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VOTING RIGHTS ACT:

THE CONTINUING NEED FOR SECTION 5

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

OCTOBER 25, 2005

Serial No. 109–75

Printed for the use of the Committee on the Judiciary

(

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

(II)

COMMITTEE ON THE JUDICIARY 

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman 

HENRY J. HYDE, Illinois 

HOWARD COBLE, North Carolina 

LAMAR SMITH, Texas 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

WILLIAM L. JENKINS, Tennessee 

CHRIS CANNON, Utah 

SPENCER BACHUS, Alabama 

BOB INGLIS, South Carolina 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

RIC KELLER, Florida 

DARRELL ISSA, California 

JEFF FLAKE, Arizona 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JOHN CONYERS, JR., Michigan 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

CHRIS VAN HOLLEN, Maryland 

DEBBIE WASSERMAN SCHULTZ, Florida

PHILIP G. KIKO, General Counsel-Chief of Staff 

PERRY H. APELBAUM, Minority Chief Counsel 

SUBCOMMITTEE ON THE CONSTITUTION

STEVE CHABOT, Ohio, Chairman

TRENT FRANKS, Arizona 

WILLIAM L. JENKINS, Tennessee 

SPENCER BACHUS, Alabama 

JOHN N. HOSTETTLER, Indiana 

MARK GREEN, Wisconsin 

STEVE KING, Iowa 

TOM FEENEY, Florida 

JERROLD NADLER, New York 

JOHN CONYERS, JR., Michigan 

ROBERT C. SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

CHRIS VAN HOLLEN, Maryland

PAUL B. TAYLOR, Chief Counsel 

E. STEWART JEFFRIES, Counsel 

HILARY FUNK, Counsel 

KIMBERLY BETZ, Full Committee Counsel 

DAVID LACHMANN, Minority Professional Staff Member 

(III)

C O N T E N T S 

OCTOBER 25, 2005

OPENING STATEMENT 

Page 

The Honorable Steve Chabot, a Representative in Congress from the State 

of Ohio, and Chairman, Subcommittee on the Constitution ............................ 1

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Ranking Member, Subcommittee on the Constitution ....... 2

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Member, Subcommittee on the Constitution .............. 2

The Honorable Howard Coble, a Representative in Congress from the State 

of North Carolina ................................................................................................. 3

WITNESSES 

Mr. Laughlin McDonald, Director, ACLU Voting Rights Panel 

Oral Testimony ..................................................................................................... 4

Prepared Statement ............................................................................................. 7

Mr. Robert Hunter, Voting Rights Litigator, Hunter, Higgins, Miles, Elam 

and Benjamin, P.L.L.C. 

Oral Testimony ..................................................................................................... 16

Prepared Statement ............................................................................................. 18

Mr. Ronald Keith Gaddie, Professor of Political Science, The University of 

Oklahoma 

Oral Testimony ..................................................................................................... 29

Prepared Statement ............................................................................................. 31

Mr. Richard Engstrom, Professor, The University of New Orleans 

Oral Testimony ..................................................................................................... 49

Prepared Statement ............................................................................................. 51

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Statement of the Honorable John Conyers, Jr., a Representative in Congress 

from the State of Michigan and Member, Subcommittee on the Constitution ........................................................................................................................ 99

Statement of the Honorable Linda T. Sa ́nchez, a Representative in Congress 

from the State of California ................................................................................ 99

Appendix to the Statement of Laughlin McDonald: ‘‘The Need to Expand 

the Coverage of Section 5 of the Voting Rights Act in Indian Country’’ ......... 101

Appendix to the Statement of Laughlin McDonald: ‘‘Voting Rights Act in 

Indian Country: South Dakota, A Case Study’’ American Indian Law Review, 29 Am. Indian L. Rev. 43 ........................................................................... 149

Appendix to the Statement of Robert Hunter: ‘‘Racial Gerrymandering and 

the Voting Rights Act in North Carolina.’’ Campbell Law Review, 9 Campbell L. Rev. 255 ..................................................................................................... 166

Insterted into the Record by Chairman Chbot on October 26, 2005: Beer 

v. United States (425 U.S. 130, 96 S.Ct. 1357) .................................................. 204

(1)

VOTING RIGHTS ACT:

THE CONTINUING NEED FOR SECTION 5

TUESDAY, OCTOBER 25, 2005

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON THE CONSTITUTION, COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:00 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chair of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. I want to thank 

everyone for being here this afternoon. This is the Subcommittee 

on the Constitution and it is the fourth in a series of hearings this 

Committee has been holding examining the impact and the effectiveness of the Voting Rights Act over recent years. This afternoon, 

the Committee will continue its examination of section 5 and the 

preclearance requirements it imposes on covered jurisdictions. 

