests--tests specifically designed to be failed. Even worse, violence and brutality were commonplace. Blacks were beaten and killed simply for attempting to exercise their right to participate in the democratic process, and civil rights activists were thwarted at every turn in their attempt to enact reform. This type of bigotry and hatred at the polls, coupled with escalating violence and the murder of activists, is the backdrop against which the Voting Rights Act was adopted.
S. 2703, the legislation that has passed out of committee, is another step in our nation's long road toward equal justice under the law for all Americans. The legislation provides for the reauthorization of the expiring provisions of the Voting Rights Act--provisions that are designed to protect against discrimination at the polls. For these reasons, and because we believe that there are certain political subdivisions across the nation that would further benefit from federal oversight, we joined our colleagues in voting for this legislation.
However, we do hold some significant reservations about a number of important issues. These concerns can generally be categorized as follows: (1) the record of evidence does not appear to reasonably underscore the decision to simply reauthorize the existing Section 5 coverage formula--a formula that is based on 33 to 41 year old data, and (2) the seemingly rushed, somewhat incomplete legislative process involved in passing the legislation prevented the full consideration of numerous suggested improvements to the Act.
In short, while we support reauthorization generally, we reluctantly conclude that the final product is not the best product we might have produced had we engaged in a more thorough debate about possible improvements. We also conclude that it would have been beneficial if the Section 4 coverage formula had been updated in order to adhere to constitutional requirements--an update that would have preserved, strengthened and expanded the Act to ensure its future success.
1. EVIDENCE IN THE RECORD CALLS FOR AN UPDATED COVERAGE FORMULA
The good news is that the Act fulfilled its promise. Today, we live in a different--albeit still imperfect--world. Today, no one can claim that the kind of systematic, invidious practices that plagued our election systems 40 years ago still exist in America. And the Act resulted in almost immediate, measurable improvements with respect to covered jurisdictions. However, simply reauthorizing the expiring provisions with the existing coverage formula--based on 33 to 41 year old data--may not have been the best approach given the evidence today in 2006.
Increased Voter Registration and Turnout Rates in Covered Jurisdictions
In 1965 when the Voting Rights Act was adopted the average registration rate for black voters in the seven original covered states was only 29.3 percent. 2
[Footnote] Today, the voter registration rate among blacks, for example, in covered jurisdictions is over 68.1 percent of the population--higher than the 62.2 percent found in non-covered jurisdictions. 3
[Footnote] As the chart below indicates, voter registration data since the Act's original passage in 1965 shows that covered jurisdictions have demonstrated equal or higher voter registration rates among black voters as non-covered jurisdictions since the mid 1970's. 4
[Footnote] Voter turnout data is equally encouraging, with 60 percent of black citizens casting votes in both covered jurisdictions and non-covered jurisdictions. 5
[Footnote]
[Footnote 2: Senate Report 162, at 44 (April 21, 1965).]
[Footnote 3: 2004 Election Data from the U.S. Census Bureau. Reflects the percentage as a percent of the population, as compared to as a percent of the Citizen Voting Age Population. Those numbers are 69.9 percent and 67.9 percent. In addition, certain assumptions were made to account for partially covered jurisdictions--North Carolina and Virginia were considered `covered' for this calculation because of their significant number of covered counties.]
[Footnote 4: Id.]
[Footnote 5: Id.]
Further, statistician Keith Gaddie reported registration of black citizens in Alabama during the 2004 elections was 72.9% of the voting age population, 6
[Footnote] in Georgia, 64.2%, 7
[Footnote] in Louisiana, 71.1%, 8
[Footnote] in Mississippi, 76.1%, 9
[Footnote] in South Carolina, 71.1%, 10
[Footnote] and in Virginia, 57.4% of the voting age population. Voter turnout rates were equally improved. For example, in 2004 Alabama had a 63.9% turnout rate of registered black voters, 11
[Footnote] Georgia had a 54.4% turnout rate, 12
[Footnote] Louisiana had a 62.1% turnout rate, 13
[Footnote] Mississippi had a 66.8% turnout rate, 14
[Footnote] South Carolina had a 59.5% turnout rate, 15
[Footnote] and Virginia had a 49.6% turnout rate. 16
[Footnote]
[Footnote 6: Understanding the Benefits and Costs of Section 5 Pre-Clearance: Before the Senate Comm. on the Judiciary, 109th Cong. 5 (2006) (Submitted testimony by Professor Keith Gaddie on May 17, 2006: The Bullock-Gaddie Voting Rights Studies: An Analysis of Section 5 of the Voting Rights Act. See Table 2 on Alabama.)]
