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31–269 PDF 2007

S. HRG. 109–822

REAUTHORIZING THE VOTING RIGHTS ACT’S TEMPORARY PROVISIONS: POLICY PERSPECTIVES

AND VIEWS FROM THE FIELD

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

JUNE 21, 2006

Serial No. J–109–88

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND PROPERTY RIGHTS

SAM BROWNBACK, Kansas, Chairman 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

RUSSELL D. FEINGOLD, Wisconsin 

EDWARD M. KENNEDY, Massachusetts 

DIANNE FEINSTEIN, California 

RICHARD J. DURBIN, Illinois 

AJIT PAI, Majority Chief Counsel 

ROBERT F. SCHIFF, Democratic Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS

Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas ....................... 1

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 5

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 4

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 2

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont, prepared 

statement .............................................................................................................. 220

WITNESSES 

Adegbile, Debo, Associate Director of Litigation, NAACP Legal Defense and 

Educational Fund, Inc., New York, New York .................................................. 6

Canon, David, Professor, Department of Political Science, University of Wisconsin, Madison, Wisconsin ................................................................................. 15

Park, John J., Jr., Assistant Attorney General, Office of the Attorney General, 

Montgomery, Alabama ......................................................................................... 13

Reynolds Gerald A., Chairman, U.S. Commission on Civil Rights, Assistant 

General Counsel, Kansas City Power & Light Company, Kansas City, Missouri ....................................................................................................................... 9

Swain, Carol, Professor of Political Science and Professor of Law, Vanderbilt 

University, Nashville, Tennessee ........................................................................ 18

Wright, Donald M., General Counsel, North Carolina State Board of Elections, Durham, North Carolina ........................................................................... 11

QUESTIONS AND ANSWERS 

Responses of Debo Adegbile to questions submitted by Senators Kennedy, 

Leahy, Cornyn, and Coburn ................................................................................ 29

Responses of David Canon to questions submitted by Senators Coburn, Leahy, 

Cornyn and Kennedy ........................................................................................... 82

Responses of Gerald Reynolds to questions submitted by Senators Coburn 

and Cornyn ........................................................................................................... 104

Responses of Carol Swain to questions submitted by Senators Coburn and 

Cornyn ................................................................................................................... 112

Responses of Donald Wright to questions submitted by Senators Coburn, 

Cornyn, Kennedy, and Leahy .............................................................................. 115

Questions submitted by Senators Cornyn, Sessions, and Coburn to John J. 

Park, Jr. (Note: Responses to questions were not received as of the time 

of printing, March 15, 2007) ................................................................................ 126

SUBMISSIONS FOR THE RECORD 

Adegbile, Debo, Associate Director of Litigation, NAACP Legal Defense and 

Educational Fund, Inc., New York, New York, statement ............................... 129

American Constitution Society for Law and Policy, Pamela S. Karlan, Washington, D.C. ........................................................................................................... 154

Atlanta Journal-Constitution, Lynn Westmoreland, May 29, 2006, article ........ 177

Blum, Edward, American Enterprise Institute, May 2, 2006, article ................. 178

Canon, David, Professor, Department of Political Science, University of Wisconsin, Madison, Wisconsin, statement .............................................................. 180

Fitzpatrick, Duross, Senior Judge, U.S. District Court for the Middle District 

of Georgia, May 31, 2006, letter ......................................................................... 211

Page

IV

Keyssar, Alexander, Matthew W. Stirling, Jr. Professor of History and Social 

Policy, Chair, Democratic Institutions and Politics, Kennedy School of Government, Harvard University, Cambridge, Massachusetts, statement ........... 212

National Council on Disability, Lex Frieden, Chairperson, Washington, D.C., 

letter ...................................................................................................................... 222

Park, John J., Jr., Assistant Attorney General, Office of the Attorney General, 

Montgomery, Alabama, statement ...................................................................... 225

Pettus, Emily Wagster, Associated Press, article ................................................. 243

Republican Members of the U.S. House of Representatives, joint letter ............ 246

Reynolds, Gerald A., Chairman, U.S. Commission on Civil Rights, Assistant 

General Counsel, Kansas City Power & Light Company, Kansas City, Missouri, statement ................................................................................................... 252

Rosenberg, Steven L., County Attorney, County of Augusta, Verona, Virginia, 

letter ...................................................................................................................... 265

Swain, Carol, Professor of Political Science and Professor of Law, Vanderbilt 

University, Nashville, Tennessee, statement and attachments ....................... 267

Wall Street Journal, June 12, 2006, article ........................................................... 307

Wright, Donald M., General Counsel, North Carolina State Board of Elections, Durham, North Carolina, statement ........................................................ 309

(1)

REAUTHORIZING THE VOTING RIGHTS ACT’S 

TEMPORARY PROVISIONS: POLICY PERSPECTIVES AND VIEWS FROM THE FIELD 

WEDNESDAY, JUNE 21, 2006

U.S. SENATE, 

SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS AND

PROPERTY RIGHTS, COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The hearing was convened, pursuant to notice, at 2:07 p.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Sam 

Brownback (Chairman of the Subcommittee), presiding. 

Present: Senators Sessions, Cornyn, Coburn, Kennedy, and Feingold. 

OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Chairman BROWNBACK. Good afternoon. I hope this hearing will 

provide an opportunity for us to hear from people whose work requires them to think about and to implement the provisions of the 

Voting Rights Act on a regular basis. This is an historic piece of 

legislation, a very important piece of legislation. 

It is always helpful here in the Senate to hear from the people 

who are affected by the laws we pass. I hope each of you will share 

your thoughts on the necessity and practicality of reauthorizing 

certain key provisions of the Voting Rights Act which are set to expire in August of 2007. 

Virtually no right is more important than the right to vote. It is, 

quite literally, the bedroom for the representative democracy we 

enjoy today. We must enable American citizens to fully participate 

in the political process if we are truly to be a government of, by, 

and for the people. 

Out of a strong desire to achieve this goal, a bipartisan majority 

in Congress passed, and President Johnson signed, the Voting 

Rights Act in 1965. The aim of the Act two generations ago was 

to fulfill the democratic promise of the Civil War amendments to 

the Constitution, one left unmet for a century after that terrible 

war had ended. 

The civil rights landscape has greatly improved in this country 

since 1965, thanks in great part to the Voting Rights Act. The Act 

has resulted in a tremendous increase in the ability of minority 

citizens to fully and fairly participate in our political system, both 

as voters and as candidates. 

2

Over the years, Congress has made adjustments to the legislation to identify and address current conditions, so it is appropriate 

that we do our part in the 21st century to assess and improve the 

Act. 

The Voting Rights Act reauthorization bill currently pending before the Senate, S. 2703, recognizes the achievements of three other 

champions of the Civil Rights era: Fannie Lou Hamer, Rosa Parks, 

and Coretta Scott King; legendary names, legendary figures. I believe we have a responsibility to carry on the work of these great 

Americans. 

To that end, I have co-sponsored this important legislation which 

reauthorizes three basic parts of the Act which are set to expire 

next year. The first provision, which will expire in 2007, is Section 

5. 

This section provides that certain jurisdictions that had a history 

of discriminatory voting practices must obtain pre-clearance from 

the Department of Justice before making any change in their voting procedures. 

Also set to expire are Sections 203 and 4F4. Section 203 applies 

to jurisdictions in which a certain percentage of the voting aged 

population is deemed to consist of minority language speakers. It 

requires that such jurisdictions provide all voting notices and materials in these minority languages, as well as in English. 

Finally, Sections 6 through 9, which authorizes the Department 

of Justice to appoint examiners and observers to monitor election 

activities in certain jurisdictions, are set to expire. 

The importance of the Voting Rights Act and the need for Congress to exercise due diligence in reauthorizing it cannot be underestimated. We must proceed carefully to ensure the Act is properly 

reauthorized so that it both prevents civil rights violations and 

does not permanently punish jurisdictions that have rectified past 

discriminatory practices. 

As with prior extensions of the Voting Rights Act, Congress must 

ensure that the Act’s provisions are congruent and proportionate to 

the identified harms, for this is the constitutional standard the Act 

must meet when it is evaluated by the Supreme Court. 

I hope that our witnesses today will discuss the continuing need 

for this legislation, identifying possible improvements, and outline 

the steps we can take to ensure that every American—every American—has the right to participate in the voting process. 

I am delighted my colleagues are joining us today, and I turn the 

floor to Senator Kennedy. 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Senator Brownback, 

for chairing these hearings today. Our thanks to the Chairman of 

our Committee for continuing our committee’s focus on the reauthorization of the Voting Rights Act. 

It was important to take time to have these series of hearings 

to establish a strong record for reauthorizing this Act, and we have 

done that. I hope we can vote this bill out of Committee before the 

4th of July recess. 

3

During the hearings in recent weeks, arguments have been made 

for and against reauthorization. It has been argued that the trigger 

formula for Section 5 coverage is outdated, but the evidence presented to the Committee demonstrates that discrimination in voting persists in the jurisdictions covered by the Act, Mississippi as 

an example. 

The Justice Department has objected to 120 voting changes in 

Mississippi since the Section 5 was last authorized in 1982. This 

is roughly double the number of objections for the period before 

1982. 

The Committee heard similar testimony about recent discriminatory voting changes in Alabama, South Carolina, North Carolina, 

and Texas. 