Again, I would like to thank all of my colleagues for taking the 

time to give our oversight responsibilities the time and effort that 

they deserve. 

I might note that we did have two additional hearings scheduled 

for Thursday. It has come to my attention as a result of some 

scheduling conflicts and changes and difficulties, that those two 

hearings will not occur on Thursday and will in all likelihood be 

rescheduled for next week. And we will give further information as 

that becomes available. 

This afternoon we will focus on the Supreme Court’s interpretation of section 5’s preclearance requirements and the retrogressive 

standard for whether a change submitted by a covered jurisdiction, 

quote, ‘‘has the purpose or effect of denying or abridging a citizen’s 

right to vote on account of race, color, or language minority status,’’

unquote. 

In 1976, the Supreme Court in the case of Beer v. United States

set forth the standard for evaluating section 5 preclearance submissions. Recognizing that Congress intended section 5 to ensure that 

the ability of minority groups to elect candidates of choice and to 

participate in the political process did not backslide, the Court held 

that only those changes that would not lead to a retrogression in 

the positioning of racial minorities with respect to their effective 

exercise of the electoral franchise could be precleared. 

Subsequent decisions and enforcement actions conducted by the 

Department of Justice over the years have further defined retrogression, in the context of section 5, as quote, ‘‘a change in election 

law that results in an adverse effect on opportunities for a racial 

2

group to participate in the political process,’’ unquote. Such had 

been the standard until 2003, when the Supreme Court in Georgia 

v. Ashcroft deviated from this approach. 

The Georgia decision, which we will discuss later in the week, is 

unclear when defining what changes are retrogressive under section 5. It is clear that minority voters have progressed in the political process under the protection of the Voting Rights Act. However, Congress, in enacting section 5, intended not only to enable 

minority voters to register and cast ballots but to see their candidates of choice elected. 

During this hearing we will hear from our witnesses how minorities have made significant strides in the political process but yet 

how certain election or voting mechanisms that are submitted for 

preclearance under section 5 may dilute the full weight of the minority vote such to keep minorities from experiencing the full guarantee of the 15th amendment. 

And, again, we look very much forward to hearing our distinguished panel this afternoon. I will yield back the balance of my 

time and I will at this point recognize the gentleman from New 

York, the Ranking Member of this Subcommittee, Mr. Nadler, for 

the purpose of making an opening statement. 

Mr. NADLER. Thank you. I will be very brief in the opening statement. This is a continuation really of the hearing we started this 

morning on the continuing necessity for the section 5 preclearance 

requirements. We have heard this morning about some of the necessity. I assume we’ll hear more from our witnesses now. And I 

look forward to hearing from those witnesses and to hearing a discussion of the effects on section 5 on some of these recent Supreme 

Court decisions and whether any action should be taken by—— Mr. CONYERS. Would the gentleman yield to me? 

Mr. NADLER. Yes, I will. 

Mr. CONYERS. And that will save me from trying to get 5 minutes. I wanted to associate myself with the remarks of the Chairman of the Subcommittee. I think he described this, as you did, 

quite appropriately. 

And I also wanted to thank the Chairman and you for observing 

the moment of silence for the late Rosa Louise Parks, our Civil 

Rights leader, the mother of the Civil Rights movement, with 

whom I had the honor of being associated with for several decades. 

And then I would put my statement in the record and thank the 

gentlemen for yielding to me. 

Mr. NADLER. I thank the gentlemen. And now I will simply conclude by saying I look forward to hearing the testimony of the witnesses. And I yield back. 

Mr. CHABOT. Thank you. And, without objection, the statement 

will be entered into the record. 

Mr. CHABOT. Do any other Members of the Committee wish to 

make an opening statement this afternoon? If not, we will then 

proceed to the introduction of our witnesses. And again we want 

to thank all of you for being here this afternoon. And I might note 

that, without objection, all Members will have 5 legislative days to 

submit additional materials for the record. 

Our first witness, will be Mr. Laughlin McDonald. Mr. McDonald 

has a long and distinguished career in voting rights litigation. He 

3

is the Director of the ACLU’s Voting Rights Project, and in this capacity Mr. McDonald has played a leading role in eradicating discriminatory election practices since the original Voting Rights Act 

was passed back in 1965. 

Mr. McDonald also serves as the Executive Director of the Southern Regional Office of the ACLU, a position he has held since 1972. 

While at the Southern Regional Office, Mr. McDonald has won 

some of the most precedent-setting cases, including those that secured the principle of one person/one vote, ended the use of discriminatory at-large elections, and establishing the right of women 

to serve on juries. 