[Footnote 7: Id. See Table 2 on Georgia.]
[Footnote 8: Id. See Table 2 on Louisiana.]
[Footnote 9: Id. See Table 1 on Mississippi.]
[Footnote 10: Id. See Table 1 on South Carolina.]
[Footnote 11: Id. See Table 3 on Alabama.]
[Footnote 12: Id. See Table 3 on Georgia.]
[Footnote 13: Id. See Table 3 on Louisiana.]
[Footnote 14: Id. See Table 2 on Mississippi.]
[Footnote 15: Id. See Table 2 on South Carolina.]
[Footnote 16: Id. See Table 2 on Virginia.]
Declining Objections by the Department of Justice
Another important indicator of the success of the Act is the continual decline of objections issued by the Department of Justice to plans submitted under section 5 for pre-clearance. The Supplemental Views submitted by the Chairman of the Committee includes a chart depicting DOJ objections since 1982. It is worth noting that both total objections and objections as a percent of submissions have declined significantly over that time, and as we understand, since the original passage of the Act.
Our review of the data indicates that the continual decline has occurred under both Republican and Democrat Presidential administrations, dropping from 67 objections out of 2848 in 1982 to only 19 objections out of 3,999 submissions in 1995. Perhaps most telling is the fact that in 2005, there was only 1 objection out of 3,811 pre-clearance submissions. 17
[Footnote]
[Footnote 17: Id.]
While some maintain that the analysis may be skewed since Bossier v. Parrish II removed `discriminatory purpose' from the equation, the fact is that the trend has been a declining number of objections in covered jurisdictions over time. We believe this is something to celebrate as an indication of the success of the Act.
Anecdotal Accounts Submitted Implicate only a Portion of Covered Political Subdivisions
The volume of testimony and submissions amassed during the House and Senate hearings was overwhelming. Indeed, when the Senate Judiciary Committee held its first hearing, the House Judiciary Committee Chairman said, `I am here today to present this Committee with the results of our examination, which includes almost 8,000 pages of testimony that comprise 9 of the 10 hearing records compiled by the House Judiciary Committee.' Our understanding is that ultimately the Senate received almost 10,000 pages from the House of Representatives.
Numerous witnesses suggested that the primary rationale for continued coverage based on the existing formula was over 10,000 pages of accounts of discrimination compiled. Senate Judiciary staff analyzed the report during the course of hearings seeking to find all accounts of discrimination alleged in the report. The result of that effort--a 283 page summary of examples of discrimination--is included as Appendix 3 to the Committee Report.
While we take no position on the existence of discrimination alleged in the accounts in the record, at face value the anecdotes submitted implicate only a fraction of the total number of covered political subdivisions. 18
[Footnote] For example, of the 254 counties in Texas, only 22 are implicated by the accounts of discrimination submitted in the record. This analysis admittedly excludes any accounts of statewide discrimination (e.g. a redistricting plan)--because including such examples are indicative of the state policy not the local political subdivision.
[Footnote 18: It was not possible for our staffs to investigate and verify each and every account of discrimination submitted.]
