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# Legislative Bulletin...........................................June 21, 2006

> **Contents:**
>
> **H.R. 9** --- Fannie Lou Hamer, Rosa Parks, and Coretta Scott King
> Voting Rights Act Reauthorization and Amendments Act of 2006

H.R. 9 --- Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting
Rights Act Reauthorization and Amendments Act of 2006 --- *as reported*
(Sensenbrenner, R-WI)

**[Order of Business]{.underline}:** The bill is scheduled for
consideration on Wednesday, June 21, 2006, subject to a structured rule.
The two amendments made in order under the rule ([H. RES.
878](http://thomas.loc.gov/cgi-bin/query/z?c109:H.Res.878:)) are also
summarized in this document.

**[Summary]{.underline}:** H.R. 9 would amend the Voting Rights Act of
1965 to modify and extend provisions regarding election examiners,
disfranchising voting qualifications, bilingual balloting, payment of
certain attorney fees in enforcement proceedings, etc. The specific
provisions of the bill are as follows:

-   Directs the Office of Personnel Management (OPM) Director to assign
    as many observers for a political subdivision as he deems
    appropriate when:

1)  a court has authorized the appointment of observers for such
    subdivision;

2)  the Attorney General certifies that he has received legitimate
    written complaints (from residents, elected officials, or civil
    organizations) that efforts to disfranchise voters are "likely to
    occur;" or

3)  the assignment of observers is necessary to enforce the 14^th^ or
    15^th^ amendment, in the judgment of the Attorney General (AG).
    Stipulates that the AG should consider, among other things, "whether
    the ratio of nonwhite persons to white persons registered to vote
    within a subdivision appears to be **reasonably** attributable to
    violations of the 14^th^ or 15^th^ amendment, or whether
    **substantial evidence exists that bona fide efforts are being
    made** to comply with the 14^th^ or 15^th^ amendments." It appears
    from the text that the burden to prove a violation has *not*
    occurred is substantially higher than the burden to show a violation
    may have "reasonably" occurred. Thus, in those instances, the
    assignment of observers seems to be highly probable.

> [Note]{.underline}: According to the Committee Report, current law
> (Section 8 of the VRA) authorizes the AG to request that OPM assign
> observers to jurisdictions where examiners are located to ensure
> voters are not disfranchised *only* after a jurisdiction has been
> certified for federal examiner coverage. The above mentioned provision
> would eliminate the requirement to first obtain certification by a
> federal examiner.

-   Directs that observers must be assigned, compensated, and separated
    (for their observer duty) without regard to any other OPM statute
    (that may impede or conflict with their role as an observer).

-   Directs the OPM Director to designate suitable persons in the
    official service of the United States to serve as observers, and
    authorizes observers to:

1)  enter and attend any election place for the purpose of observing
    whether eligible persons are being permitted to vote, and

2)  enter and attend any place for tabulating the votes cast in any
    election, to observe whether (legitimate) votes are being properly
    tabulated.

-   Provides for the termination of assigned observers whenever the AG
    notifies OPM, or whenever the DC District Court determines in a
    declaratory judgment case, that there is no longer "reasonable cause
    to believe that persons will be deprived of or denied the right to
    vote on account of race or color."

-   Defines a political subdivision as one which the Director of the
    Census has determined that more than 50 percent of nonwhite persons
    of voting age residing there are registered to vote.

-   Permits a political subdivision to petition the AG for a termination
    of election observers.

-   Repeals sections 6, 7, and 9 of the VRA of 1965, relating to federal
    examiners (their role is supplanted by federal observers based on
    new provisions discussed above).

-   Renames the Voting Rights Act in the U.S. Code to the "Fannie Lou
    Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act
    Reauthorization and Amendments Act of 2006."

-   Expands the criteria for a declaratory judgment (defined
    [here](http://www.nolo.com/definition.cfm/Term/ED8E9D0B-38C9-4D40-ADC1E5392D91A929/alpha/D/))
    by a court to include any voting qualification or procedure that has
    the purpose of diminishing the ability of a citizen (on account of
    race or color) to elect their preferred candidate or that abridges
    their right to vote.

-   Expands the legal fees to include "reasonable expert fees, and other
    reasonable litigation expenses" that the court may allow the
    prevailing party to include as part of their costs (to be paid for
    by the losing party).

