S. HRG. 109–823

RENEWING THE TEMPORARY PROVISIONS OF THE

VOTING RIGHTS ACT: LEGISLATIVE OPTIONS

AFTER LULAC V. PERRY

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

JULY 13, 2006

Serial No. J–109–98

Printed for the use of the Committee on the Judiciary

(

RENEWING THE TEMPORARY PROVISIONS OF THE VOTING RIGHTS 

ACT: LEGISLATIVE OPTIONS AFTER LULAC V. PERRY 

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2250 Mail: Stop SSOP, Washington, DC 20402–0001

33–836 PDF 2007

S. HRG. 109–823

RENEWING THE TEMPORARY PROVISIONS OF THE

VOTING RIGHTS ACT: LEGISLATIVE OPTIONS

AFTER LULAC V. PERRY

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

JULY 13, 2006

Serial No. J–109–98

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

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 2

prepared statement .......................................................................................... 211

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin ............. 15

Kennedy, Hon. Edward M., a U.S. Senator from the State of Massachusetts ... 1

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

statement .............................................................................................................. 272

WITNESSES 

Avila, Joaquin G., Assistant Professor of Law, Seattle University School of 

Law, Seattle, Washington .................................................................................... 11

Carvin, Michael A., Partner, Jones Day, Washington, D.C. ................................ 9

Clegg, Roger, President and General Counsel, Center for Equal Opportunity, 

Sterling, Virginia .................................................................................................. 4

Ifill, Sherrilyn A., Associate Professor of Law, University of Maryland School 

of Law, Baltimore, Maryland .............................................................................. 6

Perales, Nina, Southwest Regional Counsel, Mexican American Legal Defense 

and Educational Fund, San Antonio, Texas ...................................................... 8

Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and Vice-Chair, 

U.S. Commission on Civil Rights, Lexington, Massachusetts .......................... 13

QUESTIONS AND ANSWERS 

Responses of Joaquin Avila to questions submitted by Senator Cornyn ............ 27

Responses of Michael Carvin to questions submitted by Senator Cornyn .......... 45

Response of Roger Clegg to questions submitted by Senator Cornyn ................. 49

Responses of Sherrilyn Ifill to questions submitted by Senator Cornyn ............ 50

Response of Nina Perales to questions submitted by Senator Cornyn ............... 61

Responses of Abigail Thernstrom to questions submitted by Senator Cornyn ... 62

SUBMISSIONS FOR THE RECORD 

American Federation of Labor and Congress of Industrial Organizations, William Samuel, Director, Department of Legislation, Washington, D.C., letter 72

American Jewish Committee, Richard T. Foltin, Legislative Director and 

Counsel, Washington, D.C., letter ...................................................................... 74

Asian American Justice Center, Karen K. Narasaki, President and Executive 

Director, Washington, D.C., letter and statement ............................................. 75

Avila, Joaquin G., Assistant Professor of Law, Seattle University School of 

Law, Seattle, Washington, statement and attachment ..................................... 103

Carvin, Michael A., Partner, Jones Day, Washington, D.C., statement ............. 135

Clegg, Roger, President and General Counsel, Center for Equal Opportunity, 

Sterling, Virginia, statement ............................................................................... 144

Collet, Christian, University of California, Journal of Politics, Irvine, California, manuscript ................................................................................................ 175

Editorials and articles concerning renewing the temporary provisions of the 

Voting Rights Act, list ......................................................................................... 218

Friends Committee on National Legislation, Ruth Flower, Senior Legislative 

Secretary, Washington, D.C., letter .................................................................... 224

Harris, Fredrick C., Associate Professor of Political Science and Director, 

Center for the Study of African-American Politics, University of Rochester, 

Rochester, New York, letter ................................................................................ 226

Page

IV

Ifill, Sherrilyn A., Associate Professor of Law, University of Maryland School 

of Law, Baltimore, Maryland, statement ........................................................... 228

Ivory, Rev. Elenora Giddings, Director, Washington Office, Presbyterian 

Church (USA), Washington, D.C., letter ............................................................ 240

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 ........... 242

Lawyers’ Committee for Civil Rights Under Law, Jon Greenbaum, Director 

of the Voting Rights Project, Washington, D.C., statement ............................. 250

Leadership Conference on Civil Rights, Wade Henderson, Executive Director, 

and Nancy Zirkin, Deputy Director, Washington, D.C., letter ......................... 269

League of Women Voters of the United States, Kay J. Maxwell, President, 

letter ...................................................................................................................... 271

Mexican American Legal Defense and Educational Fund, John Trasvin ̃ a, Interim President and General Counsel, Los Angeles, California, letter ........... 275

National Association of Latino Elected Officials, Washington, D.C.: 

Arturo Vargas, Executive Director, May 9, 2006, letter ............................... 277

James Thomas Tucker, July 2006, survey ..................................................... 279

National Black Law Journal, Glenn D. Magpantay and Nancy W. Yu, Vol. 

19, Number 1, 2006, article ................................................................................. 312

National Congress of American Indians, Joe A. Garcia, President, Washington, D.C., letter and resolution ...................................................................... 344

National Council of Asian Pacific Americans, Washington, D.C., letter ............. 349

National Council of La Raza, Janet Murguı ́a, President and CEO, Washington, D.C., letter ............................................................................................... 351

Oliver, Dana M., General Registrar, Salem, Virginia, letter ............................... 353

Pamintuan, Rudy, Chair, President’s Advisory Commission on Asian Americans and Pacific Islanders, Washington, D.C., letter ........................................ 356

Perales, Nina, Southwest Regional Counsel, Mexican American Legal Defense 

and Educational Fund, Los Angeles, California, statement ............................. 357

RenewtheVRA.org: 

joint statement .................................................................................................. 361

James Blacksher, Edward Still, Nick Quinton, Cullen Brown and Royal 

Dumas, June 2006, report ............................................................................ 365

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

Virginia, letter ...................................................................................................... 403

Sinclair-Chapman, Valeria, Assistant Professor of Political Science, University 

of Rochester, Rochester, New York, letter ......................................................... 405

Thernstrom, Abigail, Senior Fellow, The Manhattan Institute, and Vice-Chair, 

U.S. Commission on Civil Rights, Lexington, Massachusetts, statement and 

attachment ............................................................................................................ 407

United Automobile, Aerospace & Agricultural Implement Workers of America 

(UAW), Alan Reuther, Legislative Director, Washington, D.C., letter ............ 419

Verizon, Ivan Seidenberg, Chairman and Chief Executive Officer, New York, 

New York, letter ................................................................................................... 421

Wal-Mart, H. Lee Scott, President and Chief Executive Officer, Bentonville, 

Arkansas, letter .................................................................................................... 422

Watts, J.C. Jr., June 21, 2006, letter ..................................................................... 423

Williams, Roger, Secretary of State, State of Texas, Austin, Texas, letter 

and attachment .................................................................................................... 424

Yale Law Journal, Alvaro Bedoya, 115:2112, 2006, article .................................. 429

APPENDIX 

Additional submissions and citations for Voting Rights Act Reauthorization ... 464

(1)

RENEWING THE TEMPORARY PROVISIONS OF 

THE VOTING RIGHTS ACT: LEGISLATIVE OPTIONS AFTER LULAC V. PERRY 

THURSDAY, JULY 13, 2006

U.S. SENATE, SUBCOMMITTEE ON THE CONSTITUTION, 

CIVIL RIGHTS AND PROPERTY RIGHTS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:33 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. John Cornyn, presiding. 

Present: Senators Cornyn, Kennedy, and Feingold. 

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

SENATOR FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. [Presiding.] We will come to order. The Chairman and other members are expected here momentarily, and then 

there are going to be some votes that are coming up, so the Chairman will have to deal with that. But we will get started, and I 

would ask consent that my comments appear after the Chair, and 

I also have a statement by the Senator from Vermont, Senator 

Leahy, and I ask that that be made part of the record. 

I hope that today will conclude our hearings on the reauthorization of the Voting Rights Act. We have built a strong record justifying the renewal of the Act’s key expiring provisions—Section 5, 

Section 203, and the Federal observer provisions. Voting this bill 

out of Committee and moving it to the floor for consideration by the 

full Senate is essential. The importance of Act to minority voters 

and to our Nation’s promise of democracy demands action, and I 

am hopeful that the full Senate can pass this bill before the August 

recess in time for the 41st anniversary of the signing of the Act, 

which we will celebrate on August 6th. 

The Supreme Court’s decision in LULAC v. Perry that the Texas 

Congressional redistricting plan discriminated against Latino voters in violation of Section 2 of the Act is strong evidence in favor 

of reauthorization. The Court found current discrimination against 

minority voters in a jurisdiction covered in its entirety under Section 5 of the Voting Rights Act. The decision is a vindication of minority voting rights and another indication that voting discrimination persists today in some parts of the country, including at the 

State level. 

The Court made several significant findings. It found that polarized voting exists throughout the State. Anglo voters in Texas genVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
2

erally vote for different candidates than minority voters. We know 

that redistricting boundaries and altering election rules in such 

cases has been used to undermine the voting rights of minorities. 

And Section 5 provides a needed remedy for such practices. 

The Court also found that the State has a long, well-documented 

history of discrimination against Hispanics and African-Americans 

in voter registration, voting, and otherwise participating in the 

electoral process. The 2003 redistricting in Texas was another 

chapter in that history. The State shifted 100,000 Latino voters 

from a district where they were on the verge of electing a candidate 

of their choice to another district in which Latinos already controlled election outcomes. 

As Justice Kennedy states, ‘‘In essence, the State took away the 

Latinos’ opportunity because Latinos were about to exercise it.’’ 

Justice Kennedy found evidence that Texas had intentionally diluted the voting strength of Latino voters because of their ethnic 

background and in violation of the Constitution. Such evidence of 

intentional discrimination is obviously very significant with respect 

to the constitutionality of extending Section 5 of the Act. 

Even Justice Scalia said, ‘‘We long ago upheld the constitutionality of Section 5 as proper exercise of Congress’s authority 

under Section 2 of the 15th Amendment to enforce the Amendment’s prohibition on denial or abridgment of the right to vote.’’ 

As Justice Scalia emphasized, Section 5 applies only to jurisdictions with a history of official discrimination. In fact, the Texas redistricting plan should never have been before the Court. If the Attorney General listened to the advice of career attorneys in the 

Civil Rights Division, he would not have approved the Texas plan 

under Section 5. 