COUNTIES SPECIFICALLY IMPLICATED IN HOUSE AND SENATE RECORD ACCOUNTS OF DISCRIMINATION 19
-------------------------------------------------------------------------------------------------------------------------------
State Number of Counties Implicated Total Number of Counties in the State Percentage of Counties Implicated (Percent)
-------------------------------------------------------------------------------------------------------------------------------
Alabama 13 67 19.40
Alaska 5 27 18.52
Arizona 6 15 40.00
California 10 58 17.24
Colorado 2 64 3.13
Florida 5 67 7.46
Georgia 27 159 16.98
Illinois 8 102 7.84
Indiana 1 92 1.09
Kentucky 3 120 2.50
Louisiana 2 64 3.13
Maryland 1 23 4.35
Massachusetts 2 14 14.29
Michigan 5 83 6.02
Minnesota 2 87 2.30
Mississippi 8 82 9.76
Missouri 1 114 0.88
Montana 6 56 10.71
New Jersey 5 21 23.81
New Mexico 3 33 9.09
New York 8 62 12.90
North Carolina 15 100 15.00
Ohio 2 88 2.27
Pennsylvania 3 67 4.48
Rhode Island 1 5 20.00
South Carolina 23 46 50.00
South Dakota 14 66 21.21
Texas 22 254 8.66
Virginia 14 134 10.45
Washington 1 39 2.56
Wisconsin 3 72 4.17
Wyoming 1 23 4.35
-------------------------------------------------------------------------------------------------------------------------------
COUNTIES SPECIFICALLY IMPLICATED IN PARTIALLY COVERED JURISDICTIONS
-------------------------------------------------------------------------------------------------------------------------
State Covered Counties Implicated Preclearance Counties Percentage of PreclearanceCounties Implicated (Percent)
-------------------------------------------------------------------------------------------------------------------------
California 3 4 75
Florida 0 5 0
Michigan 2 2 100
New York 3 3 100
North Carolina 9 40 22.5
South Dakota 2 2 100
Virginia 14 123 11.38
-------------------------------------------------------------------------------------------------------------------------
Interestingly, while Florida has 5 counties that are subject to Section 5 coverage, none of these counties were implicated by the accounts of discrimination. Yet there were 5 non-covered counties in Florida that were pointed out in the list of accounts. If reauthorization of Section 5 coverage is based on the accounts in the record, it does not seem that the coverage formula in Florida as re-authorized could possibly be appropriate.
In the Senate Judiciary Committee mark-up, Senator Durbin argued in favor of reauthorization by stating that, `[w]e have gathered thousands of pages of reports and evidence.' 20
[Footnote] While there are, in fact, thousands of pages in the record--it is important to clarify that there are a limited number of examples of discrimination and that the examples offered do not implicate the majority of covered political subdivisions. In all, of 893 covered counties, 139 are directly implicated in the accounts of discrimination scattered throughout those `thousands of pages.'
[Footnote 20: Unofficial Transcript: Special Executive Business Meeting to Consider S. 2703, Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006: Senate Committee on Judiciary, 109th Cong. 19 (2006) (Oral statement of Senator Dick Durbin on July 19, 2006).]
There is no question that if those accounts are accurate, that those 139 counties are deserving of coverage under Section 5, and possibly numerous others upon review. That is precisely the reason we voted for this legislation. But it would have been advisable for the committee or the Senate as a whole to consider an updated coverage formula to ensure that the appropriate jurisdictions were covered according to constitutional requirements. That kind of deliberative process simply was not allowed to occur.
It strikes us that much of this is great news. Increased voter registration rates for African American voters in covered jurisdictions, reduced numbers of objections sustained, increased numbers of minority elected officials, fewer counties implicated with discriminatory activity, and generally a decreasing distinction, if any, between covered jurisdictions and non-covered jurisdictions means that there is strong and compelling evidence that, in fact, the Voting Rights Act has largely achieved the purposes that Congress had hoped for and that millions of people who had previously been disenfranchised had prayed for.
In light of this strong indication that the act has largely achieved the purposes that Congress had intended, of course, the logical question before us was whether these provisions under section 5 should have been reauthorized.
2. THE LEGISLATIVE PROCESS FAILED TO PRODUCE THOROUGH DELIBERATION
Misunderstood Timing and Nature of Re-Authorization
From the beginning of the reauthorization process, two critical facts were repeatedly ignored or misunderstood: (1) that the Voting Rights Act is, in fact, permanent and only certain temporary provisions are set to expire; and (2) that the expiring provisions were not set to expire until the summer of 2007--and thus there was plenty of time to work on improving the Act.