University of North Carolina, Professor Nida Earles, testified 

that the Department of Justice had made a total of 682 Section 5 

objections in covered jurisdictions between 1982 and 2004, as compared to only 481 objections prior to 1982. In short, covered jurisdictions continue to propose discriminatory voting changes that can 

only be prevented through the pre-clearance process. 

Behind these statistics are the stories of the voters who were 

able to participate in the voting process because the Voting Rights 

Act protects their constitutional right to do so. 

For example, in 2001, the town of Kilmichael, Mississippi canceled its elections just 3 weeks before election day. The Bush Justice Department objected to the cancellation, finding that the town 

failed to establish that its actions were not motivated by the discriminatory purpose from electing candidates of their choice. 

The town had recently become majority African-American, and 

for the first time in its history several African-American candidates 

had a good chance of winning elected office. 

Section 5 prevented this discriminatory change from being implemented, and as a result, three African-American candidates were 

elected to the Board of Aldermen, and an African-American was selected mayor of Kilmichael for the first time. 

The fact the number of Section 5 objections is only a small percentage of total submissions should not be surprising. Jurisdictions 

take Section 5 into consideration when adopting voting changes, 

and many day-to-day changes are non-controversial. What should 

surprise and concern us is the fact that there continue to be objections and voting changes like the one in Kilmichael. 

It has also been argued that the Section 5 coverage formula is 

both over-and under-inclusive. The Act addresses that problem by 

permitting jurisdictions where Federal oversight is no longer warranted to bail out from coverage under Section 5. 

We have a letter from one of the jurisdictions that has taken advantage of the bail-out process, explaining that it did not find that 

process to be onerous. So far, every jurisdiction that has sought a 

bail-out has succeeded. 

For jurisdictions that should be covered but are not, the Act contains a mechanism by which a court may order a non-covered jurisdiction found to have violated the Fourteenth and Fifteenth 

Amendments to obtain Section 5 pre-clearance for its voting 

changes. As a result, the Act’s pre-clearance requirement applies 

only to jurisdictions for which there is need for such oversight. 

4

Some question why Section 203 is needed if naturalized citizens 

must learn English to become citizens. But as we learned from the 

hearing on Section 203, this rhetoric is misleading and unfair. Section 203 does not just help naturalized citizens, it also helps U.S. 

citizens born in Puerto Rico, on Native American reservations, and 

in Alaskan villages. We have an obligation to help these Americans 

to cast a meaningful and effective vote. 

We also heard testimony that English-language programs are 

heavily over-subscribed, forcing those who wish to improve their 

English to remain on waiting lists for years. Mr. Chairman, in my 

city of Boston it is two years now, and in cities across the country 

there is an equal amount of time to be able to participate. 

It is rather tragic that the Appropriations Committee cut back on 

the English-language training programs, this when we have been 

trying to deal both with the immigration issues, as well as the voting rights issue. It seems to me to have failed to recognize important priorities. 

These programs in the 203 are important because understanding 

instructions and the election process require more than a basic understanding of English. We went through a series of referenda that 

were on a number of different kind of ballots, and the complexity 

of some of these referenda, and we want people to be able to cast 

with informed judgments on these issues. 

We cannot complain about naturalized citizens not learning 

English when we strip English-language programs’ funding. We 

have conducted well-balanced hearings, different views have been 

presented, and the record is strong for reauthorization. It is time 

to move the bill forward. 

I thank the Chairman. 

Chairman BROWNBACK. Thank you, Senator Kennedy. 

Senator Feingold? 

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. I will have to 

leave in a few minutes because of the debate on the floor concerning Iraq, but I really do want to thank my friend, Senator Kennedy, for agreeing to serve as the Ranking Member for this hearing. He is about the busiest member of the Senate, so I do appreciate it. 

Thanks, also, to Senator Brownback, the Chairman of this subcommittee. Let me just say, very briefly, that those who work so 

tirelessly to ensure the Volting Rights Act’s enactment and reauthorization should take pride in the great success of the Voting 

Rights Act. We have seen the increased participation in elections 

by minority voters and the enhanced ability of minority voters to 

elect candidates of their choice. 

But I think Ted Shaw put it best when he stated in his testimony in an earlier hearing, ‘‘The Voting Rights Act was drafted to 

rid the country of racial discrimination, not simply to reduce racial 

discrimination in voting to what some view as a tolerable level.’’ 

That is why there is a continued need for the pre-clearance and 

minority language assistance provisions of the Act. I believe the 

5

cases were made quite powerfully for Chairman Specter’s reauthorization legislation. 

The Judiciary Committee has heard detailed testimony and several reports have been entered into the record documenting continued violations and attempts to violate the Voting Rights Act in covered areas. 

We know that Section 5 of the Act serves as a powerful deterrent 

to prevent violations in areas of the country with a history of systemic discrimination at the polls. We have heard about the impact 

of Section 203 and how it has empowered many voters with limited 

English proficiency to participate in our democratic process. 

I have been very impressed by the testimony of legal experts, 

such as Professor Pam Carlin, who presented strong arguments for 

the constitutionality of the Act. I do appreciate the deliberate and 

thorough manner with which the Committee is proceeding and I 

look forward to the committee’s considering the Chairman’s reauthorization bill in the coming weeks. 

Finally, let me thank the witnesses for being with us today. In 

particular, I want to welcome Professor David Canon from my alma 

mater, the University of Wisconsin, Madison. 

Thank you, Mr. Chairman. 

Chairman BROWNBACK. Thank you, Senator Feingold. 

Senator Cornyn? 

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

THE STATE OF TEXAS 

Senator CORNYN. Well, thanks, Senator Brownback, for chairing 

this important hearing. This is the seventh in a series of hearings 

in the U.S. Senate focused on reauthorization of expiring provisions 

of the Voting Rights Act. 

I am encouraged that we continue to study this enormously important and complex issue because I know we all will agree that 

the Voting Rights Act has been one of the most significant pieces 

of legislation passed in our Nation’s history to ensure full political 

participation of individuals who, in the past, sadly, and which is a 

national scar, have been disenfranchised. 

But it is imperative that we, in order to increase the likelihood 

that the U.S. Supreme Court, when it reviews our work, can ensure 

that we have done everything within our power to make sure that 

we can meet the standards that the Supreme Court has set out before, so that the legislation will ultimately operate as Congress has 

intended. 

We have a distinguished panel, obviously, and I will cutoff my 

remarks here so we can hear from them. But let me just say, in 

conclusion, I am delighted to see the Chairman of the U.S. Commission on Civil Rights with us today, Jerry Reynolds. In the past, 

the Commission has been an integral part of our analysis, and I 

look forward to hearing from him, as well as the other panel members. 

Thank you very much. 

Chairman BROWNBACK. Thank you, Senator Cornyn. 

I will introduce our panel now. First, is Debo Adegbile, Associate 

Director of Litigation for the NAACP Legal Defense and Education 

Fund. He works with direct litigation over CNAACP’s legal proVerDate 0ct 09 2002 11:43 Mar 15, 2007 Jkt 031269 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31269.TXT SJUD1 PsN: CMORC
6

grams and is actively engaged in voting rights litigation and advocacy. 

Next, we will hear from Gerald Reynolds, Chairman of the U.S. 

Civil Commission. Mr. Reynolds previously served as Deputy Associate Attorney General, U.S. Department of Justice, and Assistant 

Secretary of Education with the Office of Civil Rights. Mr. Reynolds has also served as president for the Center for New Black 

Leadership. 

The third witness is Don Wright, General Counsel for the North 

Carolina Board of Elections, a position he has held since 2000. He 

is active in the Election Center, the Nationwide Association of Election Administrators, and has served as an instructor for the center. 

We will then have Jack Park, who is here from the Office of the 

Attorney General in Montgomery, Alabama. Mr. Park graduated 

from Yale Law School in 1980 and has spent the last 11 years serving as an Assistant Attorney General and Deputy Attorney General. His practice focused on voting rights and First Amendment 

issues. 

Our fifth witness is Professor David Canon, Professor of Political 

Science, University of Wisconsin. He is the author of Race, Redistricting and Representation: The Unintended Consequences of 

Black Majority Districts, which earned him the American Political 

Sciences Association’s Richard F. Finno prize for the best book published on legislative politics in 1999. 

Our final witness is Professor Carol Swain. She is Professor of 

Political Science and Law at Vanderbilt. Professor Swain earned 

her Ph.D. from the University of North Carolina, Chapel Hill, and 

received her MLS from Yale Law School. 

She is the founder of the Veritas Institute, a nonprofit organization dedicated to promoting justice and reconciliation amongst people of different races, ethnicities, faith, traditions, and nations. 

It is an excellent panel. We will take all of your written testimony into the record as if presented. You are welcome to summarize. I am going to run the time clock at 6 minutes, if we could, 

to give you an idea. If you could stay around that, that would be 

great. Then we could get to questions and answers, if that is workable with you. I would appreciate it if you could run it that way. 

Mr. Adegbile, please. 

STATEMENT OF DEBO ADEGBILE, ASSOCIATE DIRECTOR OF 

LITIGATION, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC., NEW YORK, NY 

Mr. ADEGBILE. Thank you, Senator. 