As Justice Souter said, the Attorney General should have objected because the State failed to offset the elimination of a district 

in which African-American voters had demonstrated an ability to 

elect a candidate of their choice under the previous plan. That is 

why Chief Roberts was moved to say, ‘‘It is a sordid business, this 

divvying us up by race.’’ 

As long as State and local election officials continue to discriminate against minority voters, laws like Section 5 will be needed to 

protect minority voters. 

We will hold up. We will have a moment or two recess here while 

Senator Cornyn arrives, and then we will hear from Senator 

Cornyn and the panel. We thank the witnesses for their patience. 

Most of them have some familiarity with this process. I would indicate to them that their testimony is very important and we will 

have a good opportunity to review it carefully here on the Committee. 

[Recess 2:38 p.m. to 2:55 p.m.] 

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

THE STATE OF TEXAS 

Senator CORNYN. We will reconvene. Welcome to each of you. I 

ask you indulgence as the Senate has four stacked votes, and so 

we will get started here. I will get started. I know Senator Kennedy was here and delivered his opening statement, but if you will 

3

hang in there with us, we will get this done in the best form we 

possibly can. 

On behalf of the Chairman, let me say welcome to this eighth 

and likely the last in a series of a number of hearings before the 

Senate Judiciary Committee on reauthorizing the temporary provisions of the Voting Rights Act, provisions that are scheduled to expire about 1 year from now, in the summer of 2007. 

Few issues are as fundamental to our system of democracy and 

the promise of equal justice under law as are our voting rights. It 

is precisely for this reason that it is appropriate that we continue 

to engage in a thorough review of the Act and that we continue to 

work collectively to ensure that the Act is reauthorized with due 

consideration of the requirements of the Constitution and recent 

guidance from the U.S. Supreme Court. 

As we continue to explore the many issues raised by reauthorization of the expiring provisions, I am concerned we may not be as 

clear as we need to be about what we are discussing. Many, I 

think, may be under the false impression that if Congress does not 

act, the Voting Rights Act will expire. Nothing could be farther 

from the truth. In fact, the Act’s core provision, that is, Section 2, 

its prohibition on discrimination with respect to voting, applies nationwide and is permanent. 

What concerns me further is that the current draft rewrites significant portions of the existing Voting Rights Act. Unfortunately, 

in my opinion, in a way that may well have the effect of further 

injecting partisan politics into the noble pursuit of guaranteeing 

voters access to the ballot box. This concern of mine and of numerous scholars was heightened by the Supreme Court’s recent opinion 

in League of United Latin American Citizens v. Perry, the Texas redistricting case, a heavily anticipated decision handed down about 

2 weeks ago. The Court upheld virtually all aspects of the Texas 

redistricting plan, requiring that a single district be redrawn, although the ripple effect is unknown at this point. 

I believe the Court was right to uphold the bulk of that plan, because whatever one thinks of partisan gerrymandering, it has long 

been the case that legislatures will seek to maximize party interests when establishing districts for voting. And until we come up 

with a better objective system, partisan gerrymandering will always be a reality of redistricting. As one of my former colleagues 

told me, he said, ‘‘You can’t take politics out of politics.’’ And this 

is true whether it is a Democrat- or a Republican-led remapping. 

But it is disturbing when an Act that was designed to ensure voters that voters have full access to the ballot box has become a vehicle for partisan maneuvering. That is why I fear that the current 

rewrite of the Voting Rights Act will do that, that we are continuing this, in the words of Chief Justice John Roberts, sordid 

business of divvying up people by race. Only now we are perpetuating it under the cloak of protecting voting rights. I believe we 

should take great caution in this exercise. 

We have an esteemed group of scholars with us today, and I look 

forward to hearing from each of you about your opinions on the 

topics I have mentioned and the Voting Rights Act generally. 

4

Roger Clegg is President and General Counsel of the Center for 

Equal Opportunity in Sterling, Virginia, and he has extensively researched and written on legal issues raised by our civil rights laws. 

Next, Professor Sherrilyn Ifill, from the University of Maryland 

Law School in Baltimore. Professor Ifill has previously served as 

Assistant Counsel at the NAACP Legal Defense and Education 

Fund, where she litigated various Voting Rights Act cases. 

Nina Perales, from the Mexican American Legal Defense and 

Educational Fund, is also with us today. Ms. Perales is the Southwest Regional Counsel for MALDEF in my hometown of San Antonio, Texas. 

Michael Carvin is a partner with the law firm of Jones Day here 

in Washington, D.C. Mr. Carvin specializes in constitutional, appellate, civil rights, and civil litigation against the Federal Government. He has argued cases in the U.S. Supreme Court and virtually all Federal appeals courts. 

Professor Joaquin Avila is an Assistant Professor of Law at Seattle University School of Law in Seattle, Washington. Professor 

Avila was previously Managing Director and head of Latin America 

for Lehman Brothers, where he developed and implemented strategic plans for the region. 

Last, but certainly not least, we have Abigail Thernstrom, who 

is joining us for the second time. Ms. Thernstrom is the Vice Chair 

of the United States Commission on Civil Rights, and she has written extensively on race relations and voting rights issues. Ms. 

Thernstrom, thank you for returning to be with us again. 

I would especially like to thank Chairman Specter, as well as 

Senator Brownback, Chairman of the Subcommittee on the Constitution, Civil Rights, and Property Rights, for scheduling this important hearing, and I am delighted to chair it today. 

As I said a moment ago, this is going to be a little helter-skelter, 

but we will do the best we can and in a way that allows me to get 

back and cast votes on the stacked votes before us. But until then, 

Mr. Clegg, let’s start with you, please. We will ask you to keep your 

opening statement to 5 minutes, and then we will proceed with 

questions. Thank you. 

STATEMENT OF ROGER CLEGG, PRESIDENT AND GENERAL 

COUNSEL, CENTER FOR EQUAL OPPORTUNITY, STERLING, 

VIRGINIA 

Mr. CLEGG. Thank you, Senator Cornyn. In my full written statement, I discuss at some length why I think Section 5 and Section 

203 should not be reauthorized, indeed why I think doing so would 

be unconstitutional, and why the Bossier Parish decisions and 

Georgia v. Ashcroft should not be overturned if Section 5 is reauthorized. But in my oral statement this afternoon, I would like to 

focus specifically on the divergence between what the Voting Rights 

Act was supposed to be and what it has become, and that divergence is in many ways dramatized by the Supreme Court’s recent 

decision in LULAC v. Perry. Section 5 has diverged from its original purpose in several ways. 

The first way is that there really is no longer any rhyme or reason 

in which jurisdictions are covered and which ones are not. After 

several decades, we would expect to need to update the trigger 

5

mechanism, looking at more recent elections or more recent records 

of voting violations. 

Another way Section 5 has diverged from its original stated purpose is even more disturbing. It is not being used to stop racial gerrymandering. It is being used to require it. Sometimes that motivation is overtly racial. The Voting Rights Act is being used to foster 

segregation in voting districts, and it is being used to try to ensure 

something like racial proportionality in legislatures. But at least 

four of the Justices in Perry acknowledged that, while generally the 

reapportionment there was about politics, not race, what racial gerrymandering did take place was required by the Voting Rights Act. 

It is also disturbing to see a voting rights statute twisted into a 

partisan political device, and this abuse is committed by both parties. For instance, in Texas, Republicans did not aim to dilute anyone’s voting power because of race. They were focused on people’s 

voting power because of party—not always a particularly noble 

focus but one that is as old as Elbridge Gerry at least. Still, the 

Democrats wanted to stop them, and so they tried, with some success, to use the Voting Rights Act to do it. Likewise, in Georgia v. 

Ashcroft, the Democrats were not trying to hurt black voters or 

help them, per se. They just wanted to try to win more seats for 

Democrats. But their efforts were challenged under the Voting 

Rights Act because it was the tool at hand. 

Incidentally, the same kind of abuse can also happen in ways 

that do not involve gerrymandering but do involve other voting 

practices or procedures that are objected to, ostensibly because they 

are racially discriminatory, but really for partisan purposes. For instance, I suspect that absentee ballot procedures and voter identification and other anti-fraud laws are all challenged sometimes not 

because anyone really believes that they are intended to be racially 

discriminatory, but because one side thinks these rules will hurt 

their voter turnout and their disparate racial impact allows the 

Voting Rights Act to be invoked for, again, partisan political ends. 

The good news, Mr. Chairman, is that in 2006 neither party 

wants to stop anyone from voting because of race. All either party 

cares about is winning. There is no candidate in either party who 

would not be thrilled with 100 percent black registration and turnout, so long as the candidate was also confident that those voters 

would vote for him. 

The racial polarization that is often the centerpiece of Voting 

Rights Act litigation is an increasingly incoherent concept. Whites 

and blacks may frequently vote differently in some jurisdictions, 

but it is not about race or discrimination. It is just about differences in political opinion on issues like taxes and national defense. 

But because African-Americans vote so overwhelmingly Democratic, any effects test in the voting area can be readily invoked for 

partisan purposes, sometimes by one part, sometimes by the other. 

For instance, for years Republicans have tried, sometimes successfully—although those days may be ending—to use an effects test to 

pack African-Americans into a relatively few districts, thus bleaching all the other surrounding districts white, with the end result 

that there are lots of Republican districts and just a few black 

ones, especially in jurisdictions like the South where the white votVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
6

ers tend to be conservative.Of course, conversely, Democrats in 

Perry argued that reapportionment aimed at helping Republicans 

was racially discriminatory. Well, what is to be done? The obvious 

answer is don’t renew Section 5. 

If Congress insists that it cannot go cold turkey, then at least it 

should not make Section 5 worse. The two Bossier Parish decisions 

have modestly limited its scope and its potential abuses. They 

should not be overturned. I would also put Georgia v. Ashcroft in 

this category. The current House bill not only overturns Georgia v. 

Ashcroft but replaces it with a provision that is muddy at best, will 

lead to years of more litigation, and will have results that its drafters never intended. I would add that the more this provision’s 

meaning is clarified to ensure that it requires the creation of majority-minority districts, the more clearly unconstitutional it will be 

as well. 