Mr. McDonald’s prior employment included membership on the 

faculty of the University of North Carolina. And he also practiced 

in a private law practice. We are honored to have you here with 

us this afternoon, Mr. McDonald. 

Our second witness will be Mr. Robert Hunter, Junior. Mr. 

Hunter is a former chairman of the North Carolina Board of Elections and a partner in the law firm of Hunter, Higgins, Miles, Elam 

and Benjamin located in Greensboro, North Carolina. 

Mr. Hunter has litigated a number of redistricting and voting 

rights cases, including serving as the original attorney for the intervenors in one of the landmark section 2 voting rights cases, 

Gingles v. Thornburg. We welcome you here, Mr. Hunter. 

And I might like to very briefly recognize one of the other chairmen of the Judiciary Subcommittees, one of the strongest Members 

of the Judiciary Committee, Mr. Howard Coble. And Howard, I 

know that you have a long and distinguished association with Mr. 

Hunter. I don’t know if you want to mention anything relative to 

that. 

Mr. COBLE. Thank you, Mr. Chairman. And I will be very brief. 

What I am about to say may diminish Mr. Hunter’s stature in the 

eyes of some of my colleagues. It was probably he, more than any 

other person, who convinced me to become a congressional candidate back in the dark ages. But it is good to be here, Mr. Chairman. 

Mr. CHABOT. Without objection, the record will note the groans 

from the dias, all in good spirit I am sure. 

Thank you, Mr. Chairman. We appreciate your kind words. 

Our third witness will be Professor Ronald Keith Gaddie. Professor Gaddie is currently a professor of political science at the 

University of Oklahoma where he teaches research methods, southern politics, and electoral politics. In addition to teaching, Professor 

Gaddie serves as a litigation consultant in voting rights and redistricting cases, including those in Alabama, Georgia, Illinois, New 

Mexico, Oklahoma, South Dakota, Texas, Virginia, and Wisconsin. 

Professor Gaddie has written extensively on political reform, 

Southern politics, and voting. He is in the process of working on 

two books. And we welcome you here, Professor Gaddie. 

Our fourth and final witness will be Dr. Richard Engstrom. Dr. 

Engstrom is a noted speaker in election systems and minority 

rights and has testified extensively in voting rights cases since the 

1970’s. He currently is a resource professor of political science and 

endowed professor of African Studies at the University of New Orleans. As I said to the former Mayor Marc Morial when he testified 

4

before this Committee last week, our thoughts and prayers are 

with you and the other citizens of New Orleans in the trying times 

that you have had of late. And we thank you very much for being 

here and testifying today. 

As I said, we have a very distinguished panel here this afternoon, and as I explained to the previous panel this morning, we 

have a lighting system here that helps us keep on track relative 

to how long you testify. We have what is called the 5-minute rule 

and the clocks will keep you on time there. It will be on for 4 minutes green. It will turn to yellow, let you know you have 1 minute 

to wrap up. When it goes red, that means your 5 minutes is up. 

We won’t gavel you down immediately, but we would ask you to 

keep within that 5-minute time frame as much as possible. 

It is also the practice of the Committee to swear in all witnesses 

appearing before it, so if you would not mind, if you could all 

please stand and raise your right hands. 

[Witnesses sworn.] 

Mr. CHABOT. All witnesses have indicated in the affirmative and 

we’ll now hear from our first witness. Mr. McDonald you’re now 

recognized for 5 minutes. 

TESTIMONY OF LAUGHLIN McDONALD, DIRECTOR, ACLU 

VOTING RIGHTS PANEL 

Mr. MCDONALD. Well, thank you very much, Mr. Chairman, for 

inviting me to appear and share my thoughts on the need to continue section 5 of the Voting Rights Act. As you might imagine, I 

have attended a number of conferences recently on the issue of extension of the Voting Rights Act, and I have been struck with the 

fact that invariably someone will say we don’t need section 5 anymore because Bull Connor is dead. Well I’ve always found that to 

be simple-minded in the extreme. Bull Connor is dead, but so is 

Thomas Jefferson, so is George Washington, so is my own grandfather, so is William Tecumseh Sherman, so is William Shakespeare, and the list goes on and on. Simply because all of these 

people are dead, it does not mean that they are erased from memory and history, that their legacies no longer exist, that they do not 

influence the way we think and act. The past continues to inform 

the present. 