Today I will offer a perspective on the view from the field, based 

largely on our experience in Louisiana. My written testimony 

speaks more broadly about our experience in other places, but I 

think that the view from Louisiana is particularly apt at the time 

as the Senate considers renewal of Section 5. 

I also want to touch briefly upon the operation of Section 5 as 

a deterrent. You have heard a great deal about it, but I think some 

recent contributions to the record illuminate some of those pieces 

in ways that are important. 

7

Finally, I will offer some policy perspectives and speak briefly to 

some of the issues surrounding the coverage formula, as this Committee has discussed those issues in detail. 

The view from Louisiana is very instructive. I want to focus on 

the experience with respect to the Louisiana House of Representatives, the State legislative House, the lower House of the State legislature, because in some sense it tells the story of the Voting 

Rights Act. 

We recently celebrated 40 years of the existence of the Voting 

Rights Act, and it is fairly remarkable, but it is true when I say 

that every single House redistricting plan for the Louisiana House 

of Representatives has initially been met by an objection from the 

Department of Justice. 

It began in 1971, and that process has continued through the last 

round of redistricting. Those objections have touched upon wide 

parts of the State. They have not only been concentrated in one 

part of the State, they have touched upon multiple areas of dilution 

and retrogression. They have taken the nature of evidence of intentional discrimination and discriminatory effects. 

The important thing to think about as we look at those objections 

in each of the decades that followed the renewal of the Voting 

Rights Act, is that but for Section 5, those voting changes, those 

redistricting plans would have gone into effect and would have 

served to minimize the opportunity of African-Americans in a State 

with a long and well-documented history of discrimination to participate in the political process. 

They would have been left to try to find lawyers to bring complex 

Section 2 cases, and all the while they would have suffered from 

discrimination that the legislative redistricting plans were either 

designed to implement, or had the effect of implementing. 

The experience in Louisiana is not exclusively limited to the Louisiana House, but I think because you can trace the line through 

those objections it is important. 

I will say just a word about a case I litigated, which was the last 

objection, which came in the form of a declaratory judgment action 

right here in Washington, DC. That case was remarkable, for a lot 

of reasons. 

First, the State tried to eliminate in toto an opportunity to elect 

district from Orleans Parish. There was no argument that there 

was an offset. There was no argument that there was influence 

being given to African-Americans. Political motivations and other 

motivations, in our view, led the legislature to eliminate a district 

altogether. 

I litigated that case on behalf of LDF, on the same side of the 

‘‘V’’ as the Department of Justice, and the Section 5 declaratory 

judgment action resulted in Louisiana withdrawing that discriminatory voting change and instead implementing a plan that restored the district. 

It is very significant to note that in that case there was substantial evidence of intentional discrimination, not the least of which 

was that the line drawers eliminated provisions of the redistricting 

guidelines that said that the State needs to follow the Voting 

Rights Act before they undertook to draft the redistricting plan. 

8

Moving for a moment to the deterrence piece, Professor Louis 

Fraga of Stanford University added a piece of evidence into the 

record that I think we need to focus on just briefly. Much has been 

made of the number of objections that exist in the record. In addition, we have talked a great deal about the extent to which the 

trend line of objections is diminishing. 

It is important to note that the Fraga study concludes that ‘‘More 

Information’’ requests—again, these are part of the Section 5 preclearance process where the Department of Justice, receiving a preclearance submission, does not have adequate information to determine the effect or intent of the submission, and they write a letter 

or they make a call seeking additional information to illuminate 

the operation of the contemplated voting change. 

What Fraga found is that when you analyzed these ‘‘More Information’’ requests, a number of things happen: occasionally voting 

changes are withdrawn, at other times, they are superseded, and 

at other times they are simply abandoned. 

But the net result, and this is the significant finding, is that the 

‘‘More Information’’ letters result in 51 percent more voting 

changes being stopped than when you simply count objection letters alone. 

I will not dwell on that report because it is in the record, but I 

think it is important to note it so that we can have a more full understanding of how Section 5 operates to deter voting discrimination, as well as block it. 

Finally, I want to touch just briefly on my view of one of the important policy issues that is before this committee. Senator Kennedy mentioned that some talk has been had about the coverage 

formula and whether it needs modifying in some way. I would submit that neither the law, nor practical considerations, suggest that 

the coverage formula needs to change. 

As a legal matter, there is nothing in the Supreme Court precedents that counsels change. The coverage formula has been upheld 

numerous times by the Supreme Court. It is a formula that has 

from the beginning, in some respects, been imperfect, but been fair 

at targeting areas of the country with dramatic evidence of discrimination. 

The Supreme Court has repeatedly upheld that formula, most recently in the case of Lopez v. Monterey County, which was decided 

after the court’s decision in Boerne, which seemed to limit Congressional power to enact enforcement provisions. 

From the practical side, it is important to note that the statute, 

as it exists, has ways into coverage and ways out of coverage. Section 3(c) allows courts, where they find evidence of discrimination 

of a serious kind, to bring districts within the ambit of coverage. 

Similarly, there is a bail-out provision—and Senator Kennedy 

spoke of a letter that was recently entered—that talked a little bit 

about one jurisdiction’s experience. Taken together, neither practical considerations nor the law of the Supreme Court require 

changes to the coverage formula at this time. 

I thank you for your time. 

Chairman BROWNBACK. Thank you very much. 

[The prepared statement of Mr. Adegbile appears as a submission for the record.] 

9

Chairman BROWNBACK. Mr. Reynolds, the Chairman of the U.S. 

Civil Rights Commission. 

STATEMENT OF GERALD A. REYNOLDS, CHAIRMAN, U.S. COMMISSION ON CIVIL RIGHTS, ASSISTANT GENERAL COUNSEL, 

KANSAS CITY POWER & LIGHT COMPANY, KANSAS CITY, MISSOURI 

Mr. REYNOLDS. All right. At the outset, I would like to discuss 

two housekeeping matters. It is possible that I may have to leave 

early, and I would just like a dispensation if that is necessary. 

Also, I have revised the testimony that I have submitted. I would 

like my revised testimony to be entered into the record. 

Chairman BROWNBACK. Without objection. 

Mr. REYNOLDS. Thank you. 

[The prepared statement of Mr. Reynolds appears as a submission for the record.] 

Mr. REYNOLDS. Mr. Chairman, members of the subcommittee, I 

am Gerald Reynolds and I have served as the Chairman of the U.S. 

Commission on Civil Rights since December of 2004. 

The Commission is an independent, bipartisan agency established by Congress in 1957 to, among other things, investigate complaints alleging that citizens are being deprived of their right to 

vote by reason of their race, color, religion, sex, age, disability, national origin, or by reason of fraudulent practice. 

The Commission has been called the conscience of the Nation on 

civil rights matters and was instrumental in providing the evidence 

of pervasive discrimination in voting that led to the passage of the 

Voting Rights Act in 1965. 

I am pleased to appear before you today to discuss Section 5, one 

of the temporary provisions of the Act, in light of the Commission’s 

historical and its early development and subsequent reauthorizations. 

At this point, I would like to just discuss the fact that in the 

past, before any major piece of legislation was passed, there was 

a discussion as to the constitutionality of the proposed legislation. 

I think that that was a practice that was important. The reauthorization of Section 5 demonstrates why that tradition is extremely 

important. 

As the Supreme Court has stated in South Carolina v. 

Katzenback, ‘‘The constitutional propriety of the Voting Rights Act 

of 1965 must be judged with reference to the historical experience 

it reflects.’’ 

In other words, the facts that were on the ground, the facts that 

persisted when the Voting Rights Act was enacted, are extremely 

important. 

Now, the factual predicate at the time of its enactment as one 

of persistent defiance on the part of the South of constitutional 

commands and Federal legislation aimed at securing the right to 

vote for blacks. 

A 1961 Commission report identified 100 counties across the Nation where black Americans were preventing from voting by outright discrimination, by fear of physical violence, or by economic reprisal, and pervasive and unlawful violence by police officers and 

others used to repress voting rights. 

10

Such invidious practices has driven down the average registration rate for black citizens in the covered States down to 29 percent. After the demise of the institution of slavery with the end of 

the Civil War and the adoption of the Thirteenth Amendment, the 

South imposed a racial caste system. 

A central element of this racial caste system was the disenfranchisement of blacks residing in the South. In defiance of the Fifteenth Amendment, numerous Federal statutes and court orders, 

and over the course of nearly 100 years, Southern States refused 

to permit appreciable numbers of blacks to vote. 

Each time the Federal Government issued an order or enacted 

legislation to make the right to vote a reality for blacks, Southern 

States would circumvent the law. This aspect of the racial caste 

system, this open defiance of the Constitution, persisted for almost 

100 years. 

This led Congress to conclude that the unsuccessful remedies 

which had been prescribed in the past had to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment. 

The pre-clearance requirement of Section 5 was included among 

those sterner measures. The court conceded that Section 5 was ‘‘an 

uncommon exercise of Congressional power.’’ 

As Columbia Law Professor Samuel Icharoff notes, ‘‘Section 5 is 

an extraordinary intervention that permits the Federal Government to overcome their normal presumption of State autonomy and 

respect for Federal.’’ 

To put it another way, it created a system where the Federal 

Government created a presumption of illegality. Any change offered 

up by a covered State was presumed to be unconstitutional. 