-   Extends bilingual election requirements for 25 years, through August
    5, 2032; the bilingual provision in current law states "no covered
    state or political subdivision shall provide voting materials only
    in the English language."

-   Extends the coverage formulas and preclearance procedures of the VRA
    to 2032, whereby states and subdivisions are required to obtain
    clearance from the Department of Justice or the U.S. District Court
    for the District of Columbia *prior* to changing any election law.

-   Revises the requirement in current law to use "census data" to
    instead use the "2010 American Community Survey census data" and
    subsequent data in 5-year increments; this provision effectively
    modifies the requirements for determining which states and political
    subdivisions will be covered by VRA provisions.

-   Directs the Comptroller General to study the "implementation,
    effectiveness, and efficiency of the current section 203 of the
    Voting Rights Act" (regarding the required bilingual language
    assistance provisions) and alternatives to current implementation;
    requires a report be submitted to Congress within one year of
    enactment of this Act.

H.R. 9 also states a number of findings, including the following:

-   "The continued evidence of racially polarized voting in each of the
    jurisdictions covered by the expiring provisions of the Voting
    Rights Act of 1965 demonstrates that racial and language minorities
    remain politically vulnerable, warranting the continued protection
    of the Voting Rights Act of 1965;

-   "The evidence clearly shows the continued need for Federal oversight
    in jurisdictions covered by the Voting Rights Act of 1965 since
    1982, as demonstrated in the counties certified by the Attorney
    General for Federal examiner and observer coverage and the tens of
    thousands of Federal observers that have been dispatched to observe
    elections in covered jurisdictions;

-   "Despite the progress made by minorities under the Voting Rights Act
    of 1965, the evidence before Congress reveals that 40 years has not
    been a sufficient amount of time to eliminate the vestiges of
    discrimination following nearly 100 years of disregard for the
    dictates of the 15th amendment and to ensure that the right of all
    citizens to vote is protected as guaranteed by the Constitution; and

-   "Present day discrimination experienced by racial and language
    minority voters is contained in evidence, including the objections
    interposed by the Department of Justice in covered jurisdictions;
    the section 2 litigation filed to prevent dilutive techniques from
    adversely affecting minority voters; the enforcement actions filed
    to protect language minorities; and the tens of thousands of Federal
    observers dispatched to monitor polls in jurisdictions covered by
    the Voting Rights Act of 1965."

**[Additional Information]{.underline}:** The Voting Rights Act was
initially passed in 1965 in response to evidence of disfranchisement of
black citizens in several southern states. The primary purpose of the
Act was to safeguard against potential efforts by states and localities
to use tests to determine eligibility to vote, thereby discouraging
voter participation among minorities. Thus, the VRA attempts to enforce
the 13^th^ Amendment (prohibiting slavery), the 14^th^ Amendment
(providing for equal protection under the law to all citizens, voting
apportionment provisions, etc.), and the 15^th^ Amendment (the right of
all citizens to vote without regard to race, color, or previous
condition of servitude).

According to CRS, at present, there are 16 states (in whole or in part)
that are covered by the VRA. The VRA was modified and extended in 1970,
1975, 1982, and 1992. The major provisions of the VRA are summarized
below:

**Section 4.** Prohibits the use of all literacy tests and any other
"device" or undue requirement as a condition for voter registration in
states and political subdivisions of states that are subject to the
coverage formulas defined in VRA. The coverage formulas are based on
census data, stipulates a state or subdivision is covered if 1) it
maintained a test or device as a condition for voter registration in
certain presidential election years (1964, 1968, and 1972), and 2)
either less than 50 percent of citizens of legal voting age were
registered to vote or less than 50 percent of citizens voted in the
presidential election held in the year in which it used the test or
device." This section also includes a "bailout" provision that allows
states to be removed from coverage of VRA.

**Section 5.** Establishes "preclearance" procedures whereby covered
states and jurisdictions must obtain clearance for any change in voting
law or procedures from either the Justice Department of the U.S.
District Court for D.C. *prior* to implementing the proposed change.

**Section 6-9.** Establishes federal examiners and observers that are
authorized to enter voting locations to ensure that valid citizens are
not being disfranchised.