The misunderstanding about the permanence of the Voting Rights Act--particularly by the press--is perhaps most troubling. In truth, the act's core provision, section 2, prohibits the denial or abridgement of the right of any citizen to vote on account of race or color, is permanent, and applies nationwide. That provision will never expire, and it is not affected by the reauthorization language we review today.
This is an important distinction because it caused a great deal of confusion in the public. In fact, according to the Department of Justice, the agency `received numerous inquiries concerning a rumor that [was] intermittently circulating around the nation . . . According to this rumor, the Voting Rights Act will expire in 2007, and as a result African Americans are in danger of losing the right to vote in that year.' 21
[Footnote] In truth, as the DOJ points out, `[t]he voting rights of African Americans are guaranteed by the United States Constitution and the Voting Rights Act, and those guarantees are permanent and do not expire.' 22
[Footnote] Instead, we are addressing (a) temporary provisions that were originally set to expire in 5 years, and that were adopted to subject certain jurisdictions to Federal oversight of the voting laws and procedures until the intent of the Voting Rights Act was accomplished, as well (b) certain temporary, later-added provisions designed to protect voters from discrimination based upon limited English proficiency.
[Footnote 21: www.usdoj.gov, U.S. Department of Justice, Civil Rights Division Voting Section, Voting Rights Act Clarification.]
[Footnote 22: Id.]
We believe that this misunderstanding about the nature and timing of the expiration of certain provisions of the Voting Rights Act contributed to an unnecessarily heightened political environment that prohibited the Senate from conducting the kind of thorough debate that would have produced a superior product.
Expedited Process Reduced Focus on the Issue
Chairman Specter readily ceded to requests that were made to try to create a complete record. The Chairman worked hard to hold a sufficient number of fair and balanced hearings, but given our busy schedule on the Senate floor, it was not always easy for Members to attend and participate. An artificial rush to move the House version of the Voting Rights Act through the Senate on an expedited basis began more than a full year prior to the earliest expiration of any provisions of the Act.
The Senate Judiciary Committee held nine hearings with a total of forty-six witnesses. Eight of those hearings were held in nine work weeks--and during times when many Committee members had other obligations. Indeed, four hearings were held during a substantial floor debate on the issue of immigration--legislation that directly involved most Judiciary Committee members in one way or another. Two hearings were interrupted by roll-call votes on the floor.
The timing of our hearings and the expedited nature of the process was prohibitive to Senators who otherwise would have participated. Member attendance at these hearings was low. Indeed, at each of the first two hearings on Section 5, only one Senator was able to attend. Five Committee Members were unable to attend any of the hearings, while five others attended only a portion of one hearing. This is not meant as criticism to the Members that were unable to attend--indeed we unfortunately missed a number of hearings. Rather, it is meant to shed light on the process, a process that prohibited the kind of engaged discussion we would have preferred.
The only way many Senators could ask thoughtful questions of witnesses at the hearings was through written questions, and many were submitted. In fact, Senators submitted a total of 610 follow-up questions. Unfortunately, however, when the Senate marked up the legislation, we were told that 107 written questions to 10 witnesses were outstanding. Further, questions had not yet even been submitted for the final hearing--a hearing we had held just one week prior regarding the important issue of how the Supreme Court's decision in LULAC v. Perry may have influenced our legislation.
Suggested Improvements Not Considered
Over the course of the many hearings we held, we heard from a variety of witnesses--from across the political spectrum and across racial lines. Many witnesses, from all sides of the debate, suggested improvements to the Act.
For example, Loyola law professor Rick Hasen suggested in his testimony before the committee several specific ways to amend the Act. For example, he suggested that `Congress should make it easier for covered jurisdictions to bail out from coverage under Section 5 upon a showing that the jurisdiction has taken steps to fully enfranchise and include minority voters,' and that Congress should impose a shorter time limit, perhaps 7 to 10 years for extension. The bill includes a 25-year extension, and the Court may believe it is beyond `congruent and proportional' to require, for example, the State of South Carolina to pre-clear every voting change, no matter how minor, through 2031.' 23
[Footnote]
[Footnote 23: Unofficial Transcript: An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Before the Senate Comm. on the Judiciary, 109th Cong. 25 (2006).]