That is a radical departure from what we did in the past, but it 

is a radical departure that was necessary in 1965. But the question 

before you is, is that remedy, that radical remedy, justified in the 

21st century? 

Despite the extreme mature of the Federal remedy in this context, the court has recognized that exceptional conditions can justify legislative measures that would not be otherwise appropriate. 

The question we face within addressing the reauthorization of Section 5 is whether these exceptional conditions exist today. 

Beginning in October of 2005, the Commission amassed an extensive record of testimony from noted experts in the field, thousands 

of pages of documents from the Justice Department provided to the 

Commission, and relevant court decisions. 

We published our findings and recommendations on the issue in 

both our statutory report entitled ‘‘Voting Rights Act Enforcement 

and Reauthorization,’’ and in a briefing report entitled ‘‘Reauthorization of the Temporary Provisions of the Voting Rights Act.’’ I ask 

that these be included in the record for this hearing. 

Chairman BROWNBACK. Without objection. 

Mr. REYNOLDS. Based on this record, we found the following. In 

those covered jurisdictions, we have seen black registration for voting rights substantially increase over the last 40 years. 

Data presented to the Commission suggests that Southern blacks 

register and vote at rates comparable to, if not higher than, the 

rest of the Nation. Research also indicates that since 1984, black 

11

registered voters have closely tracked with the voting-aged population in the original Section 5 States. 

I would like to conclude by saying that what we have to ask ourselves is, looking at the discrimination that exists today, my point 

of view is that the notion that we will eventually reach a point 

where there is no discrimination, that we will never reach that 

point because of the human condition. For whatever reason, we—

some of us, at least—will find a reason to make distinctions based 

on race and other invidious bases. 

The bottom line is, if the Supreme Court were asked to weigh in 

on the constitutionality of the Voting Rights Act looking at today’s 

facts, it is not clear to me that we have those exceptional conditions 

that justified this extraordinary remedy back in 1965. 

Thank you. 

Chairman BROWNBACK. Thank you very much, Mr. Reynolds. 

Our third witness is Don Wright, General Counsel for the North 

Carolina Board of Elections. 

Mr. Wright? 

STATEMENT OF DONALD M. WRIGHT, GENERAL COUNSEL, 

NORTH CAROLINA STATE BOARD OF ELECTIONS, DURHAM, 

NORTH CAROLINA 

Mr. WRIGHT. Thank you, Mr. Chairman and members of the subcommittee. I appreciate the invitation to appear. 

My presentation is going to be from the practical aspect, from a 

general counsel who deals with Section 5 matters almost on a daily 

basis. I will not give you a lot of fancy court cases and theories. 

I am going to try to give you how it is to deal with the Voting 

Rights Act on a regular basis. 

I must give a disclaimer. I am general counsel for the State 

Board of Elections. The State Board of Elections is a bipartisan 

group of five individuals, appointed by the Governor, in charge of 

all elections in North Carolina. 

I do not state the opinion of my State Board here today. This is 

my personal opinion, so whatever I state cannot be presumed to be 

the opinion of the State Board of Elections. 

When I was appointed general counsel of the State Board of Elections in September of 2000, I was a little afraid of what I would 

find when I started dealing with the Federal bureaucracy with the 

U.S. Department of Justice. 

It has been the most pleasant surprise. I found out they were 

human, that they would actually return phone calls, they responded to e-mails, and they were realistic in dealing with situations. 

I quickly developed a working relationship with Chris Herron, 

who was assigned to North Carolina pre-clearance matters, and 

worked with Chris until this last April, when he was promoted and 

a new person was appointed, Yvonne Rivera. She initiated a phone 

call to me to say, ‘‘I am your new representative at the Department 

of Justice. Anything you need, any expedited help, just give me a 

call.’’ We exchanged e-mails. 

It has been my experience from the beginning that, I have never 

had any difficulty getting expedited pre-clearance or any reasonable cooperation from the U.S. Department of Justice. I think the 

12

Senate should be proud of the way that Department of Justice, and 

the Voting Rights Section, has worked on pre-clearance matters. 

In my national meetings with other election administrators, I 

never heard a complaint that on the day-to-day submissions—

which we have got to remember, that is the bulk of what they deal 

with, not the headline redistricting cases, but the day-to-day submissions—that Justice does not do an excellent job in working with 

the States. 

The responsibilities for submission of pre-clearance is set out in 

North Carolina statutes. My responsibility as general counsel for 

the State Board of Elections is to submit all State-wide statutes 

and all policies and procedures of the State Board of Elections, and 

we make rules and administrative guidelines and send them to Department of Justice for pre-clearance. 

I do quite a bit of that, and as such I have developed, on my computer, formatted letters. I will be honest with you, if push comes 

to shove, I could probably knock out a pre-clearance on a routine 

matter in a half an hour. 

That is because of the Federal regulations, which set out 

preclearance submission requirements. They are various differences, of course, in submissions, but the heart and soul of the 

submission, the format, is the same so I can easily get it out. 

As a matter of practice, I not only send the pre-clearance submission by mail, but I fax the preclearance submission if it needs to 

be expedited. For instance, if a polling place burned down 2 days 

before the election, I am on the phone with Department of Justice. 

Very often, I can get that pre-clearance there on the phone, subject 

to them sending a letter, of course, later on. 

So I want you to understand, at least based on North Carolina’s 

experience—I have not heard different from other States—that the 

way preclearance is administered by the Department of Justice is 

very efficient. I have no reason to believe that that would not continue, and I hope it will continue. 

So the submission of pre-clearances—and I am talking about the 

routine clearances—has become routine, at least in North Carolina. 

Now, there are other types of pre-clearances, such as annexations, dealing with municipalities. It may be a little more extensive. The Department of Justice rules talk about providing additional information for those pre-clearances. That will take more 

than a half hour. 

But keep in mind, the annexation pre-clearance submissions and 

the submissions on redistricting are infrequent, much more infrequent, than the routine submissions which the Department of Justice gets, such as polling place changes, precinct changes, and special election dates. 

So is the current set-up a burden upon the average State or jurisdiction in regards to submission? I would contend it is not. In 

preparing for a presentation last year before a group here in Washington, I said, well, I do not feel too comfortable speaking for all 

county election directors. I said to myself, I will just take an informal survey. 

I talked to 12 county Directors of Elections in North Carolina—

we have got 40; Section 5 covered counties out of the total of 100 

North Carolina counties—and said to the county director. ‘‘Look, do 

13

you think Section 5 is much of a burden upon you? Speak frankly 

with me.’’ 

The vast majority—I mean, I had one negative comment—but everybody else said, we like it. I said, why do you like it? They said, 

well, it gives us protection. It gives us, for lack of a better term, 

a seal of approval, that we have got Justice saying what we are 

doing is right. They said, if anybody complains to us, we tell them 

to call Washington. And they do, I understand, call Washington. 

Also, too, it prevents litigation. It stops it. Some of the comments 

I received you might find interesting. These come from county election directors, not from me: ‘‘I would hate to operate without it,’’ 

referring to Section 5; ‘‘pre-clearance requirements are ‘routine’ and 

do not occupy an exorbitant amount of time, energy or resources;’’ 

‘‘I can always fall back on Section 5, that is protection’’; and ‘‘it allows us opportunity to assure the public that minority rights are 

being protected and that someone is independently validating these 

decisions.’’ These comments come from County Elections Directors, 

not from an attorney. 

Then, finally, a county stated, ‘‘The history of lll County, 

calls for our operations to be scrutinized, and rightly so. The first 

black to serve on my Board of Elections was in 1991.’’ 

So from, for lack of a better term, from the ‘‘trenches’’, where the 

people deal on a day-to-day basis with pre-clearance, at least in 

North Carolina, we do not consider Section 5 burden. We would encourage the renewal of Section 5. 

Thank you. 

Chairman BROWNBACK. Thank you very much for the very practical testimony. 

[The prepared statement of Mr. Wright appears as a submission 

for the record.] 

Chairman BROWNBACK. Mr. Park, from the Office of the Attorney 

General in Alabama. 

STATEMENT OF JOHN J. PARK, JR., ASSISTANT ATTORNEY 

GENERAL, OFFICE OF THE ATTORNEY GENERAL, MONTGOMERY, ALABAMBA 

Mr. PARK. Mr. Chairman and members of the subcommittee, 

thank you very much for the opportunity to speak this morning. 

In addressing the committee, I draw on my experience, which includes litigation about Section 5 issues, redistricting matters, voting rights, and the preparation and consultation regarding submissions that are made by the State of Alabama. 

I have prepared submissions, I have litigated over their adequacy. One of the things that I learned in that process, is that Section 5 does not sleep. If we have successfully submitted something 

for pre-clearance, it is subject to attack down the road on the 

ground that we did not adequately identify the change for the Department of Justice. We learned to our dismay that pre-clearance 

that had been obtained, in one case, in 1984, and again in 1998, 

was not adequate with respect to litigation in 1999. 

Our office handles State statutes and general applicability that 

affect voting. We are the ones who submit it for pre-clearance. The 

duty is that of an Assistant Attorney General, and it is an extra 

duty. 

14

We try to have local jurisdictions take care of their own submissions. As Mr. Wright suggested, there is a template, but I respectfully suggest that it would be difficult to make a submission, even 

of a routine matter, in an hour. 