The case law that has grown up around Section 5 makes its 

meaning nearly incomprehensible already. Congress should not 

make matters worse by adding language, the meaning of which its 

own members cannot agree on. 

I would also not extend Section 5 or Section 203 for another 25 

years. The shorter the extension, the better, especially if Congress 

changes the statute in ways that might have unintended consequences. I would also try to put in place a better, more objective 

review mechanism, probably in the statute itself. Congress must 

undertake a serious, systematic comparison of voter registration 

and participation rates by race in covered versus non-covered jurisdictions, with an effort to determine the actual causes of any disparities and specifically whether those causes are discrimination, 

and if there are more limited and effective remedies for any discrimination than the preemption mechanism and an effects test. 

Above all, Senator Cornyn, Congress should not extend the law and 

then forget about it and its effects for another 25 years—and then 

scramble and try to figure out what to do about it in the heat of 

another election year. 

Thank you very much. 

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

for the record.] 

Senator CORNYN. Thank you, Mr. Clegg. 

Professor Ifill? 

STATEMENT OF SHERRILYN A. IFILL, ASSOCIATE PROFESSOR 

OF LAW, UNIVERSITY OF MARYLAND SCHOOL OF LAW, BALTIMORE, MARYLAND 

Ms. IFILL. Thank you for giving me the opportunity to testify in 

support of the passage of this bill reauthorizing the Voting Rights 

Act. 

I followed the deliberations on this matter in the House and in 

the Senate with some interest, and I commend both Houses for the 

deliberate and thorough way in which you have considered reauthorization of the Act. 

As a former voting rights attorney and now an academic, I have 

tried to follow the arguments advanced by those who disagree with 

the continued need for the Act, like Mr. Clegg—arguments that I 

believe have been most capably countered by supporters of the Act 

7

in the civil rights and academic communities who have appeared 

before you. 

But I was particularly interested in appearing at this hearing because I confess to being somewhat intrigued by the name of the 

hearing: ‘‘Legislative Options after LULAC v. Perry.’’ I was intrigued because my reading of the Supreme Court’s decision in that 

case finds nothing that supports altering the existing framework of 

the draft bill for reauthorization of the Voting Rights Act. To the 

contrary, the Court’s analysis in LULAC, to my mind, strongly supports the bill. I say this for three reasons. 

First, the Court upheld the district court’s finding that voting 

was racially polarized throughout the State of Texas. This finding 

and the Supreme Court’s recognition of it is significant. It reflects 

the reality that although this country has come a long way since 

the Act was passed in 1965, we still, as Congressman John Lewis 

stated to this Committee, have a great distance to go. 

When I litigated voting rights cases in the 1980’s and early 

1990’s in Texas, voting was racially polarized. Fifteen years later, 

this political reality continues to shape and to undermine the ability of minority voters to elect candidates of their choice. 

Second, the Court in LULAC, in its detailed and local specific 

analysis of the way in which the dismantling of District 23 violated 

Section 2 of the Act, demonstrates why the protections of the Voting Rights Act are not limited merely to access to the ballot box, 

as some would have us believe. In 1965 and again in 1982, Congress explicitly designed the Act to address any means by which a 

jurisdiction might interfere with the ability of minority voters to 

participate in the political process and elect candidates of their 

choice. Rather than anticipate what those methods might be, Congress, and later the courts in furtherance of Congress’ goals, encouraged—and I am quoting—’’a searching, practical evaluation of 

the local political reality and a functional view of the political process’’—I am quoting from the Senate report accompanying the 1982 

amendments of the Act—to determine whether a violation of Section 2 has occurred. 

In LULAC, the Court rejected a simplistic numbers game whereby one Latino district, District 23, could simply be swapped for another, District 25. The Court recognized instead that District 23 

was dismantled precisely to keep Latinos there from exercising 

their increasing power in that district. The Court described this action by the State of Texas as ‘‘bearing the mark of intentional discrimination.’’ 

Third, with regard to Section 5, as you know, LULAC v. Perry

was not a Section 5 case; thus, the Court’s opinion in LULAC offers 

this Committee no new analysis or insight into the appropriate 

standard for preclearance under Section 5, the scope of jurisdictions to be covered under Section 5, or the trigger formula for Section 5. In fact, the only pronouncements about Section 5 that I 

think are of importance for this Committee’s work on the reauthorization bill appear in the opinion of Justice Scalia, concurring in 

part and dissenting in part. 

In that opinion, the three most conservative Justices on the 

Court joined with Justice Scalia in reaffirming the constitutionality 

of Section 5 as a proper exercise of Congress’s authority under SecVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
8

tion 2 of the 15th Amendment, a power that remains undiminished 

after City of Boerne v. Flores. Finally, to the charge that the Voting Rights Act fosters segregation, there are myriad factors that have contributed to residential 

segregation in the United States. Some of them include a history 

of violence, socioeconomic disparities between blacks and whites, 

red-lining, and even choice. None of these phenomena were created 

by the Voting Rights Act, and I would commend certainly a number 

of studies, including Jim Loewen’s ‘‘Sundown Towns,’’ Sheryll 

Cashin’s ‘‘The Failure of Integration,’’ if one wants to look at the 

purposes and the causes of residential segregation. 

The Voting Rights Act instead has encouraged some of the most 

integrated districts, election districts, that this country has seen in 

the South. 

In conclusion, the Supreme Court’s decision in LULAC v. Perry, to the extent that it bears on the deliberations of this Committee, 

reaffirms the importance of reauthorizing the Act, and I would be 

happy to take any further questions about the decision. 

Thank you. 

[The prepared statement of Ms. Ifill appears as a submission for 

the record.] 

Senator CORNYN. Thank you very much. 

Ms. Perales? 

STATEMENT OF NINA PERALES, SOUTHWEST REGIONAL 

COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, SAN ANTONIO, TEXAS 

Ms. PERALES. Thank you, Chairman Cornyn. Thank you for the 

opportunity to testify today regarding the Supreme Court decision 

in the Texas redistricting case and its implications for the reauthorization of the Voting Rights Act. 

My name is Nina Perales. I am Southwest Regional Counsel for 

MALDEF, the Mexican American Legal Defense Fund. MALDEF 

successfully litigated the Voting Rights Act claim before the Court. 

I argued the appeal on behalf of the GI Forum before the Supreme 

Court on March 1, 2006. 

The LULAC v. Perry decision is a resounding affirmation of the 

Voting Rights Act and its continued importance in protecting minority voting rights. The Supreme Court decision also helps us understand why we need the protections of the temporary provisions 

in the face of ongoing discrimination in Texas. 

The Court found that Texas had violated the Voting Rights Act 

by diluting Latino voting strength in District 23. As mentioned by 

Professor Ifill, the Court found racially polarized voting throughout 

the State and characterized the racially polarized voting in District 

23 as ‘‘severe.’’ 

For Texas, the State containing the second largest number of 

Latinos in the United States, this is the second time a State redistricting plan has been invalidated in this decade for violating 

Latino voting rights. 

This decision, although characterized by many as having to do 

with partisanship, is not about Democrats and it is not about Republicans. Importantly, the record in this case demonstrated that 

Latinos in District 23 were flexible in their partisan affiliation and 

9

had voted in some numbers for the incumbent prior to his losing 

support in the Latino community steadily over the decade leading 

up to the redistricting. 

This Court in this decision was unable to determine a standard 

for partisan gerrymandering—unable or unwilling, and, thus, this 

case does not discuss how the Voting Rights Act might or might not 

be squeezed into a partisan agenda. It simply does not discuss it. 

The Supreme Court, however, did affirm the rule that political 

maneuvering—and I believe the Supreme Court understands this 

can happen from either party—has its limits when it comes to taking away Latino opportunity to elect. This case has unusual and 

hopefully unique facts because it was a very bad situation for 

Latinos in District 23. Having grown into the majority, now comprising 55 percent of the registered voters, and having voted very 

cohesively over the last decade, more and more so against the incumbent, Latinos were divided by the State, pulled out of this district, just at the point at which they were going to unseat the 

disfavored candidate. The Supreme Court wrote that, Texas ‘‘took 

away the Latinos’ opportunity because Latinos were about to exercise it.’’ 

The Court did not have any problem at all overruling the district 

court in its finding that District 23 was not an opportunity district. 

The Supreme Court found that it did offer the opportunity to elect. 

It was not a fuzzy or an amorphous concept, but quite clear, and 

clear enough for the Supreme Court to handle it and rule that it 

was an opportunity district based on a local appraisal of the facts 

there, including the turnout, the election performance, and the registration rates. 

Finally, I want to mention that the Subcommittee can be reassured by the fact that eight Justices wrote specifically to say that 

Section 5 of the Voting Rights Act, which was—in fact, there was 

no Section 5 claim in this case and there could not have been because, of course, those issues are reserved to the Justice Department and the district court in Washington, D.C. But eight Justices 

still went out of their way to write that Section 5 is a compelling 

State interest and to uphold or to discuss the Court decisions previously upholding the constitutionality of Section 5, I think that 

that is—to the extent that LULAC v. Perry does speak to the temporary provisions, it is in a very positive and affirming way. 

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

for the record.] 

Senator CORNYN. Thank you, Ms. Perales. 

We are going to have to recess for the vote and return shortly, 

I hope. 

[Recess 3:17 p.m. to 4:14 p.m.] 

Senator CORNYN. We will reconvene the hearing. Again, my 

apologies. Simply unavoidable. 

Mr. Carvin, we would be glad to hear your opening statement. 

STATEMENT OF MICHAEL A. CARVIN, PARTNER, JONES DAY, 

WASHINGTON, D.C. 

Mr. CARVIN. Thank you, Senator Cornyn. I have been involved in 

a number of voting rights—— 

Senator CORNYN. Mr. Carvin, is your red light on? 

10

Mr. CARVIN. Can you hear me now? 

Senator CORNYN. I can hear you now. Thank you. 

Mr. CARVIN. Thank you. I was just going to say that I have filed 

a brief on behalf of the Texas Republican Party in the LULAC case. 