Similarly, Samuel Issacharoff, Professor of Constitutional Law at the New York University School of Law, suggested five ways to improve the Act during his oral testimony:
First, I would recommend that the unit of coverage be moved from the States to political subdivisions of the States . . . Second, I think that is important, as Professor Hasen said a minute ago, to liberalize the bailout provisions . . . Third, I think that if we were to start from scratch today, we might consider a different kind of administrative mechanism other than the preclearance, and one way of thinking about this is that preclearance is extremely onerous and applies an ex ante and ahead-of-time review much like the FDA to any proposed change. One could also imagine a Securities and Exchange Commission type reporting system that covered jurisdictions who have not actively violated the Act in the last 5 years, or some defined period, would be required to post on a website any proposed change and the reasons for it and be subject to either affirmative litigation under Section 2 or simply a false statement litigation . . . Fourth, I would expand the jurisdictional reach of Section 5 by allowing this disclosure regime to be applied to any jurisdiction that has been found guilty of a Section 2 violation or that has engaged in affirmative actions against minority voters. And, finally, I think that there is reason for concern with the language on the overruling of Georgia v. Ashcroft, and I think that the reason for the concern is that the current statute faces a climate very different from that in 1965 in that you have real bipartisan competition in most of the covered jurisdictions today, which means that certain features of conduct, State conduct, will not go by unattended, will not simply pass muster without anybody realizing. And I would recommend removing statewide redistricting from Section 5 overview altogether. That has been an area of some controversy with the Department of Justice, and it has been an area where there is plenty of litigation in every redistricting anyway, and I don't think Section 5 worked particularly effectively there. 24
[Footnote]
[Footnote 24: Unofficial Transcript: An Introduction to the Expiring Provisions of the Voting Rights Act and Legal Issues Relating to Reauthorization: Before the Senate Comm. on the Judiciary, 109th Cong. 37 (2006).]
We believe it would have been beneficial for the long-term viability, constitutionality and success of the Voting Rights Act had for the Senate Judiciary Committee to engage in a serious, reasoned debate over some of these suggested possible improvements as well as any other ideas. These improvements would underscore the Act's original purpose, and would modernize it to reflect today's reality. They would possibly expand the coverage of section 5 to jurisdictions where recent abuses have taken place or, perhaps, have improved the so-called bailout procedures for those jurisdictions that had a successful record of remedying, indeed eliminating discrimination when it comes to voting rights.
One idea that was offered was to update the coverage formula. We don't know if that is a good idea or not, but we would like to know. Some suggest that such an update would `gut' or otherwise undercut the effectiveness of the Act--something that certainly would not be our intention. But we are skeptical that this would be the result. The amendment that was voted on in the House, for example, would have updated the coverage trigger to the most recent three Presidential elections from the current trigger of the 1964, 1968, and 1972 elections.
As we understand it, coverage, after an update to cover the most recent three Presidential elections, would look something like the chart included at the end of our views, entitled `Effect of Basing Section Coverage on Recent Election Data.' This chart reflects the effect of implementing a new coverage formula. In other words, rather than basing coverage on election data that is several decades old, where nine states are completely covered and a handful of other political subdivisions around the country are covered, one would see coverage of different jurisdictions around the country based on the updated formula. The intent would be to reflect the problems where they really exist and where the record demonstrates some justification for the assertion of Federal power and intrusion into the local and State electoral processes.
If this map is an accurate reflection of the effects of updating the trigger to the most recent three Presidential elections, it certainly changes the coverage. But we would suggest, just looking at the jurisdictions on the map, it hardly guts it. Another alternative might have been to use the very evidence provided in the House and Senate record--as discussed above--that implicates 139 of the currently covered counties as well as 45 of the non-covered counties throughout the nation.