I brought a couple of submissions that are short, just as demonstrative exhibits. In one instance, we made a submission that relates to two constitutional amendments at the county level, and we 

just asked to put them on the ballot. The substance of neither 

amendment related to voting, so all we needed to do was ask U.S. 

DOJ to put these questions on the ballot. 

The second one is, likewise, small, about 25 pages, and it is a redistricting submission for the town council of the town of Lipscomb, 

outside Birmingham, Alabama. Actually, it is a city. It is a city of 

some 3,000 people. 

Ordinarily, an Assistant Attorney General for the State of Alabama would not handle a matter like the pre-clearance of the city 

council plan for a city. Lipscomb, however, was an orphan jurisdiction with limited funds. 

I went to Lipscomb, met with the town council, and suggested 

what they ought to do. They came to Montgomery, they looked at 

the computer, they prepared the plan, and I submitted it for them. 

In addition, we talked about the major submissions, redistricting. 

In 2000, the State of Alabama successfully enacted redistricting 

plans for its State Senate, State House of Representatives, State 

Board of Education, and its Congressional delegation and submitted each of those new plans for pre-clearance, and obtained preclearance. 

I brought with me the submissions that relate to the State Senate plan. It is eight volumes of material. It includes alternate 

plans. It includes testimony before committees that went throughout the State before the process was under way to take testimony. 

It took a substantial amount of time to do this. I am the one who 

wrote the letter. I worked with other folks to write the letter. Of 

course, the first 90 percent of the letter took 50 percent of the time. 

But this submission was the bell cow, it is the one that drove the 

train. 

The House submission incorporated some of these materials, otherwise the House submission would have been equally big, and the 

Congressional submission incorporated these materials. So, too, did 

the State Board of Education submission. These are exceptional, 

but they are representative of the amount of work. 

What I would like to suggest to the committee, is that things 

have changed and the Committee should not view the Act as a oneway ratchet. The States have changed their behavior. 

It is measured by voter participation, it is measured by the participation of African-Americans in government. Eight of the 35 

members of the Alabama Senate are African-American; 27 of the 

105 members of the Alabama House of Representatives are African-American. 

There are African-American members of county commissions, 

county Boards of Education, and town municipality governing bodies throughout Alabama. There are African-Americans who have 

served by appointment on the State Supreme Court, but they have 

15

not been elected State-wide. There are African-American cabinet 

members. 

What I would suggest, is that the Committee find some way to 

loosen the scrutiny of Section 5 without necessarily abandoning the 

scope of it. The Committee should consider removing de minimis 

changes from the coverage of the Act. 

We have to ask to move polling places. We have to ask to include 

constitutional amendments on regularly scheduled elections. We 

have to schedule special elections. 

Those, properly viewed, do not have much potential for discrimination, and if somebody did not like what we did they should sue 

us, but we should not be put in the position of asking U.S. DOJ 

for permission to do this when they never object. 

Second, you should consider moving the date for determining 

when a change occurs from 1964 to the present. If I have to defend 

a lawsuit and I talk to State election officials, they can tell me 

what happened as long as they have been in office, and that is usually 10, 15 years. After that, I have to go to the archives, and they 

will not necessarily provide the answer. 

Third, with respect to bail-out, the Congress should make certain 

that all covered entities, not just jurisdictions, be entitled to bail 

out. The political parties of the State of Alabama are both covered 

entities. 

The Republican party has never had an objection. The Democrats 

and Republicans both want African-American votes. They do not 

have any interest in reducing their participation. But they, because 

they are not political subdivisions, cannot seek bail-out. I respectfully suggest that there is a constitutional problem with that possibility. 

Finally, I think that the period proposed of 25 years is simply 

longer than necessary. Congress should revisit this in a substantially shorter period. Thank you very much. 

Chairman BROWNBACK. Thank you, Mr. Park. 

[The prepared statement of Mr. Park appears as a submission for 

the record.] 

Chairman BROWNBACK. Senator Kennedy? 

Senator KENNEDY. Mr. Chairman, this is a very useful and helpful panel. I necessarily have to absent myself, and I would like to 

submit some written questions, if I could, and get answers for the 

record. 

Chairman BROWNBACK. Absolutely. 

Senator KENNEDY. I thank all of the panelists for their presence 

here today. Thank you. 

Chairman BROWNBACK. Yes. Thank you, Senator Kennedy. 

Thank you for your participation and your long-time support for 

the Voting Rights Act. You have been involved in it for some period 

of time, you and your family. Thank you. 

Professor David Canon? 

STATEMENT OF DAVID CANON, PROFESSOR, DEPARTMENT OF 

POLITICAL SCIENCE, UNIVERSITY OF WISCONSIN, MADISON, 

WISCONSIN 

Mr. CANON. Thank you, Mr. Chairman and members of the committee. Thank you for inviting me to testify this afternoon. 

16

I will focus my comments today on something we have not heard 

about yet today, which is the so-called Ashcroft Fix, which would 

restore the standard for retrogression to what it was before the 

Ashcroft v. Georgia decision. 

But, first, let me say a few words about the necessity of extending Section 5 of the Voting Rights Act. Much of this has been covered by witnesses already, so I will not spend much time on this. 

But basically, the critics of Section 5 argue, in part, that preclearance is no longer needed because of the success that minority 

voters have had in electing candidates of their choice in covered 

districts. 

But if you look at the actual evidence, the data, there is really 

not much empirical basis for optimism on the success that minority 

voters have had in being elected in white-majority districts. 

The exceptions are exceptional because they are so rare. If you 

look at all of the elections and House districts from 1965 up 

through 2004, over 8,000 House elections, only 49 of them involved 

African-Americans elected in white-majority districts. That is less 

than six-tenths of 1 percent. 

If you look at covered districts, the evidence is similar. In fact, 

you have a gap of over 100 years for most of the covered States, 

from the end of reconstruction up through the 1980’s and 1990’s, 

when no African-Americans were elected from covered States at all 

for that period of over 100 years. 

So, clearly, the idea that we have had more success is true, but, 

still, it almost exclusively happens in majority/minority districts, 

which raises the importance then of maintaining the pre-clearance 

provision of Section 5, that you would not have had the creation 

of the black-majority districts in 1992 that led to the election of 

large numbers of African-Americans to the U.S. House without that 

pre-clearance provision, without the Justice Department telling 

States that they needed to create these black-majority districts. So 

that, I think, is very strong testimony in favor of extending the 

Section 5 pre-clearance provision. 

Another thing that some critics have mentioned in terms of the 

context of Section 5, is that because of the extremely low rejection 

rate by the Department of Justice, this indicates that, again, Section 5 is no longer needed. 

Well, we have heard from witnesses today, and saw already in 

the written testimony, that the deterrent effect of Section 5 itself 

prevents some things from happening that otherwise would have. 

So if you remove Section 5 pre-clearance, that deterrent effect 

would no longer be there. You would have, I think, more violations 

that would require people who are harmed by the discriminatory 

practices to sue, and in many cases they would not have the resources to do so, so the practices would go into effect. 

Finally, on the issue of the low rejection rate, the focus on the 

low rejection rate ignores the extent to which many of the objections do concern very important violations of the Voting Rights Act. 

So while they are relatively small in number, they are very important in terms of significance. 

So with the remainder of my time, I want to focus on, again, the 

Ashcroft Fix. Specifically, in the Senate bill that you are considVerDate 0ct 09 2002 11:43 Mar 15, 2007 Jkt 031269 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\31269.TXT SJUD1 PsN: CMORC
17

ering, 2703, this would restore the standard for retrogression to 

what was in place before Georgia v. Ashcroft. 

The proposed legislation would clarify the purpose of Section 5 

of the Voting Rights Act, to protect the ability of minority citizens 

to elect their preferred candidates of choice rather than allowing 

the ability of elective districts to be traded off against influence districts the way that the Ashcroft decision would allow. 

I support this clarification of Section 5. I see two main reasons 

that the totality of circumstances test of Georgia v. Ashcroft should 

be overturned. 

First of all, the test is vague and unworkable. I think it is just 

a practical nightmare in terms of how you would actually go about 

measuring the relative power of African-American voters to have 

their voice heard in the representative process. It is a whole new 

ball game that the court is asking us to engage in here, and I think 

it would be very difficult. 

Second, allowing influence districts to be traded off for ability to 

elect districts would erode the gains in opportunities to elect candidates of choice that have been made in Congress for the last 40 

years. 

Let me elaborate a little bit more on the first point. Because time 

is running out, I will not talk so much about the second point. But 

on the first point, in terms of the ‘‘vague and unworkable’’ standard, having something to try to measure representation in Congress that would require you to balance a certain number of influence districts versus a certain ability to elect districts requires us 

to do a tremendous amount of work on actual legislative behavior: 

now, what are members of Congress doing? What are State legislators doing for their constituents, on behalf of their constituents? 

So while some people propose fairly simple roll call analysis that 

just looks at votes, that is actually not adequate to look at the entire representative record. When you look at the entire representative record, it takes, literally, hundreds of hours to examine not 

only roll call votes, but also proposed legislation. What are they 

doing in terms of constituency service? How are the representatives 

of their staffs in terms of minority representation, and so on? 

So one attempt of this was my work in the remand of the Georgia v. Ashcroft case, where I did make an effort to measure influence districts the way the majority of the Supreme Court dictated 

us to do. 