To cut to the chase, I think the principal relevance of the LULAC

case for the Section 5 reauthorization was the case’s treatment of 

so-called influence districts. As you know, Senator, those are districts where minorities are not sufficiently large that they can constitute a majority in a district but they are, nonetheless, sizable 

enough that they can form a coalition with non-minority voters to 

elect their candidates of choice. And that issue came up in LULAC

in the following way: 

There was a Section 2 challenge to the failure to maintain or preserve old District 24 where the black population, citizen voting age 

population was roughly 26 percent, and it was argued that even 

though they were a minority of the district, they could elect their 

preferred candidate, who was the white Democratic incumbent, 

Martin Frost. 

The Court, I should emphasize, did not resolve explicitly whether 

or not such claims are ever viable under Section 2, but it did reject 

the claim, as it was brought relative to District 24, and it did so 

with language that is in my statement, where at least Justice Kennedy indicated that acceptance of this kind of influence district theory would raise serious constitutional concerns about the Voting 

Rights Act. 

That continued a long line of precedent in which all the lower 

Federal courts, save one, had rejected the continuous efforts of the 

Democratic Party in the 2000 redistricting cycle to have courts 

order or require these influence districts under Section 2 and Section 5 of the Voting Rights Act. Those have been uniformly rejected 

pursuant to the reasoning that the Federal judiciary is not empowered or required by the Voting Rights Act to engage in preferences 

for one party over another, even if that party is supported predominantly by minorities. In other words, it is an obvious fact that certainly in the African-American community and largely in the 

Latino community, the preferred candidate of choice is a Democrat. 

But the courts have rejected the notion that that somehow justifies 

creating districts where minorities can elect their preferred candidates of choice. 

The mandate of Section 2 is not to prefer any party, regardless 

of its demographic composition. It is to ensure that minority voters 

have an equal opportunity to elect their candidates, no guarantees 

because of partisan preferences. 

The relevance of that to the legislation the Committee is considering is that as that theory of partisan preferences and influence 

districts under Section 2 has been uniformly rejected, I am greatly 

concerned that the Committee and the Congress is about to revive 

it under Section 5. And the reason for that is that the language in 

the Senate and House bills prohibits as retrogressive any redistricting change that diminishes the ability of minority voters to 

elect their preferred candidates of choice. And as I indicated before, 

since the preferred candidate of choice is largely Democratic, you 

will literally have a Federal statute, passed, ironically, by a Republican Congress, which says you cannot diminish the ability to elect 

11

Democrats in these covered jurisdictions. This would not just be a 

requirement that you preserve majority-minority districts because 

we all know that in the circumstances I previously described, minorities are able to elect their preferred candidates of choice, even 

if they are not a numerical majority in the district because they 

can form a coalition with like-minded Democratic voters who are 

non-minority. 

We also know, of course, that preferred candidates of choice 

among the minority community can be either members of that ethnic group or non-minorities. For example, in the LULAC case, Representative Bonilla is a Latino, but as Ms. Perales indicated previously, he was not the Hispanic candidate of choice. You do not 

look at the ethnicity of the candidate. You look at the voting patterns of the particular ethnic group. 

So LULAC confirms again that if you have a requirement in the 

Voting Rights Act that says you cannot diminish the ability to elect 

a preferred candidate of choice, what you have, in essence, done is 

prevent dismantling districts like the old District 24 in Texas because that would diminish the ability to elect the preferred candidate. 

I will also briefly mention the override of the Bossier Parish II

case, which is of particular relevance to me because I successfully 

argued that case in the Supreme Court, and the evil there is that 

it enables the Justice Department to find discriminatory purpose 

every time that the submitting jurisdiction does not maximize the 

number of minority opportunity districts. And after the Georgia v. 

Ashcroft override, that would not only mean maximizing the number of majority-minority districts, it would mean maximizing the 

number of the so-called influence districts, which, as you indicated 

in your opening statement, in my mind injects partisan consideration of favoritism into a statute that is supposed to ensure racial 

neutrality. And I think that would be a very troubling development, particularly 40 years after the enactment of the first version 

of Section 5. 

Thank you. 

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

for the record.] 

Senator CORNYN. Thank you, Mr. Carvin. 

Professor Avila, we would be glad to hear your opening statement. 

STATEMENT OF JOAQUIN G. AVILA, ASSISTANT PROFESSOR 

OF LAW, SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, 

WASHINGTON 

Mr. AVILA. Good afternoon, Senator. I would just like to add for 

the record that even though I would have liked to have been a strategic partner for the Lehman Brothers—I probably would have 

been better off financially—I have spent most of my time during 

the past 32-plus years doing nothing but voting rights litigation. 

And I am now transitioning myself into a teaching career. 

I am here because I want to just simply state that voting discrimination still persists and it is very pervasive. As a result of my 

experiences during the past 30-plus years, in Texas from 1976 to 

1986, when I was involved with the Mexican American Legal DeVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
12

fense and Educational Fund, I presented testimony before Congress 

back in 1981 when it was reauthorizing the 1982 Voting Rights Act 

Amendments. And in that testimony I presented a very extensive 

record of voting discrimination. 

That experience continued when I started to open up my voting 

rights practice in California, and as a result of that voting rights 

practice, I have had substantial experience in terms of documenting racially polarized voting, Section 5 violations in Monterey 

County and in Kings County in California. And the impact of Section 5 has been very dramatic in California. 

Just to give you one illustration, in Monterey County, California, 

the Board of Supervisors had submitted a plan for redistricting 

that had to be submitted for Section 5 preclearance. And as a result of Section 5, we were able to prevent the implementation of 

a plan that was going to divide and fragment a politically cohesive 

minority community. And if we did not have Section 5, then we 

would have had to have litigated under Section 2 of the Voting 

Rights Act. And as a result of a letter of objection that was issued 

by the Attorney General at that time, we were able to prevent the 

implementation of a plan that had a clear discriminatory effect. 

It is not just the application of just some draconian law. This had 

a dramatic impact in Monterey County. It resulted in the election 

of the first Latino supervisor in over 100 years. That is what Section 5 did in Monterey County. 

My experiences out there in California also demonstrated that 

there is a significant issue of noncompliance with Section 5. As a 

result of the noncompliance, jurisdictions simply refused to submit 

their voting changes for approval. And, in fact, I was involved in 

two Supreme Court cases, involving, again, Monterey County, 

where you had a series of judicial district consolidations that had 

occurred from 1968 to 1983 that had not even been submitted. It 

took two U.S. Supreme Court cases and 9 years of litigation in 

order for Monterey County and the State of California to comply. 

Most recently, in additional litigation in Monterey County, the 

county, in fact, had not submitted for preclearance a series of consolidations of their voting precincts, and it took, again, litigation. 

Section 5 is very much needed. And, in fact, just on Cinco de Mayo 

of this year, we had a letter of objection that was issued by the Attorney General against the North Harris, Monterey County Community College District because there was a reduction in voting 

places. It went from 84 polling places to 12 polling places, and 

clearly this had a dramatic impact on voter participation in that 

community college district. And the Attorney General issued a letter of objection. 

It is just not merely one of these de minimis voting changes. In 

that particular submission to the Department of Justice, it was 

consolidated down to 12 voting precincts from 84, and each of the 

newly consolidated voting precincts in the non-minority area, 

where you had the least number of Latinos, it was 6,500 voters. In 

the more heavily concentrated Latino voters in that district, you 

had 67,000 voters. That is a dramatic impact. That is why Section 

5 is needed. And that is why it is needed for an additional 25 

years. 

13

We have not gotten to the point yet, from 1982 to the present, 

where we can definitely say that we have addressed and resolved 

all the issues of voting discrimination and racially polarized voting. 

That continues to this day. And the primary purpose of the Voting 

Rights Act is to address problems that started with the founding 

of this country related to issues of voting. And the purpose of the 

Voting Rights Act as stated in State of South Carolina v. Katzenbach was to banish the blight of voting discrimination once and for 

all. And that is what we ask you to do. 

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

for the record.] 

Senator CORNYN. Thank you very much, Professor. 

Ms. Thernstrom? 

STATEMENT OF ABIGAIL THERNSTROM, SENIOR FELLOW, THE 

MANHATTAN INSTITUTE, AND VICE CHAIR, U.S. COMMISSION 

ON CIVIL RIGHTS, LEXINGTON, MASSACHUSETTS 

Ms. THERNSTROM. Thank you for the opportunity to testify this 

afternoon. 

The Supreme Court’s decision in LULAC v. Perry does indeed 

have important implications for the debate over the reauthorization 

of the temporary emergency provisions of the Voting Rights Act. 

The House bill explicitly protects the ability of minority citizens to 

elect their preferred candidates of choice. But who qualifies as a 

candidate of choice? And what does an opportunity district look 

like? 

The LULAC appellants argued that Martin Frost was the candidate of choice for blacks, that his district was protected by the 

Voting Rights Act even though Frost is white, and his district, 

which was drawn for partisan reasons, was only 25 percent black. 

The Court rejected that argument, but would it have done so if, 

let’s say, the black percentage was 10 points higher? There are no 

legal standards either in place or proposed to answer that question. 

The problem of who counts as a minority representative runs 

through the infamous leaked Justice Department memo on 

preclearing the Texas plan. DOJ staff attorneys claimed that the 

white incumbent in District 29 was, in their words, ‘‘basically Hispanic;’’ therefore, that Democratic district was protected by the 

Voting Rights Act. District 25 as well was represented by a white 

Democrat deemed ‘‘responsive to minority interests.’’ It, too, was a 

Voting Rights Act entitlement, Justice Department staff argued. 

While LULAC appellants claimed that Mr. Frost counted as a 

black representative, the Hispanic incumbent Henry Bonilla, they 

suggested, was not truly Hispanic because he was a Republican. 

And the Court did agree that taking too many Hispanic Democrats 

out of the district had deprived minority voters of electoral opportunity, even though the district remained majority Hispanic. So a 

Hispanic incumbent in a majority Hispanic district is not really 

Hispanic, but a white Congressman is described as black by DOJ 

staff and appellants. Both political parties can play such definitional games to further their partisan interests, and the Sensenbrenner bill, with its dangerously imprecise language, encourages 

such gamesmanship. 

14

Definitional games have long been integral to the Department of 

Justice enforcement process. Administration critics are charging 

bias in the enforcement of the preclearance provision—an amusing 

allegation given the fact that the Justice Department in the 1980’s 

and 1990’s used the Voting Rights Act to pursue an ideologically 

driven agenda in blatant conflict with Supreme Court interpretation of the statutory language. 