The primary point is not that any of these methods is necessarily the right approach, but that it would have been beneficial for us to have had a full discussion of ways to improve the Act to ensure its important provisions were narrowly tailored and applied in a congruent and proportional way, something the Supreme Court will take into consideration when it considers the renewed Act. We believe we could have done it had we taken the time to do it.
Legislative Language Seemingly a Foregone Conclusion
Probably our most significant concern is that this important legislation was--unfortunately--a bit of a foregone conclusion. As we described above, the hearings held in the Senate were quite informative. There were numerous perspectives--numerous ideas offered on how to improve the Act from witnesses across the ideological and racial spectrum and those both supportive of the reauthorization and concerned with the reauthorization.
From the outset, the default seemed to be to accept the House product without deliberation. In fact, the findings in the Senate-dropped version of the bill were adopted PRIOR to a single hearing being held in the Senate Judiciary Committee. Despite the fact that each hearing had a very balanced panel and many amendment ideas were offered by witnesses, it was clear that no amendment would be given serious consideration because of the political nature of the bill and the expedited, rushed process. As described earlier in our views, the Committee marked up the legislation with 107 written questions to 10 witnesses outstanding, as well as before questions were even submitted to our final panel. Unfortunately, we proceeded without the benefit of a complete record despite the fact that we had plenty of time to receive the answers from witnesses and fully consider their implications and input.
And the questions that Senators asked revealed that they were interested in at least considering amendments. Many Senators asked which amendments to consider and how to properly draft such amendments. However, when the House of Representatives passed H.R. 9, their version of the Voting Rights Act, without any amendments on July 13, 2006, it became clear that the Senate would pass a bill without any amendments. If there had been any doubt prior, the text of the bill became a foregone conclusion for the Senate after House passage.
The process that led to a vote on the floor reveals that not a single change was permitted to be made to the legislation passed in the Senate. While the Committee approved by voice vote an amendment offered by Senator Leahy to incorporate Mr. Cesar Chavez's name into the title of the Act, it became clear that the Committee would not accept any amendments that changed the substance of the bill, including the amendments circulated by Senator Coburn. In fact, Senators expressed concern about any amendments that would slow the expedited passage of the Act. The Judiciary Committee reported out the Senate's version of the Fannie Lou Hamer, Rosa Parks, Coretta Scott King and Caesar Chavez Voting Rights Act Reauthorization and Amendments Act of 2006, S. 2703, without substantive amendment.
Yet, Majority Leader Frist had already used Rule 14 of Senate procedure to place H.R. 9 on the calendar, and we were told that it was the House legislation would be called up for a full vote on the Senate floor the following afternoon. The rules adopted for floor debate allowed for eight hours of discussion evenly divided by the Republicans and Democrats and ruled out the ability to offer amendments on the floor. The process prevented any amendments on the floor so that the same Act that the House of Representatives approved would pass the Senate and there would be no conference. While a Member may have been able to object and require a vote on an amendment, the outcome was a foregone conclusion, and thus it would have been futile.
Finally, even the production of this committee report--something that normally is of the utmost significance for such important, complicated legislation--has been short circuited. Indeed, the report will not be filed until several days after the passage of the legislation and just before it is signed into law. We remain convinced that these views are critical to a full understanding of the legislative process behind enactment and thus include them in the Committee Report.
CONCLUSION
We decided to support the extension of the expiring changes, even though it would have been preferable and even constitutionally advisable for us to review the application of the Act's pre-clearance and other provisions. Unfortunately, the Act's language was a foregone conclusion, and we were unable to have the kind of debate and discussion and perhaps amendment process that might have been helpful to protect the act against future legal challenges. We wish we would have had the opportunity to improve the Act--because we are confident that with a little work, we could have done just that.
We cannot help but fear that the driving force behind this rushed reauthorization process was the reality that the Voting Rights Act has evolved into a tool for political and racial gerrymandering. We believe that is unfortunate and that political re-districting should be driven by objective parameters and should not use race to further the objectives of political parties.
Nonetheless, we voted for reauthorization because of the unparalleled success of the Voting Rights Act in the past in securing the opportunity to vote. Few issues are as fundamental to our system of democracy and the promise of equal justice under law as the Voting Rights Act. The Act was specifically designed to `foster our transformation to a society that is no longer fixated on race,' to 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.' 25
[Footnote]
[Footnote 25: Georgia v. Ashcroft, 539 U.S. 461, 490 (2003).]