**Section 203.** Requires bilingual election assistance for covered
areas (added in 1975). Specifically, this provision prohibits a covered
state or subdivision from providing voting materials only in the English
language.

**[Administration Policy]{.underline}:** A Statement of Administration
Policy (SAP) was not available at press time.

**[Possible Conservative Concerns]{.underline}:** Conservatives have
historically been concerned primarily with Sections 4 and 5 of the
Voting Rights Act (discussed above). Many conservatives have found the
preclearance requirements in Section 5 of VRA onerous and overly
restrictive, and some covered Southern states have expressed concerns
with the provisions in Section 4 that determine VRA coverage based on
outdated census data. Conservatives have also expressed concerns about
the cost and extension of the bilingual balloting provisions in section
203, arguing that they are expensive and unnecessary, and also
criticizing the formula under which languages must be included.

This legislation does not significantly address these concerns, and
primarily expands or extends the provisions of VRA, with the exception
of the elimination the federal examiner's role (assumed by the federal
observer).

**[Amendments]{.underline}:** There are two amendments (Norwood and
Westmoreland) made in order under the rule, which are summarized below
(based on the actual text of the amendment):

**1. Norwood (R-GA).** Modifies Section 4 of the VRA regarding the
formula for determining a "covered" state or subdivision; the amendment
would update the current formula (which uses the 1964, 1968, and 1972
presidential elections for the voter turnout formula and uses 1964 to
determine if a state had a discriminatory test in place) to use the last
three presidential elections. Thus, it would be a "rolling formula" that
would always include the *three most recent* presidential elections. The
sponsor states that this amendment would "ensure that all states are
treated equally under the VRA... rather than a certain few states and
jurisdictions based on actions taken forty years ago."

**2. Westmoreland (R-GA).** Directs the Attorney General to annually
determine if each state and political subdivision covered by the VRA
meets the requirements for a declaratory judgment (a court decision
declaring the rights of each party, without awarding damages or
instructing action). In other words, a covered state must seek a
declaratory judgment in order to "bailout" from the provisions of the
VRA, and this amendment would direct the DoJ to compile an annual list
those states or subdivisions that could seek bailout. It would require
the DoJ to publicly release this information and inform each state of
its findings. If a state or subdivision was found to meet the
requirements, the amendment would direct the DoJ to consent to the entry
of a declaratory judgment in favor of the state. Therefore, the DoJ
would be directed to agree with the state's contention that they meet
the requirements for a bailout. According to the sponsor, this would
"drastically reduce the cost and fact-finding necessary to achieve
bailout under the statute."

**[Committee Action]{.underline}:** H.R. 9 was introduced on May 2,
2006, and referred to the Committee on the Judiciary's Subcommittee on
the Constitution. The bill was marked-up and amended on May 10, and it
was reported to the House by a vote of 33-1 the same day (H. Rept.
[109-478](http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr478):)).

**[Cost to Taxpayers]{.underline}:** CBO estimates that implementing
H.R. 9 would cost \$1 million in FY07 and \$15 million over the
FY07-FY11 period, subject to the availability of appropriated funds.

**[Does the Bill Expand the Size and Scope of the Federal
Government?]{.underline}:** The bill revises and extends current law and
provisions of the Voting Rights Act, as described above.

**[Does the Bill Contain Any New State-Government, Local-Government, or
Private-Sector Mandates?]{.underline}:** CBO notes that "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" and has determined that VRA falls within that exclusion. As
such, CBO has not reviewed this legislation for mandates as defined by
UMRA.

**[Constitutional Authority]{.underline}:** The Committee Report, H.
Rept.
[109-478](http://www.congress.gov/cgi-lis/cpquery/R?cp109:FLD010:@1(hr478):),
cites constitutional authority for this legislation under Section 5 of
the Fourteenth Amendment (equal protection of the laws) and Section 2 of
the Fifteenth amendment (right of citizens to vote). House Rule XIII,
Section 3(d)(1), requires that all committee reports contain "a
statement citing the *specific* powers granted to Congress in the
Constitution to enact the law proposed by the bill or joint resolution."
(*emphasis added)*

**[RSC Staff Contact]{.underline}:** Derek V. Baker;
[derek.baker@mail.house.gov](mailto:Derek.baker@mail.house.gov);
202-226-8585

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