Most pertinent to LULAC, in the 1990’s the Justice Department 

saw purposeful discrimination lurking in every districting plan that 

contained less than the maximum number of possible majority-minority districts. And, remember, in enforcing Section 5, mere suspicion is sufficient to deny preclearance. 

This history is relevant to the House bill which would allow objections to electoral changes on suspicion of any discriminatory purpose. Overturning Bossier Parish II, the bill would reinstate the 

power of the Justice Department to play with charges of illegal 

purpose, undefined, in order to reject districting plans it does not 

like, positively inviting partisan mischief. 

Moreover, such an open-ended definition of discriminatory purposes asks the Justice Department to settle broad questions of electoral equality that are inappropriate for a process of swift administrative review. Resolving such questions requires the specific detailed idiosyncratic knowledge of race and politics in a local jurisdiction that only a Federal district court can obtain in the course 

of a trial. Where discriminatory intent is suggested, plaintiffs can 

always bring a 14th Amendment suit. The statutory amendment is 

unnecessary. 

Section 5’s proposed language cannot be administered like a 

highway bill. Enforcement depends on unacknowledged normative 

assumptions. The murky language of Section 2 protection against 

ill-defined discriminatory results already has courts immersed in 

what Justice Thomas, echoing Justice Frankfurter, has called ‘‘a 

hopeless project of weighing questions of political theory.’’ But at 

least the project is one in which judges, disciplined by the structure 

of trials and appeals are engaged. Not so with the administrative 

of Section 5. The opaque language of the proposed House bill will 

further empower Justice Department attorneys who make 

preclearance decisions behind closed doors, who have no need to explain their reasoning, and are almost inevitably driven by normative and partisan convictions, which may vary from one administration to the next. 

America’s racial landscape has fundamentally changed in the 

last 40 years. The core provisions of the Voting Rights Act are permanent. Basic 15th Amendment rights are secure. The issue today 

is the reauthorization of the emergency provisions that were constitutionally radical and, thus, initially expected to last only 5 

years. What precisely is needed 41 years later? Congress has had 

the time, could take the time to think about how to answer that 

question with great care. I realize it is not likely to do so. I still 

wish it would. 

Thank you. 

[The prepared statement of Ms. Thernstrom appears as a submission for the record.] 

15

Senator CORNYN. Thank you very much. We will proceed to a 

round of questions. 

Senator Feingold is here, the Ranking Member of the Subcommittee. I would be glad to defer to you for any opening statement you would like to make. 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Thank you, Mr. Chairman. We have held several hearings on the Voting Rights Act, both in the full Committee 

and in this Subcommittee, and we have been fortunate to have several outstanding witnesses participate in this process. I think we 

have established a solid legislative record for this legislation. 

That said, I am glad that this is the last hearing. It is time to 

move to the next stage of the legislative process and to bring this 

bill before the Committee so that it can continue on to the full Senate, where it is my hope that the Majority Leader will bring it up 

for a vote before the August recess. 

The VRA expires in 2007. This law is too important to take up 

under a ticking clock of expiration. We need to complete the authorization process in this Congress this year. We have a bipartisan and bicameral consensus, and we should move forward. 

I have to say that I am puzzled by comments by some Members 

of Congress and critics who continue to argue that certain provisions of the Voting Rights Act are no longer necessary because we 

are living in a different era and that ‘‘there is no longer racial bias’’ 

in certain areas with a history of discrimination in voting rights. 

The Supreme Court in LULAC v. Perry, of course, found otherwise. The Court ruled that Texas did, in fact, violate Section 2 of 

the Voting Rights Act when it diluted the voting power of Latino 

voters in District 23. I do not want to take a whole lot of time talking about the decision because I want to get into the question part. 

But I just want to note that although the Court’s decision gives us 

some indication of how the current Court might rule on future Voting Rights Act cases, it provides no justification for slowing down 

or holding up consideration of the Chairman’s reauthorization bill. 

Mr. Chairman, that is the only opening statement I want to 

make. Thank you. 

Senator CORNYN. Thank you, Senator Feingold. 

Mr. Clegg, let me start with you. During the course of the discussions and hearings on reauthorization of Section 5 and Section 203, 

the main expressed concern is that we not pass legislation which 

will be vulnerable to a constitutional challenge—in other words, be 

engaged in a futile act insofar as the Supreme Court in applying 

the constitutional standard to that legislation by which they would 

judge it. 

Would you describe for us what you believe, if we were to reauthorize Section 5 in its current form as proposed, what the constitutional challenge would be and your assessment as to whether 

the Court would indeed uphold it or strike it down? 

Mr. CLEGG. Sure, I would be delighted to. I appreciate the question because actually one of the things that I wanted to clarify, as 

I was listening to my colleagues’ testimony here, is that I do not 

16

think that the Perry decision tips the Court’s hand on what the justices are likely to do if such a challenge is brought. In fact—— 

Senator CORNYN. Indeed, if I can interject there, Perry did not 

involve Section 5. It was a Section 2 case, right? 

Mr. CLEGG. That is exactly right, and even more explicitly than 

that, Justice Scalia’s opinion, which was joined by three other Justices, has a footnote that says, ‘‘No party here raises a constitutional challenge to Section 5 as applied in these cases, and I assume its application is consistent with the Constitution.’’ So, he is 

not saying that it is Constitutional; he is just saying that, because 

it has not been challenged, he is not going to address that question. 

As I explain in some detail in my written statement, I think that 

Section 5, if it is reauthorized, would be constitutionally vulnerable. I think it would be unconstitutional. I think the Court is likely to strike it down, and I think the Court should strike it down. 

There are basically two ways in which Section 5 is constitutionally vulnerable. One is that it is extraordinarily intrusive in 

matters that are generally left to the States, and sometimes textually committed to the States. And in addition to that, it uses an 

effects test, which the Court has said goes beyond Congress’s authority under the 14th Amendment and the 15th Amendment. The 

Court has said that you have to have disparate treatment in order 

for those amendments to be violated, and that if Congress goes beyond that and prohibits State actions that are not disparate treatment, it can do so only if it is congruent and proportional to stopping disparate treatment. 

I do not think the record has been made for that here. I think 

that the problem is compounded by the fact that some States are 

covered and other States are not. And I do not think that the 

record that Congress has now supports that discrimination among 

the different States. 

I think that what Congress would have to do in order to prevent 

a successful constitutional challenge is show that the covered jurisdictions have a much worse record than the non-covered jurisdictions when it comes to intentional racial discrimination in 2006; 

and that the use of a preclearance mechanism and an effects test 

is essential in order to prevent that intentional discrimination. And 

I do not think the record has been made to do that, and I do not 

think you can make that record. 

Senator CORNYN. We will have a chance to ask more than one 

round, but let me, before I turn it over to Senator Feingold in 36 

seconds here, ask Mr. Carvin: Do you agree with Mr. Clegg’s analysis or do you have a different view? 

Mr. CARVIN. No, and as always it was succinctly stated, and with 

the 26 seconds left, I will just add—— 

Senator CORNYN. Well, that does not apply to you. That applies 

to me. 

[Laughter.] 

Mr. CARVIN. All right. Look, Roger walked through the three factors that are very troublesome. It reverses all the normal principles 

of federalism. It singles out, apparently on an arbitrary basis, what 

the voting patterns were in 1968, some States to suffer these special burdens and others to be exempt, for a law that will extend 

out to 2032—so, literally, you know, 70-odd years past the time 

17

that the formula used for triggering was existent. And, of course, 

the City of Boerne point, which is that you are exceeding the prohibitions in the 14th and 15th Amendments, all rendered constitutionally vulnerable. 

The one additional point I would add is that I think that the provisions of the bill, Section 5 of the bill, which overturned Georgia

v. Ashcroft as well as Bossier Parish II, make it even more constitutionally vulnerable because, after all, you are making the law 

more race conscious, for the reasons I have identified, more of a 

partisan preference, and it is very odd. And I do not think the 

Court will accept the notion that Georgia in 2006 or California in 

2006 is subject to greater constraints on its redistricting and voting 

changes than was Mississippi in 1965. So it is very odd that 40 

years into this process, in the face of all the tremendous gains that 

have been made in the political and electoral landscape, that Congress would actually be ratcheting up the burdens on the covered 

jurisdictions at this late date. 

Senator CORNYN. Ms. Thernstrom? 

Ms. THERNSTROM. Could I very quickly comment on that? There 

is an additional point here. The trigger for coverage rests on the 

inference of intentional discrimination from the combination of low 

voter turnout and the presence of a literacy test. That statistical 

trigger made sense in 1965. It does not make sense today. And, in 

fact, even in 1970, when the emergency provisions were, of course, 

reauthorized for the first time, there was no reason to assume intentional discrimination on the basis of low voter turnout and the 

literacy test in, for instance, Manhattan but not in Queens—two 

boroughs in New York. 

Over the years, the coverage has become increasingly arbitrary. 

Ms. IFILL. Might I be heard on this, Senator? 

Senator CORNYN. Sure. I will come back to you, if you do not 

mind, because I hate to intrude on Senator Feingold’s time. So let’s 

turn over to him. We will come back for some more questions. 

Thank you. 

Ms. IFILL. Thank you. 

Senator FEINGOLD. Mr. Chairman, I have here 17 statements 

and letters in support of S. 2703 from a wide variety of organizations, companies, and prominent individuals. I ask that they be included in the record. 

Senator CORNYN. Without objection. 

Senator FEINGOLD. Mr. Chairman, I would ask Professor Ifill to 

say what she would like to say. 

Ms. IFILL. Thank you. I wanted to comment on just a couple of 

the points that were made, to first of all comment on the concern 

that Section 5 reauthorization would be unconstitutional because it 

violates principles of federalism. 

The Supreme Court has reviewed on several occasions this claim 

and this contention, and, in fact, in LULAC v. Perry, Justice Scalia, 

joined by the three most conservative members of the Court, repeats what the Supreme Court held years ago in South Carolina

v. Katzenbach. And what he said in LULAC v. Perry in determining 

that compliance with Section 5 would constitute a compelling State 

interest that would justify race-conscious districting, ‘‘We long ago 

upheld the constitutionality of Section 5 as a proper exercise of 

18

Congress’s authority under Section 2 of the 15th Amendment to enforce that Amendment’s prohibition on the denial or abridgment of 

the right to vote.’’ 