It is our sincere hope that we will move beyond distinctions based on race in our policymaking, lest we, in the words of Justice Anthony Kennedy, make `the offensive and demeaning assumption that voters of a particular race, because of their race, think alike, share the same political interests, and will prefer the same candidates at the polls.'
The question in the end is this: Is this bill that we have passed the very best possible product? We would conclude that it is not. Yet, in response to the question: Is this the very best that we can do under the circumstances?' We reluctantly conclude that it is. And that is why we supported it in Committee and on the floor.
EFFECT OF BASING SECTION COVERAGE ON RECENT ELECTION DATA
The table below reflects the results we believe would occur from updating the Section 4 coverage formula to 2000 and 2004 Presidential Election data from the current formula based on the 1964, 1968 and 1972 election years. The original figure to be included in this Committee Report was a map depicting the counties covered. The purpose of the map was to demonstrate the significant coverage that would be retained in currently covered jurisdictions as well as the fact coverage would be expanded. However, GPO is unable to print such a map into the record, so in its place we have included the following table. As pointed out in the additional views, we do not suggest that this coverage formula is the best or preferred formula, but that it would have been a reasonable alternative and should have been given appropriate consideration in the Senate.
John Cornyn.
Tom Coburn.
VOTER TURNOUT DATA REPRESENTS THE PERCENTAGE OF THE CITIZEN VOTING AGE POPULATION
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State County 2004Coverage 2000Coverage 2004Turnout 2000Turnout Count
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AL Barbour County Y 48.72% 1
AL Bibb County Y Y 47.28% 45.89% 1
AL Blount County Y 48.68% 1
AL Butler County Y 49.92% 1
AL Calhoun County Y 45.78% 1
AL Chambers County Y Y 48.85% 43.19% 1
AL Cherokee County Y Y 47.50% 42.12% 1
AL Cleburne County Y 47.83% 1
AL Coffee County Y 47.67% 1
AL Coosa County Y 49.18% 1
AL Covington County Y 47.46% 1
AL Crenshaw County Y 46.62% 1
AL Dale County Y 44.70% 1
AL DeKalb County Y Y 49.04% 43.39% 1
AL Elmore County Y 48.84% 1
AL Escambia County Y Y 42.96% 40.16% 1
AL Franklin County Y 49.57% 1
AL Geneva County Y 48.99% 1
AL Houston County Y 49.21% 1
AL Jackson County Y Y 49.39% 43.93% 1
AL Lauderdale County Y 47.77% 1
AL Lawrence County Y 47.20% 1
AL Lee County Y Y 47.95% 44.22% 1
AL Limestone County Y 48.46% 1
AL Macon County Y 49.61% 1
AL Marion County Y 48.73% 1
AL Marshall County Y 46.87% 1
AL Mobile County Y 48.96% 1
AL Montgomery County Y 48.98% 1
AL Pike County Y 47.90% 1
AL Randolph County Y 47.56% 1
AL Russell County Y Y 46.98% 40.89% 1
AL Talladega County Y 42.43% 1
AL Tuscaloosa County Y 48.38% 1
AL Walker County Y 47.64% 1
AL Winston County Y 49.61% 1
AL Count 36
AR Arkansas County Y Y 46.76% 41.02% 1
AR Ashley County Y Y 49.75% 47.46% 1
AR Bradley County Y Y 46.06% 42.74% 1
AR Chicot County Y Y 49.23% 44.12% 1
AR Clark County Y 47.75% 1
AR Clay County Y Y 47.25% 43.59% 1
AR Columbia County Y 48.89% 1
AR Conway County Y 48.16% 1
AR Craighead County Y Y 46.57% 41.05% 1
AR Crawford County Y 46.90% 1
AR Crittenden County Y Y 43.51% 38.14% 1
AR Cross County Y 44.39% 1
AR Dallas County Y 49.27% 1
AR Desha County Y