So to do that, I went and looked at all 1,500 bills that have been 

proposed in the Georgia State Senate, which was the legislature in 

question, between 1999 and 2004 in terms of their racial content 

and whether or not they were representing racial interests. 

What I found in that case, is African-American State Senators 

had a far higher rate, about 40 percent, of their proposed legislation that had some racial content, while compared to about 3 percent for the white Republican Senators, and ranged from 5 to 19 

percent for the white Democrats. 

The thing that was the strongest bit of evidence on this question 

of responsiveness, was that the white State Senators, both Democrats and Republicans alike, were not responsive to increases in the 

percent of black voters in their districts. 

18

In other words, if you had a white State Senator who was a 

Democrat in a district that is 5 percent African-American, he or 

she behaved no differently than in one with 40 percent AfricanAmericans. So, they were not being responsive to the needs of African-American constituents in their districts. 

I think if you would maintain the Georgia v. Ashcroft decision it 

would be extremely harmful to minority interests, so I strongly endorse the Ashcroft Fix, which would restore the retrogression 

standard to the pre-Ashcroft standard, which was focusing on the 

ability to elect. I think that is where that focus should be. 

Thank you very much. 

Chairman BROWNBACK. Thank you very much. An interesting 

analysis, Professor Canon. 

Professor Carol Swain of Vanderbilt University. We appreciate 

very much your being here. 

Professor Swain? 

STATEMENT OF CAROL SWAIN, PROFESSOR OF POLITICAL 

SCIENCE AND PROFESSOR OF LAW, VANDERBILT UNIVERSITY, NASHVILLE, TENNESSEE 

Ms. SWAIN. Thank you, Mr. Chairman and members of the subcommittee. I would like to begin by clarifying why I believe I was 

invited to speak, and that is because I am the author of a book entitled, Black Faces, Black Interests: The Representation of AfricanAmericans in Congress, which was published in 1993 by Harvard 

University Press, reprinted in 1995 with an expanded edition, and 

reprinted again in 2006 by University Press of America. 

Black Faces, Black Interests book won three national prizes, including the prize for best book published in the United States, the 

Woodrow Wilson Prize, which is the highest prize that a political 

scientist can win. It also won the D.B. Hardeman Prize for the best 

book on Congress for a biennial period, and it was co-winner of the 

V.O. Key Prize. 

Mr. Canon and some of the other witnesses, have published 

works that are derivative. I would like to establish that I am not 

a lawyer, but I have written a book that many people consider important. 

In Black Faces, Black Interests, I argue that political party is 

more important than the race of the representative. As long as African-Americans hold the views that they do, they are best represented by Democrats. Consequently, I have questioned the drawing of the majority-black districts and pointed out that such a 

strategy was likely to add to the growth of the Republican party, 

and that black interests were best served when there are more people in office to support a particular agenda. 

I made a distinction between descriptive representative, more 

black faces in office, and substantive representation, more people 

who vote for your agenda. 

I believe that substantive representation is far more important 

than descriptive representation and that voters are best served by 

having more people in office, regardless of their race, that can support the things that the care about. 

I come here strongly in favor of the reauthorization of Section 5. 

I believe that we should be concerned about voter discrimination 

19

whenever and wherever it occurs, and there is plenty of evidence 

that it occurs nationwide. I would like to see Section 5 reauthorized 

and strengthened so that there would be nationwide protection beyond what is offered with Section 2. 

I would also like to see the bail-out process for covered jurisdictions streamlined so that those jurisdictions with established 

records of compliance, can more easily bail out. We could perhaps 

include some type of probationary period so that if jurisdictions are 

found in violation again they would immediately come under coverage again. Overall, I think we should reward good behavior and 

punish bad behavior. There are many places outside the covered jurisdictions where discrimination occurs. 

Moreover, unlike Professor Canon, I believe that Georgia v. 

Ashcroft was a good decision. I believe it was a good decision because it was one of those rare moments where politicians moved 

beyond their own narrow self-interests. 

Every major black elected Democrat in Georgia, except one, argued in favor of unpacking the majority-black districts. These elected officials acknowledged that the world has changed significantly 

since 1965, and that race is no longer a major barrier to the election of black Democrats in the south. 

These black Democrats supported the enactment of influence districts and the unpacking of majority black ones. The Voting Rights 

Act was never intended to guarantee the election of a politician of 

a particular race or ethnicity. 

Instead, the VRA was supposed to ensure the representation of 

the interests of the people, and those interests can be represented 

by politicians of any race. Many of the issues that politicians frame 

as being about race, even something as salient as felony disenfranchisement, are not really about race. 

If anything, it is more about social class and educational levels. 

This applies to the death penalty, the people on Death Row. You 

do not find rich people on death row. You find people who are poor 

whites, poor blacks, and poor Hispanics. 

A lot of the issues that Congress frame and the nation as being 

about race, are not about race, they are about social class. We can 

have better legislation that protects the interests of all voters if we 

stop framing everything as being about race. 

Yes, the Voting Rights Act has to be reauthorized, and it has to 

be strengthened. I believe that 25 years is a long time. Many of us 

will not be around in 25 years. The nation is changing dramatically 

in its demographics: there are growing numbers of Hispanic voters. 

Hispanics are the fastest-growing group; the Asians are also growing. Nationwide, all voters need their voting rights protected. 

By 2050, it has been estimated that whites may be a minority 

in this Nation. It is crucial for us to have national comprehensive 

voting rights legislation. Yes, Section 5 should be reauthorized, it 

should be strengthened. And Georgia v. Aschcroft should be allowed 

to stand. Thank you. 

Chairman BROWNBACK. Thank you very much. 

[The prepared statement of Ms. Swain appears as a submission 

for the record.] 

20

Chairman BROWNBACK. Well, I expect a spirited questioning session here. We have got quite a few opinions that have been put forward, and that is useful as we look at this piece of legislation. 

Let us run 5 minutes on questions. If we need another round, we 

will do that. 

Mr. Reynolds, I am a little uncertain on your testimony. You 

were saying that the situation to extend Section 5 is not there 

today. Now, am I understanding you to say by that then we do not 

need Section 5 today, or you are supporting changes to Section 5? 

I just want to get that clarified. 

Mr. REYNOLDS. All right. In 1950, a black man goes to the Registrar’s office to try to register. 

Chairman BROWNBACK. My time is real short. 

Mr. REYNOLDS. I am sorry. Senator Brownback. Do we have the 

situation today to do this? 

Mr. REYNOLDS. The facts on the ground today are quite different 

from the facts that existed when the Voting Rights Act was passed. 

I cannot, with a straight face, conclude that blacks today live under 

the same repression that existed in the South. 

As I started out in my testimony, we are talking about a racial 

caste system that was put into place across the South. That racial 

caste system—— 

Chairman BROWNBACK. Nobody would dispute that. But do we 

extend Section 5 or not? 

Mr. REYNOLDS. I am not speaking for the Commission. I would 

say no. The only way that the Voting Rights Act is constitutional, 

in my view, is if we conclude that the factual predicate that justified it in the first place is still there. I do not think that that is 

the case. 

However, this is about politics, and politics is about compromise. 

There are lots of things that we can do. If there is a substantial 

number of folks who want to reauthorize the Voting Rights Act, 

there are many fixes; Professor Swain mentioned one. 

Similarly situated citizens should be treated the same, so if you 

are a black living in a jurisdiction that is not covered, it seems to 

me that that black, or any American, should have the same constitutional and statutory protections as someone living in a covered 

jurisdiction. 

Chairman BROWNBACK. I think that is an excellent point. 

I want to move to, what about the 25-year extension? Do you 

think it should be extended for 25 years? Others are suggesting a 

5-year extension. 

Mr. REYNOLDS. I think that a 5-year extension, or a 10-year extension would be preferable. I also believe that the trigger needs 

to be updated. Currently, the trigger is key to the 1964 elections. 

I believe that is bordering on being irrational—— 

Chairman BROWNBACK. Yes. 

Mr. REYNOLDS. [Continuing]. To have a trigger that is grounded 

at a particular point in time without taking into account the sea 

change that has occurred in American society. 

Chairman BROWNBACK. All right. 

Now, I want to quickly go on to the minority/majority seats orientation. Ms. Swain, if I am understanding you correctly, you do 

not think that is a good idea, presently. Or correct me. 

21

Ms. SWAIN. I will tell you what I believe. I believe that race is 

no longer a major barrier to the election of black elected officials, 

especially in traditionally Democratic districts. One reason why we 

do not have more black elected officials in majority-white districts 

is that they are discouraged from running; it is very difficult to 

raise funds. 

If parties wanted to increase the number of minorities elected in 

majority-white districts, they would cough up more money for campaigns, because it is very expensive to run in such a district. 

Chairman BROWNBACK. It is. But I want to get to a fine point 

on this. So you do not like majority/minority designation districts. 

Is that correct? Do you disagree with that? 

Ms. SWAIN. No, it is not that. 

Chairman BROWNBACK. Then you do support that? 

Ms. SWAIN. No, I am not saying, no, that I do not dislike them. 

I am saying that it is not the only way to elect blacks to Congress. 

Chairman BROWNBACK. I understand that. 

Ms. SWAIN. There is too much focus on it. 

Chairman BROWNBACK. I am just trying to get to a point here 

about whether you support this design or not. 