I read that sentence as making it quite clear that there is no new 

threat to the constitutionality of Section 5 based on the question 

of federalism and intrusion into State control. 

Second, with regard to the use of the effects test and the requirement that when that test is used, it be done so in a way that is 

congruent and proportional—and as that relates to the question of 

the States that are covered and the trigger mechanism—it seems 

to me here that one has to read the Act as part of a whole. The 

Act requires that there are certain States that, based on the trigger, are covered by Section 5. But the Act also permits States and 

jurisdictions to bail out if they are able to prove that they no longer 

engage in discrimination. And it also provides opportunities for jurisdictions to be bailed in through the pocket trigger. 

And if one reads the entire statute together, then what it looks 

like is a rational and workable way in which Congress can target 

the jurisdictions that have the longest and most egregious history 

of discrimination, a history that in many jurisdictions, as evidenced 

in LULAC v. Perry, is unbroken as it relates to racially polarized 

voting and discrimination in redistricting; and then provide mechanisms so that States or jurisdictions can be relieved of their obligations under Section 5, or States or jurisdictions where they should 

be covered by Section 5 can be required to engage in preclearance. 

So if one reads it all together, it seems to me it provides a rational and workable scheme that Congress is well within its authority 

under Section 5 to create—to enforce its obligations under the 15th 

Amendment. 

Senator FEINGOLD. Ms. Perales, Professor Ifill anticipated the 

question I was going to ask you. With all the hand-wringing we 

have heard about the possible constitutional problems of Section 5, 

including from Mr. Clegg just now, do you believe that it is an open 

question at this point in the minds of the Justices on the Supreme 

Court? 

Ms. PERALES. No, it is absolutely not an open question. I would 

also like to address with respect to 203, which somehow floated 

into our discussion of this case, even though this case has nothing 

to do with Section 203, that there are still, of course, many hundreds of thousands of voters, even just in my State of Texas, who 

suffer from intentional discrimination as a result and who as a result do not have—did not have the opportunity to learn English—

these are native-born citizens—and who need the bilingual provisions of the Voting Rights Act and for whom, of course, this is perfectly constitutional, and no serious scholar challenges the constitutionality of Section 203. 

Senator FEINGOLD. Ms. Perales and Professor Ifill, Mr. Clegg 

stated in his written testimony that, ‘‘The Voting Rights Act has 

become an instrument for partisan gerrymandering.’’ I happen to 

disagree with Mr. Clegg and was hoping you would please share 

your views on this characterization. Ms. Perales? 

Ms. PERALES. I would like to address that. Thank you. 

I know that there is concern about this, and I think some of it 

arises from confusion by observers about the LULAC v. Perry case. 

19

There is confusion about which claims were raised by which appellants, and also which claims were upheld and which ones were not. 

So I would like to make clear, first of all, that there is nothing in 

LULAC v. Perry, for example, that creates confusion around the 

question of who is the preferred candidate of minority voters. This 

is, of course, very well established in the area of voting rights law. 

And in this particular case, the Supreme Court ruled that the incumbent in District 23 was not preferred by Latino voters because 

he only received 8 percent of the support from Latino voters in his 

district—not a close call, not a confusing question in the least. 

Similarly, the Court had no problem concluding District 23 was 

an opportunity district. This is also very well established and not 

confusing in this case or in any other area. 

I wanted to add that for Latinos, particularly in the Southwest, 

opportunity to elect often involves comprising the majority of the 

district, and so for that reason, the language in the current bill, 

now transitioning to the bill that you have before you, regarding 

opportunity to elect the preferred candidate is not language that 

expands the protection of the Voting Rights Act to influence district. It talks about opportunity to elect, not ability to chime in. 

And these are important words. They mean something. Opportunity to elect, as I mentioned before, for us often means comprising the majority or—in fact, it almost always means comprising 

the majority for us, particularly in Texas. It may also mean coalition, but it does not mean—and I am hereby referring to the three 

categories that were set out in Georgia v. Ashcroft—coalition, influence, and majority district. 

It does not do what Mr. Carvin—disagreeing respectfully with 

my colleague, it does not do what he says it does. It is a limited 

fix to a decision that is, in our opinion, not correct. 

Finally, with respect to Bossier II and the language in the bill, 

Bossier II, if limited by the language in the bill, would not unleash 

a frenzy of maximization in redistricting. It would only mean that 

actions taken with the purpose of racial discrimination would violate Section 5. Again, very limited, and thus, overall, I do not think 

that any of these measures nor the decision in LULAC v. Perry

really does inject partisanship into the Voting Rights Act. And I 

say that because we did not litigate Democratic claims, we did not 

litigate Republican claims, and our claims were the only ones that 

were upheld. 

Senator FEINGOLD. Professor Ifill? 

Ms. IFILL. Senator, I have in the last year heard the Voting 

Rights Act blamed for partisan gerrymandering, residential segregation, people identifying themselves by race, and a whole list of 

other of society’s ills, all of which existed prior to the enactment 

of the Voting Rights Act in 1965 in the United States and which 

continued to exist in the United States but are most certainly not 

caused by the Voting Rights Act. 

Earlier, Mr. Carvin said that the Voting Rights Act has now injected race in such a way into a statute that was designed to assure racial neutrality, and respectfully, I disagree. Section 5 was 

not actually designed to assure racial neutrality. By requiring that 

jurisdictions submit any voting changes to the Department of Justice or to the D.C. District Court, Section 5 of the Act required juVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
20

risdictions to actually make an assessment, to look at race, to determine whether or not a plan that they were proposing would result in the diminution of voting strength, of minority voting 

strength. 

It is important to remember that from the outset the Voting 

Rights Act was explicitly targeted at race. It recognized that the 

exclusion of racial minorities from full participation in the political 

process is one of the worst ills in a democratic society. And under 

Congress’s enforcement power under the 15th Amendment, Congress was authorized to take drastic action to address that problem. So the Voting Rights Act is not a race-neutral act. It is a raceconscious act. 

And then, finally, I would just note with regard to the issue of 

the districts that were subject to dispute in LULAC v. Perry, I find 

it quite curious and interesting that several of the districts that 

were in dispute—District 23 that was dismantled and later District 

24—had, it seems to me, the kinds of characteristics that I have 

heard Ms. Thernstrom over the years and others say we would 

want in our political system. District 24 was an integrated district 

with a 50-percent Anglo population, a 25-percent African-American 

population, and I believe a 20-percent Latino population. The candidate of choice of black voters in that district was a white person—Martin Frost. I thought those were the kinds of outcomes that 

we wanted to see happen, that we wanted to move away from assuming that black voters had to support only black candidates and 

white voters only white candidates. 

District 23, likewise, was a district in which Latino voters did 

not support the Latino incumbent. Once again, the voters were exercising their political choice not based on race, but based on the 

interests of their community. And yet those districts are not lauded 

and held up as the kind of goal that we sought with the Voting 

Rights Act. But instead those districts are called the result of partisan gerrymandering. 

Senator FEINGOLD. Professor Avila, I am out of my time, but if 

you want to just quickly, if the Chairman would permit, make a 

comment. 

Mr. AVILA. I just wanted very briefly to add that in terms of 

whether Section 5 is involved with partisanship, well over—there 

are about 1,100 letters of objection that have been issued by the 

U.S. Department of Justice under Section 5 and well over probably 

around 90 percent of all of those have involved nonpartisan city 

council races, have involved nonpartisan school district races, have 

involved nonpartisan special election district, nonpartisan county 

commissioners. 

So Section 5 is not about partisanship. It is about providing political access to minorities. 

Senator FEINGOLD. Mr. Chairman, thank you for the additional 

time. 

Senator CORNYN. Sure. 

I would like to get the reaction from each of you to this question. 

This bill is predicated on election returns in 1964, 1968, and 1972. 

My question is: Wouldn’t it make better sense to determine what 

the coverage of Section 5 is to base them on elections most recent 

in time, 2000, 2004 Presidential elections? And I would like for you 

21

as part of the question to note that African-American voter registration now in the areas covered by Section 5 exceeds that of the 

U.S. generally. And, finally, as part of the question, since 1995, the 

highest percentage of objections sustained to submissions by covered districts, the highest was less than one-half of 1 percent. That 

is from 1995 to the most current we have. For example, 2005, it 

was 3,811 submissions and only one objection sustained. 

I would like to get your reaction, each of you, to both the triggers 

of those elections predicated on 1964, 1968, 1972, why it does not 

make more sense to trigger that with 2000 and 2004, and particularly get your explanation as to why you think that coverage under 

those jurisdictions that are covered by Section 5 where AfricanAmerican voter registration exceeds that of the Nation generally 

and what this sort of ratio of objections to submissions, why that 

makes sense. Mr. Clegg? 

Mr. CLEGG. I think you are exactly right. I think that it makes 

perfect sense in 2006 to re-evaluate where we are as a Nation in 

terms of discrimination in voting. I do not believe that there is no 

longer any discrimination in voting. I do not know anybody who believes that. Of course, there are still instances of racial discrimination in voting. 

But the question is whether that kind of disparate treatment exists to a degree and in the kind of pattern that supports the approach that was written into this bill 41 years ago. And, therefore, 

I think Congress needs to look throughout the United States to see 

whether there is still disparate treatment and to what degree. One 

thing Congress can look at to determine that is voter registration 

patterns, but there may be other things that it needs to look at, 

too. 

You also need to compare whatever evidence of discrimination 

you find in the covered jurisdictions—to the extent of discrimination that you find in non-covered jurisdictions if you are going to 

continue to single out some jurisdictions and not others. 

And, finally, you need to ask whether the appropriate mechanism 

for fighting that disparate treatment is the preclearance mechanism because of the federalism problems that it raises, and whether it includes an effects test, because of the constitutional problems 

that an effects test raises and because of the fact that the use of 

the effects test has actually encouraged racial discrimination and 

racial gerrymandering. 

Senator CORNYN. Professor Ifill? 

Ms. IFILL. With regard to the trigger, Senator, I think what 

underlies that question is whether or not one regards the history 

of egregious discrimination in the jurisdictions that are covered by 

Section 5 to be relevant, to have continuing relevance to the question of monitoring under Section 5. And I think that most scholars 

and most litigators in the voting rights area would agree that that 

history is relevant. 