Ms. SWAIN. I do not support them as being esential to the election of minority politicians. I think influence and coalitional districts are more important for the Nation as a whole, and more 

practical. 

Chairman BROWNBACK. All right. 

Now, quickly, because I am short on time, Professor Canon, you 

disagree. You think you need majority/minority seats, and that the 

proof is that you do not elect minorities without them. Is that correct? 

Mr. CANON. Correct, with one important change in terminology. 

Rather than ‘‘majority/minority,’’ ‘‘ability to elect.’’ Ability to elect 

is the legal thing to focus on, and that truly is the practical thing 

to focus on as well. 

If you have sufficient cross-over voting and sufficiently low levels 

of racially polarized voting, it is quite possible to elect AfricanAmericans in districts that may only be 40, 45 percent AfricanAmerican. So that is what the flexibility of the ‘‘ability to elect’’ 

standard allows you to do, is that it is a case-by-case kind of analysis. 

Chairman BROWNBACK. All right. 

Mr. CANON. So majority/minority is essential most of the time, 

but ability to elect is the key thing. 

Chairman BROWNBACK. So you support majority/minority, but 

you want to rephrase how that is defined then so that it can be 

easier to elect minorities? 

Mr. CANON. No. I was just saying, to urge the focus on the actual 

language of S. 2703, which is the ability to elect. In the standard 

to restore the retrogression standard of what it would be before 

Ashcroft, the actual language of the proposed legislation is on ability to elect, not on majority/minority. So I was just saying that that 

should be the legal focus here. 

Chairman BROWNBACK. All right. 

Mr. CANON. In practical terms, it often does take a majority/minority district, but does not require it. 

22

Chairman BROWNBACK. All right. Thank you. 

Senator Cornyn? 

Senator CORNYN. Thank you very much. 

Well, I am glad we are having this discussion. Unfortunately, I 

think we do not have enough discussions about race, its role in our 

society, and how we can reconcile ourselves and deal with some of 

the wounds of the past. So, I think this has been very, very helpful. 

Just to make sure we understand, and I think this is what, 

Chairman Reynolds, you were alluding to, but I want to make sure 

everybody here understands and knows who may be reading this 

transcript, the Voting Rights Act is not going to expire. 

Mr. REYNOLDS. That is correct. 

Senator CORNYN. The Voting Rights Act, which codifies the Fifteenth Amendment to the U.S. Constitution, which guarantees no 

discrimination in voting rights based on race, is a permanent part 

of our law. 

The only issue that we are talking about with regard to reauthorization has to do with Section 5, and we will describe that in a 

minute, and Section 203, which has to do with multilingual ballots. 

Just so people understand, only nine States and some other 

smaller political subdivisions are covered by Section 5. As Mr. 

Wright, Mr. Park, and others indicated, that obligates those covered States to seek pre-clearance from the Department of Justice 

on any changes in their voting practices or procedures before they 

can go into effect. 

For the rest of the country, all the rest of the United States, they 

do not have to pre-clear, but they are subject to Section 2 of the 

Voting Rights Act. They can be sued for discriminatory voting practices. That remains available whether Section 5 is reauthorized or 

not. 

A finer point. The reason why it is so important that we get this 

right, is because the U.S. Supreme Court has warned us that in 

passing reauthorizing Section 5, there must be ‘‘congruence and 

proportionality to the injury sought to be prevented or remedied.’’ 

In other words, this is an extraordinary use of Federal authority 

and imposition upon the sovereign States. I know we do not think 

about this so much today, but the States are actually sovereign entities which we were bringing in as part of the Federal Government 

back when this Nation was created. 

The Supreme Court has said, under the Fifteenth Amendment of 

the Constitution, that the Federal Government’s power is not plenary. It just cannot do anything it wants, anywhere it wants with 

regard to the States. There has got to be a reason for it. The remedy has to be proportional and congruent to the injury sought to 

be prevented from remedy. 

That leads me to this question. There have been a lot of changes, 

as has been noted in this country, since the passage of the Voting 

Rights Act. We can all stipulate, that is a good thing. Nobody 

wants to go back to the way things were before. 

In my State, we had about 57 percent of African-American voter 

registration when the Voting Rights Act was passed, and in all 

those jurisdictions covered it was about 40 percent. 

But thank goodness, today, because of changes in America, 

changes in the law, and because of the success of the Voting Rights 

23

Act, we now see that African-American voting registration in covered jurisdictions, that is the nine that have to pre-clear under Section 5, exceed that of the entire Nation. 

In other words, if my chart here is correct, it shows about 64 percent African-American voting registration based on the 2004 Presidential race. 

In covered jurisdictions, those that had had a past history of discrimination and which are required to pre-clear, they actually have 

better African-American voter registration than they have had in 

the rest of the country. 

So my question, Chairman Reynolds, for you is, part of this formula for the application of Section 5 to justify this intrusive action 

by the Federal Government, albeit remedial and justified in the 

past based on historical discrimination, what possible justification 

could there be for triggering Section 5 based on 1964 election returns, 1968 election returns, 1972 election returns, when America 

is a changed Nation and we no longer have the same sort of problems—to the same extent, I should say. We still have the same 

problems, no question about it—that we had back in 1964, 1968 or 

1972? Should we tie it to 2000–2004 elections? 

Mr. REYNOLDS. Well, I think that, at a minimum, the trigger 

should be updated. There has been a sea change in the culture. 

There has been a sea change in race relations. Again, it is difficult. 

Having conversations with my children, it is difficult for them to 

understand that their grandparents, who lived in the South, lived 

under a racial caste system. This is truly history for them. They 

will not have to deal with the levels of oppression that existed in 

the South in 1965. 

So is it a good idea to update this trigger? The answer is yes. 

I think that, as a matter of public policy, we should take a look to 

determine if changed circumstances warrants a new trigger, and I 

believe that the answer is yes. 

And also, to ensure that the statute is not successfully challenged, I think that Congress needs to look at the Act on a regular 

basis and to tailor the remedy to the harm. 

Senator CORNYN. I am sorry to interject there, because I know 

the clock is ticking away. But just to put the final point on it. If 

we do not get it right, the U.S. Supreme Court is likely to strike 

down that as an unjustified extension of Federal power over the 

States. Is that not correct? That was what Burney tells us. 

Chairman BROWNBACK. A short answer here, please. 

Mr. REYNOLDS. The short answer is, I am not sure what the Supreme Court is doing, but to ensure that the Supreme Court does 

not have to face this question, I say that we need to tailor the trigger, we need to update the statute, we need to recognize the improvements that have occurred in society. 

Chairman BROWNBACK. Thank you. I must apologize the panel, 

I have got another engagement. I am going to ask Senator Cornyn 

if he would finish chairing the hearing. Can you do that? 

Senator CORNYN. Mr. Chairman, I was just gathering my papers 

because I have another conflict, too. We can turn it over to Senator 

Sessions. 

24

Chairman BROWNBACK. We will turn the hearing over, if that is 

all right, to Senator Sessions. You have got the rest of the time 

clock to ask questions. 

Senator SESSIONS. All right. 

Chairman BROWNBACK. I do want to say, as I exit, I think this 

has been an excellent panel, a lot of thoughtful comments. These 

are tough things to discuss a lot of times because this has been a 

very important piece of legislation, the Voting Rights Act. It almost 

becomes a sacred document, so it is tough to talk about it, but it 

is important to talk about it, and what does it mean in the context 

of 2006. 

So I am hopeful that we can get the extension on this passed. 

It is a serious piece of legislation. We need it, but I think we need 

to get it right so it does withstand constitutional challenge, and it 

continues to improve our country. 

This has been one of those foundational pieces of legislation that 

you look at and you say, this really changed things for the better, 

it made a lot of things much better. I just want to make sure we 

continue that in the great tradition of what this legislation has 

meant. 

Senator Sessions, thank you very much. 

Senator SESSIONS. Thank you, Mr. Chairman. I am due to be defending America on the floor pretty soon on the defense bill, so I 

do not have a lot of time either; I wish that I did. 

Let me just say, as a Senator from Alabama, we do not dispute, 

and in fact fully recognize, the racial discrimination that was, by 

law, in existence in Alabama in the 1960’s that deprived people of 

the right to vote systematically and in large numbers in certain 

areas, virtually totally eliminating people because of the color of 

their skin of the right to vote. 

It was wrong and it could not be justified. The Voting Rights Act 

was a powerful piece of legislation that I believe has, in fact, done 

more for race relations than most anything else that has been 

passed. 

People say that frequently, and I think that is legitimate because 

it has empowered people to be a part of the electoral process when 

they were denied the right to be part of the electoral process, a 

wrong that is still in the memory of many African-American citizens throughout the South. This was in their lifetimes, in our lifetimes. 

So it is not a matter we ought to treat lightly, that we ought to 

be in any way flippant about. I would just say that I do not sense 

any commitment on this Congress’ part to do anything other than 

reauthorize this Act, for a whole lot of reasons. 

I get the impression from my State, that people who understand 

how this Act works are willing to continue to do many of the requirements that the Department of Justice and the Act puts on 

them, even though, in many instances, it is just really foolish. It 

does not really do anything other than go through a paperwork 

process. 