The triggers that were found were used to reflect that history of 

discrimination. Registration can be a symptom of the problem, but 

registration itself is not necessarily the problem. And so Congress 

used these triggers as a way of identifying those jurisdictions that 

reflected through these symptoms that history of discrimination. 

But it certainly did not suggest that that is the only way and that 

22

is the benchmark by which we determine that a jurisdiction has a 

problem with discrimination in voting. And that is why once again 

I suggest that it is important to look at the Act as a whole, to recognize that Congress has anticipated both a way in and a way out 

for jurisdictions that discriminate that are not covered by the 

preclearance formula and for jurisdictions that are covered by the 

preclearance formula but that can demonstrate that they do not engage in discrimination. And read as a whole, it seems to me there 

is nothing wrong with continuing to use the trigger formula that 

was based on that history of discrimination. 

With regard to the second question about DOJ objections, I think 

that the number of objections, really, if you look at that in the abstract, fails to really account for the deterrent effect of Section 5 

preclearance, and that is that many jurisdictions respond to the 

Department of Justice in a variety of ways. Sometimes jurisdictions 

withdraw the proposed change. In other instances, the Department 

of Justice asks for more information, and jurisdictions provide that 

additional information which can result in a change in the plan. 

And so the whole process, the whole reality that one has to submit the plan for preclearance means that jurisdictions take care 

and, as I suggest, are required to look at their plans to determine 

whether or not they are retrogressive, and it is also true that the 

administration by the Justice Department in reviewing those plans 

very often results in a change in plans that are submitted or the 

withdrawal of plans. And without taking into account that information, I think you cannot really read very much from the fact that 

the number of objections themselves are small. 

Senator CORNYN. Ms. Perales? 

Ms. PERALES. Thank you. Just briefly, I will do the Southwest 

spin on this, which is that many of the Southwestern States were 

brought into coverage under Section 5 through the use of the trigger in 1972. That, of course, is perfectly appropriate, and, in fact, 

these jurisdictions still merit the supervision of Section 5 as evidenced by the continued discrimination found both by the Justice 

Department as well as the Court, for example, in Texas, where we 

have had both a DOJ objection statewide in this decade as well as 

the Supreme Court finding of discrimination in violation of the Voting Rights Act in this decade. This tells us that the initial trigger 

is still very useful and very viable. 

Similarly, with respect to Arizona, Arizona has also had statewide objections this decade and in, I believe, the previous two decades with respect to statewide plans. 

Finally, with respect to the number of submissions to the Justice 

Department and how many objections are made, there are still very 

important objections being made, and even this number of them is 

making a tremendous difference for minority voters. And as I mentioned, the objections in Texas, the objections in Arizona, which are 

just the statewide ones that I am mentioning, but also at the local 

level there are objections that are helping every day, every year 

helping minority voters participate on an equal footing with others. 

As Professor Avila mentioned, we cannot discount the widespread noncompliance. There are many, many, many jurisdictions 

that are simply not submitting their changes and violate Section 5 

when they implement them. 

23

And, finally, I wanted to give an example of the deterrence effect 

of Section 5 in the city of Seguin, which is in between Austin, 

Houston, and San Antonio. The city of Seguin, when they found out 

that they had a majority of districts in their city council plan that 

were going to be Latino in the upcoming redistricting, they dismantled one of those districts so as not to have a Latino majority in 

the city council. This, of course, is nonpartisan elections. 

When they submitted this plan to the Justice Department, the 

Justice Department expressed concerns, asked for more information. As a result, that plan was withdrawn and a better plan, one 

that actually reflected the Latino majority of the city and the five 

council districts was ultimately submitted. And so this is an example that I can think of from my experience where Section 5 worked 

exactly the way it should, even though there was not an objection 

interposed by the Justice Department. 

Senator CORNYN. Before Mr. Carvin answers, let me just get a 

quick answer from Professor Ifill and Ms. Perales. If you think Section 5 serves a useful deterrent effect when it comes to discrimination against minority voting, do you support its extension beyond 

the covered jurisdictions? 

Ms. IFILL. Well, I simply just do not think it would be possible 

for the Department of Justice to administer what you are referring 

to as a kind of nationwide coverage of Section 5. I think it would 

essentially be the death knell for Section 5. I think it would be impossible to—— 

Senator CORNYN. Do you think it is desirable if it were possible? 

Ms. IFILL. I think it makes more sense, frankly, for Congress to 

utilize a program that is a workable program and one that is based 

on a history of discrimination in particular jurisdictions, and as 

Congress has done, to provide the opportunity to expand that coverage where appropriate and to remove that coverage where appropriate. It seems to me that makes the most sense rather than being 

overbroad. And, of course, being overbroad would naturally run one 

into a constitutional problem. 

Senator CORNYN. Ms. Perales, do you agree, or do you have a different—— 

Ms. PERALES. Yes, I do agree. It is not appropriate to expand 

Section 5 coverage nationwide. 

Senator CORNYN. Mr. Carvin? 

Mr. CARVIN. Well, that touches on, of course, the fundamental dilemma here, which is nobody is denying that discrimination exists, 

but what the record makes fundamentally clear is that there is no 

rational way of suggesting that the covered jurisdictions have more 

ongoing official discrimination than the non-covered jurisdictions, 

whatever benchmark or analysis you use—voter turnout, election 

intimidation. 

The House report is actually very interesting because I think if 

you look at it, you will see that the examples they come up with 

and the analysis they come up with of what people would consider 

real voting discrimination exists disproportionately, far disproportionately in the non-covered jurisdictions than it does in the covered jurisdictions. 

So you have to ask yourself whether or not, to go back to the 

quote that has been bandied about here from Justice Scalia, whethVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
24

er or not there is some rationale of official discrimination which 

justifies this extraordinary disparate treatment. I cannot understand why Monterey County is viewed somehow in California worse 

than Arkansas or Oklahoma, and I do not think any rational person could suggest that the problems there are so different in kind 

that this extraordinarily differential treatment from the Federal 

Government is authorized. 

There has been some discussion here of bail-out and bail-in provisions, but we all know that the bail-in provisions are virtually 

nonexistent, and the bail-out provisions cannot be used because if 

you have one statewide objection, it basically condemns all the subordinate political jurisdictions to being kept in. If it really is fair 

to look at circumstances as they exist in 2006 or 2020 or 2030, it 

would make a lot more sense not to have these relatively meaningless bail-out and bail-in provisions, but have a formula that is tied 

to some objective benchmark of minority opportunity and voter participation, all of which were proposed in the House and I think 

should be taken up by the Senate when it comes time to consider 

the bill. 

Thank you. 

Senator CORNYN. Professor Avila? 

Mr. AVILA. Yes, I would like to just say I agree with Professor 

Ifill’s comments with respect to the triggering concerns. I would 

just like to add with respect to the issue of the number of letters 

of objection to the number of submissions, as I indicated earlier, 

there is a substantial issue of noncompliance and it is just not me 

saying this. In 1968, the U.S. Civil Rights Commission indicated 

that there was a substantial issue of noncompliance. In 1970, when 

the Act was reauthorized, Congress again noted in testimony before 

Congress that there was a substantial issue of noncompliance. 

In 1975, the same thing occurred. In 1978, you had a GAO report 

that documented the fact that there was a substantial issue of noncompliance. You had the Supreme Court in Perkins v. Matthew document that there was a substantial issue of noncompliance. 

In 1982, you had Drew Days, who was the Assistant Attorney 

General for the Civil Rights Division, testifying before Congress 

that there was a substantial issue of noncompliance. 

In 1999 and 1996, the Supreme Court in Lopez v. Monterey 

County, as I stated earlier, was dealing with judicial district consolidations. They had not been submitted from 1968, so the issue 

of noncompliance is very significant. 

We have been doing some initial studies in various counties in 

California, and there are hundreds of annexations that have not 

been submitted for Section 5 preclearance. So that might in some 

part explain why we have this small number of letters of objection. 

Senator CORNYN. Ms. Thernstrom? 

Ms. THERNSTROM. Well, updating the trigger using simply 2004 

turnout would just continue the arbitrary nature of the coverage, 

and it is arbitrary. 

Look, in 1965, those who designed the Voting Rights Act knew 

precisely which jurisdictions needed to be covered, and they designed a statistical trigger to cover those jurisdictions; that is, they 

knew where you had a literacy test and low voter participation, the 

combination of black and white voter participation, under 50 perVerDate 0ct 09 2002 13:07 Mar 16, 2007 Jkt 033836 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\33836.TXT SJUD1 PsN: CMORC
25

cent—they picked the 50-percent statistic very carefully in order to 

get the right jurisdictions. Where you had that combination of a literacy test and low voter participation, you knew that that low voter 

participation was an indication of the intentional fraudulent use of 

literacy tests to disenfranchise blacks. 

There is no, there never was in interpreting this Act, an argument that low voter participation or participation under the 50-percent mark standing alone was an indication of intentional discrimination. And, indeed, the only reason, for instance, New York was 

covered in the 1970 reauthorization is because in that low turnout 

year, three boroughs in New York, but not the other two boroughs, 

fell just below the 50-percent turnout. So you had this arbitrary 

coverage. 

The complaints today about electoral discrimination, the complaints in 2000 and 2004 involved—in 2000, Florida counties that 

were not covered by the Voting Rights Act; in 2004, States like 

Ohio, not covered by the Voting Rights Act. I was part of an instrumental team that commissioned studies for the American Enterprise Institute. They are on the AEI website, showing levels of 

voter participation in the South, showing how high they are, higher 

than in the North in many States. 

You know, as Richard Hasen, a law professor who is for the reauthorization of Section 5, has said, ‘‘Bull Connor is dead.’’ And the 

racial landscape in America has changed. This bill does not reflect 

that. Updating the trigger in an arbitrary manner to 2004 turnout 

would not reflect that change either. The bill needs to come into 

conformity with racial reality more than four decades down the 

road. And four decades in civil rights time, you are talking about 

a revolution in racial attitudes in this country and the status of 

blacks, and Hispanics, who were, of course, not covered in 1965. 

But obviously the revolution has been particularly striking with respect to African Americans. 

Now, in terms of bail-out possibilities, for the reasons that Mike 

Carvin just said, bail-out is a joke. And that is the reason why few 

jurisdictions have indeed bailed out. And as for the deterrent effect, 

look, yes, lots of States were forced, in order to get the Justice Department off their back in the 1990’s, to draw maps that had a 

maximum number of majority-minority districts that came as close 

to proportional racial and ethnic representation as possible. I did 

not think proportional racial and ethnic representation was a value 

that was built into the Voting Rights Act, but it was what the Justice Department was insisting on. So the deterrent effect, in effect, 

forced jurisdictions to do what the Voting Rights Act never should 

have forced them to do, which violates basic American values. If 

you want to see that story, it is spelled out very nicely by the Supreme Court in Miller v. Johnson. You have to look at the district 

court opinion as well as the Supreme Court opinion. 

But it is a disgraceful story, and so I do not buy this whole argument about a deterrent effect, given the standards that the Justice 

Department has been using, which have nothing to do or not much 

to do with the actual statute. 

Senator CORNYN. This has, I know, been a long afternoon for you. 

We are going to have to wrap it up now because we actually have 

a meeting of several members of the Judiciary Committee on this 

26

subject at 5:15. I am going to have to leave. But we will leave the 

record open so that those members who were unable to come this 

afternoon—it has been a particularly hectic day and week. So that 

is the reason why—not for lack of interest—that people have not 

been here. We will leave the record open for 1 week for them to 

submit any additional questions in writing or submit any other materials for the record. 

Without objection, I am going to put in the record a number of 

articles, editorials, and statements by scholars and journalists that 

raise questions about the reauthorization as drafted. In addition, 

there is a report of the U.S. Commission on Civil Rights which will 

also be made part of the record. 

In conclusion, let me just thank each of you for being here and 

sharing with us your expertise and point of view. This is enormously important for all the reasons that we have discussed, and 

we are much better off for having your contribution. 

Thank you very much. 

[Whereupon, at 5:12 p.m., the Subcommittee was adjourned.] 

[Questions and answers, submissions for the record and an appendix follow.]

27


33836.001
28


33836.002
29


33836.003
30


33836.004
31


33836.005
32


33836.006
33


33836.007
34


33836.008
35


33836.009
36


33836.010
37


33836.011
38


33836.012
39


33836.013
40


33836.014
41


33836.015
42


33836.016
43


33836.017
44


33836.018
45


33836.313
46


33836.314
47


33836.315
48


33836.316
49


33836.019
50


33836.020
51


33836.021
52


33836.022
53


33836.023
54


33836.024
55


33836.025
56


33836.026
57


33836.027
58


33836.028
59


33836.029
60


33836.030
61


33836.031
62


33836.317
63


33836.318
64


33836.319
65


33836.320
66


33836.321
67


33836.322
68


33836.323
69


33836.324
70


33836.325
71


33836.326
72


33836.032
73


33836.033
74


33836.034
75


33836.035
76


33836.036
77


33836.037
78


33836.038
79


33836.039
80


33836.040
81


33836.041
82


33836.042
83


33836.043
84


33836.044
85


33836.045
86


33836.046
87


33836.047
88


33836.048
89


33836.049
90


33836.050
91


33836.051
92


33836.052
93


33836.053
94


33836.054
95


33836.055
96


33836.056
97


33836.057
98


33836.058
99


33836.059
100


33836.060
101


33836.061
102


33836.062
103


33836.063
104


33836.064
105


33836.065
106


33836.066
107


33836.067
108


33836.068
109


33836.069
110


33836.070
111


33836.071
112


33836.072
113


33836.073
114


33836.074
115


33836.075
116


33836.076
117


33836.077
118


33836.078
119


33836.079
120


33836.080
121


33836.081
122


33836.082
123


33836.083
124


33836.084
125


33836.085
126


33836.086
127


33836.087
128


33836.088
129


33836.089
130


33836.090
131


33836.091
132


33836.092
133


33836.093
134


33836.094
135


33836.095
136


33836.096
137


33836.097
138


33836.098
139


33836.099
140


33836.100
141


33836.101
142


33836.102
143


33836.103
144


33836.104
145


33836.105
146


33836.106
147


33836.107
148


33836.108
149


33836.109
150


33836.110
151


33836.111
152


33836.112
153


33836.113
154


33836.114
155


33836.115
156


33836.116
157


33836.117
158


33836.118
159


33836.119
160


33836.120
161


33836.121
162


33836.122
163


33836.123
164


33836.124
165


33836.125
166


33836.126
167


33836.127
168


33836.128
169


33836.129
170


33836.130
171


33836.131
172


33836.132
173


33836.133
174


33836.134
175


33836.135
176


33836.136
177


33836.137
178


33836.138
179


33836.139
180


33836.140
181


33836.141
182


33836.142
183


33836.143
184


33836.144
185


33836.145
186


33836.146
187


33836.147
188


33836.148
189


33836.149
190


33836.150
191


33836.151
192


33836.152
193


33836.153
194


33836.154
195


33836.155
196


33836.156
197


33836.157
198


33836.158
199


33836.159
200


33836.160
201


33836.161
202


33836.162
203


33836.163
204


33836.164
205


33836.165
206


33836.166
207


33836.167
208


33836.168
209


33836.169
210


33836.170
211


33836.171
212


33836.172
213


33836.173
214


33836.174
215


33836.175
216


33836.176
217


33836.177
218


33836.327
219


33836.328
220


33836.329
221


33836.330
222


33836.331
223


33836.332
224


33836.182
225


33836.183
226


33836.381
227


33836.382
228


33836.184
229


33836.185
230


33836.186
231


33836.187
232


33836.188
233


33836.189
234


33836.190
235


33836.191
236


33836.192
237


33836.193
238


33836.194
239


33836.195
240


33836.196
241


33836.197
242


33836.198
243


33836.199
244


33836.200
245


33836.201
246


33836.202
247


33836.203
248


33836.204
249


33836.205
250


33836.206
251


33836.207
252


33836.208
253


33836.209
254


33836.210
255


33836.211
256


33836.212
257


33836.213
258


33836.214
259


33836.215
260


33836.216
261


33836.217
262


33836.218
263


33836.219
264


33836.220
265


33836.221
266


33836.222
267


33836.223
268


33836.224
269


33836.225
270


33836.226
271


33836.227
272


33836.228
273


33836.229
274


33836.230
275


33836.231
276


33836.232
277


33836.233
278


33836.234
279


33836.235
280


33836.236
281


33836.237
282


33836.238
283


33836.239
284


33836.240
285


33836.241
286


33836.242
287


33836.243
288


33836.244
289


33836.245
290


33836.246
291


33836.247
292


33836.248
293


33836.249
294


33836.250
295


33836.251
296


33836.252
297


33836.253
298


33836.254
299


33836.255
300


33836.256
301


33836.257
302


33836.258
303


33836.259
304


33836.260
305


33836.261
306


33836.262
307


33836.263
308


33836.264
309


33836.265
310


33836.266
311


33836.267
312


33836.383
313


33836.384
314


33836.385
315


33836.386
316


33836.387
317


33836.388
318


33836.389
319


33836.390
320


33836.391
321


33836.392
322


33836.393
323


33836.394
324


33836.395
325


33836.396
326


33836.397
327


33836.398
328


33836.399
329


33836.400
330


33836.401
331


33836.402
332


33836.403
333


33836.404
334


33836.405
335


33836.406
336


33836.407
337


33836.408
338


33836.409
339


33836.410
340


33836.411
341


33836.412
342


33836.413
343


33836.414
344


33836.268
345


33836.269
346


33836.270
347


33836.271
348


33836.272
349


33836.273
350


33836.274
351


33836.275
352


33836.276
353


33836.277
354


33836.278
355


33836.279
356


33836.280
357


33836.281
358


33836.282
359


33836.283
360


33836.284
361


33836.285
362


33836.286
363


33836.287
364


33836.288
365


33836.415
366


33836.416
367


33836.417
368


33836.418
369


33836.419
370


33836.420
371


33836.421
372


33836.422
373


33836.423
374


33836.424
375


33836.425
376


33836.426
377


33836.427
378


33836.428
379


33836.429
380


33836.430
381


33836.431
382


33836.432
383


33836.433
384


33836.434
385


33836.435
386


33836.436
387


33836.437
388


33836.438
389


33836.439
390


33836.440
391


33836.441
392


33836.442
393


33836.443
394


33836.444
395


33836.445
396


33836.446
397


33836.447
398


33836.448
399


33836.449
400


33836.450
401


33836.451
402


33836.452
403


33836.453
404


33836.454
405


33836.289
406


33836.290
407


33836.291
408


33836.292
409


33836.293
410


33836.294
411


33836.295
412


33836.296
413


33836.297
414


33836.298
415


33836.299
416


33836.300
417


33836.301
418


33836.302
419


33836.303
420


33836.304
421


33836.305
422


33836.306
423


33836.307
424


33836.308
425


33836.309
426


33836.310
427


33836.311
428


33836.312
429


33836.455
430


33836.456
431


33836.457
432


33836.458
433


33836.459
434


33836.460
435


33836.461
436


33836.462
437


33836.463
438


33836.464
439


33836.465
440


33836.466
441


33836.467
442


33836.468
443


33836.469
444


33836.470
445


33836.471
446


33836.472
447


33836.473
448


33836.474
449


33836.475
450


33836.476
451


33836.477
452


33836.478
453


33836.479
454


33836.480
455


33836.481
456


33836.482
457


33836.483
458


33836.484
459


33836.485
460


33836.486
461


33836.487
462


33836.488
463


33836.489
464


33836.333
465


33836.334
466


33836.335
467


33836.336
468


33836.337
469


33836.338
470


33836.339
471


33836.340
472


33836.341
473


33836.342
474


33836.343
475


33836.344
476


33836.345
477


33836.346
478


33836.347
479


33836.348
480


33836.349
481


33836.350
482


33836.351
483


33836.352
484


33836.353
485


33836.354
486


33836.355
487


33836.356
488


33836.357
489


33836.358
490


33836.359
491


33836.360
492


33836.361
493


33836.362
494


33836.363
495


33836.364
496


33836.365
497


33836.366
498


33836.367
499


33836.368
500


33836.369
501


33836.370
502


33836.371
503


33836.372
504


33836.373
505


33836.374
506


33836.375
507


33836.376
508


33836.377
509


33836.378
510


33836.379
511

Æ


33836.380