But they are prepared to do that. They want to affirm that the 

South, these nine States, have changed, that we are in a new 

world, and they are not afraid to have the Department of Justice 

25

or anybody else examine what they do. In fact, they are willing to 

go through that. All right. 

But I think that it is appropriate for us to analyze some of the 

requirements of the Act and to ask ourselves whether or not we 

can make it work better, whether or not—I believe it was Professor 

Swain who said—we recognize some areas where problems no 

longer exist, and create a system that is more workable and focuses 

on the more legitimate questions that come up. 

Serious questions that arise, like redistricting, have big impacts. 

You have got to be really careful about that. I do not sense any 

suggestion that we want the Voting Rights Act to be amended so 

as to eliminate that, but there are some areas where I think it 

could be improved. 

Professor Swain, you indicated that you thought the Democratic 

party may reflect the interests of the African-American community. 

I do not know if you know, I quoted from you this morning on the 

floor of the U.S. Senate. Did you know that? 

Ms. SWAIN. I am honored. No, I did not know that. 

Senator SESSIONS. I did not know you would be on this panel. I 

did so, because I agreed with you on your opinion on the immigration bill, that low-skilled or African-American workers may be hurt 

more by this bill than any other groups of people. 

Ms. SWAIN. Working class whites and legal immigrants are hurt 

also. 

Senator SESSIONS. Yes. 

Ms. SWAIN. It is a bill that affects all Americans. 

Senator SESSIONS. Well, I agree. [Laughter.] And you and I 

agree. Sixty percent of the Republicans in the Senate agreed with 

you and me, and only four Democrats did. 

Ms. SWAIN. That is because Southerners have good common 

sense. [Laughter.] 

Senator SESSIONS. Well, the point is, I guess, nothing is certain, 

as in politics and life. 

Jack Park, it is great to see you. You are a terrific lawyer and 

represented the State of Alabama well. You mentioned this baseline date. You are not talking about changing the coverage trigger 

date. You are talking about the baseline, that that sometimes leads 

to extraordinary difficulties for a State in handling the Voting 

Rights Act. 

Could you share with us how those problems exist and whether 

or not we could improve that language to make it more rational 

without diminishing the protections that the Act provides? 

Mr. PARK. A change is something measured by a reference for 

the State of Alabama to the standard practice or procedure that 

was in place on November 1, 1964. 

The election officials who were working at that time are no 

longer around, so we need to rely on election officials to tell us 

what the practices are. 

Senator SESSIONS. How does this come up? Why do you have to 

know what the practices were in 1964? 

Mr. PARK. If we are applying a statute that was in effect in 1964, 

the statute does not cover the waterfront. So election officials figure 

out how they are going to work various ways to comply with the 

statute, and those evolve into practices. 

26

They are never put into writing, but they are always done, they 

are always done the same way. The election officials always try to 

make them as fair as possible. If we change an unwritten practice, 

that is a change. 

Senator SESSIONS. And that has to be pre-cleared by the Department of Justice. 

Mr. PARK. That has to be pre-cleared. 

In litigation in which I was involved, the Secretary of State’s Office insisted that they had been following party directions to take 

disqualified candidates off for years, but they could talk only about 

15 years back. 

So we went to the archives and we found some examples where 

candidates had been taken off party primary ballots before November 1, 1964, but a State court judge said that was not enough, it 

is not the right kind of removal. 

So the archival records, as good as they are, are not enough to 

tell us exactly what we need to know. We need to be able to draw 

on the knowledge base of our current election officials. That is why 

the baseline date should be moved forward. 

Senator SESSIONS. In other words, it is all right to determine 

from the current officials what the standards, or maybe unwritten 

practices are, but it is weird and unnecessary to figure out what 

it was 35 years ago. It is less relevant and very difficult to prove. 

Mr. PARK. Yes, sir. Almost impossible to prove. 

Senator SESSIONS. Would any of you others express concerns 

about that? Yes? 

Mr. ADEGBILE. Senator Sessions, with respect to the coverage formula, I think it is important to make the point that while registration and turn-out was, and has been, an integral aspect, the registration and turn-out was not the whole story. 

It was a legislative proxy that Congress arrived at for determining certain jurisdictions that had entrenched histories of discrimination. In subsequent renewals this body has recognized, by 

examining the record in the coverage jurisdictions, that the problem or the evil that Congress sought to remediate, that being discrimination in voting, persisted. 

So I think that it is not fair for us to put too much focus on the 

coverage formula and not look at it in the context of what subsequent hearings before this Congress have recognized, that the story 

is multifaceted and complex. 

To be sure, the triggering formula is important; it is integral and 

it gives us the coverage that we see on the map today. But as I 

testified earlier, it is not static, in that there are ways into coverage and ways outside of coverage, and both have been utilized in 

the years since the last renewal. 

Senator SESSIONS. Professor Swain, would you like to comment? 

Ms. SWAIN. Yes. I think that if we were to have a uniform national voting rights law, that we would probably have to change the 

trigger factor to take into consideration the histories of the Nation 

as a whole. 

I would like to point out that African-Americans are no longer 

the largest minority group in America, that we are also dealing 

with growing numbers of Hispanics, Asians. I believe the Voting 

27

Rights Act has to be framed in a way that it protects all voters, 

wherever they live, regardless of their race. 

Senator SESSIONS. Let me ask you a question. You are from 

Nashville, at Vanderbilt University. 

Ms. SWAIN. Yes. 

Senator SESSIONS. I would ask you to handicap the possibility of 

racial discrimination at Boston, New York, Chicago, Philadelphia, 

and Nashville. 

Ms. SWAIN. I know that racial discrimination happens all over 

the country, and it is global. It is not confined to a particular region of the country or world. I have lived outside the South. I was 

a tenured professor at Princeton University. I have traveled quite 

a bit. 

I do not believe that the rest of the Nation can point a finger at 

the South, a legitimate finger, as discrimination occurs in many 

places. A lot of it may be because of the self-interests of politicians 

or for partisan gain, but it is not confined to a particular region of 

the Nation. 

Mr. REYNOLDS. Senator Sessions? 

Senator SESSIONS. Yes? 

Mr. REYNOLDS. If you do not mind, I would like to address that 

issue also. 

Senator SESSIONS. Please. 

Mr. REYNOLDS. I think that both you and Professor Swain raise 

important issues. Again, we should have uniform rules that apply 

to all citizens. Certain citizens should not have enhanced protections merely because of our history. 

The South was guilty of this pervasive disenfranchisement, but 

the North did not have clean hands either. They had a different 

system. They did not have, for the most part, literacy tests and poll 

taxes, but the North was not free from discriminatory contact. 

So if we are going to have this, if we assume that we can get over 

the constitutional issues, then I think that we need to have a conversation that starts off with the premise that we should have a 

rule that applies to all citizens. So, the trigger would have to be 

revisited under those circumstances. 

Senator SESSIONS. Chairman Reynolds, I would just ask you to 

followup a little bit more with what you just said. Is it your feeling 

that there is something inherently unwise, maybe even unconstitutional, about a focus on a certain area of the country when the evidence is such that it may not justify them being treated differently 

any longer? You are Chairman of the Civil Rights Commission and 

you think about these issues, and I would appreciate your thoughts 

on that question. 

Mr. REYNOLDS. That is the heart of the matter. In 1965, this extraordinary remedy was justified by the conduct of the South. 

Every Federal attempt to provide blacks with the right to vote was 

thwarted by the South. 

Under those circumstances, this extraordinary remedy was justified. But we are now into the 21st century. There has been a sea 

change in racial attitudes in the country. There are many blacks 

who have been elected to office, both at the State and Federal levels. The country has changed. 

28

The harm that the court was addressing was pervasive, widespread discriminatory conduct aimed at preventing blacks to vote. 

That is the harm. Now, the issue is, is the extent of that harm still 

there? Do we have the same level of discriminatory conduct? 

That is not to suggest that there is an acceptable level of discriminatory conduct, but I am saying that, in order to pass constitutional muster, this institution will have to revisit and reexamine the remedy. We have to look at the harm that is currently in 

place and we have to look at the remedy to ensure that there is 

proportionality. So, that is my two cents on the issue. 

Senator SESSIONS. Thank you. 

Mr. ADEGBILE. Senator, if I could respond, just very briefly, to 

that point. 

Senator SESSIONS. Briefly. 

Mr. ADEGBILE. I think there is an inherent tension between the 

court’s decisions under Boerne and the requirement for congruence 

and proportionality, with the conception that we should extend Section 5 nationwide. 

For example, there are parts of the country where there are no 

minority citizens that need protection. The Boerne decisions have 

recognized that limitations as to time and as to geography are important considerations in weighing the constitutionality of statutes. 

So I am a little puzzled why one would suggest that we save this 

statute by extending it to places where, clearly, it will tend to undermine, rather than support, the constitutionality of the statute. 

I think that is a very substantial consideration for this distinguished body. 

Senator SESSIONS. Well, thank you very much. Those are very 

important issues. It is a matter that this Congress, I am confident, 

will act on and we will move forward. 

Our record will remain open for 7 days, 1 week, for written questions. I would like to ask each of you, if you receive questions from 

the members, to respond as promptly as you can. 

Thank you all for your testimony today on this very important 

issue. Thank you very much. 

[Whereupon, at 3:30 p.m. the hearing was adjourned.] 

[Questions and answers and submissions for the record follow.]

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