There is, in fact, abundant modern-day evidence showing that 

section 5 is still needed in this country and that the right to vote 

is still in jeopardy. And one of those examples involves Charleston 

County, South Carolina, which prides itself on its aristocratic traditions and its civility. But in a 2004—not 1904—but in a 2004 opinion, the 4th Circuit Court of Appeals unanimously affirmed a decision in the District Court invalidating Charleston County’s at-large 

elections on the grounds that evidence presented by the parties 

supports the district court’s conclusion that voting in Charleston 

County council elections is severely and characteristically polarized 

along racial lines. And it noted the rarity with which Blacks were 

elected to office of the county council, and that disproportionately 

few minorities had ever won any of the at-large elections in 

Charleston County. 

And the factors contributing to minority vote dilution found by 

the District Court included—and these are quotes—‘‘the ongoing 

5

racial separation that exists, socially, economically, religiously, in 

housing, in business patterns, which makes it especially difficult 

for African-Americans to get votes from non-African-American voters.’’

And this is another quote: ‘‘Significant evidence of intimidation 

and harassment of Blacks at the polls during the 1980’s and 1990’s 

and even as late as the 2000 general elections.’’ And the court also 

found that there was evidence of subtle or overt racial appeals in 

campaigns. And one of the recurring examples of that was that 

White candidates would take out photographs, which they would 

run in the newspaper of their Black opponents, and they would 

darken their features to call attention to their race. 

After that decision was handed down by the district court invalidating that at-large system, the Legislature enacted the identical 

method of elections for the County Board of Education now, despite 

the fact that it had been held to dilute minority strength in violation of section 2. They, of course, had to submit that for 

preclearance to the Department of Justice, and the Department of 

Justice concluded that the proposed change would significantly impair the present ability of minority voters to elect candidates of 

choice to the school board, and they rejected it. 

I would also call to the panel’s attention a decision of a threejudge court that was issued in 2002 which involved statewide redistricting. There was a deadlock between the Governor and the Legislature. They couldn’t enact a plan. There were several lawsuits 

filed asking the court to draw a plan. The Court held a lengthy 

hearing and drew its own plan. And here is one of the things the 

Court found. And the judges who were on that panel were, all 

three, South Carolinians—Judge William Traxler, Judge Matthew 

Perry, and Judge Joe Anderson. And they noted—and this is a 

quote: ‘‘The disturbing fact of racially polarized voting has seen little change in the last decade. Voting in South Carolina continues 

to be racially polarized to a very high degree in all regions of the 

State. And in both primary and general elections statewide, Black 

citizens are a highly politically cohesive group, and Whites engage 

in significant White bloc voting.’’

Let me jump now to Indian country. There are hundreds of examples I could give. The time dictates that I only give one or two. 

As a result of the 1975 amendments of the Voting Rights Act, two 

counties in South Dakota, Todd and Shannon, which are home to 

the Pineridge and Rosebud Indian reservations, a large Sioux Indian population, became covered by section 5. Well, William 

Janklow at that time was the Attorney General of South Dakota. 

And he was outraged over the extension of section 5 to his State. 

In fact, he wrote a formal opinion to the South Dakota Secretary 

of State. He derided the 1975 law as a, ‘‘facial absurdity.’’ He was 

confident that it would be declared unconstitutional by the courts; 

but in the meantime he instructed the Secretary of State not to 

comply with section 5, and the Secretary of State in fact did not. 

There were more than 600 voting changes that were enacted and 

were not precleared under section 5. 

Which, can I just close by saying——

Mr. CHABOT. If you could summarize. 

6

Mr. MCDONALD. —that the other important reason we need section 5 is the deterrent effects. It is applied almost universally by 

the courts when they implement court-ordered plans. And in fact 

we are doing a number of reports. I have written a piece about voting rights in South Dakota which is in the American Indian Law 

Journal. I have also written a chapter for a book about all the litigation in Indian country that I could possibly find. 

And our office, which has done more than 300 lawsuits in the 

South and elsewhere since 1982, and we are preparing a report for 

that I want to share that with the Committee, because these three 

examples I have given you are the proverbial tip of the iceberg. 

Mr. CHABOT. If you would like to, you can refer those to the 

record, the actual documents themselves, and we will accept those 

into the record. Thank you very much Mr. McDonald. 

[The prepared statement of Mr. McDonald follows:]

7

PREPARED STATEMENT OF LAUGHLIN MCDONALD


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Mr. CHABOT. Mr. Hunter you’re recognized for 5 minutes. 

TESTIMONY OF ROBERT HUNTER, VOTING RIGHTS LITIGATOR, HUNTER, HIGGINS, MILES, ELAM AND BENJAMIN, 

P.L.L.C. 

Mr. HUNTER. Thank you. Thank you, Mr. Chairman, Mr. Nadler, 

Members of the Committee, thank you and the Subcommittee for 

inviting me to speak on the topic of reauthorization of section 5 of 

the Voting Rights Act. 

Since 1982 I have been involved in litigation in North Carolina, 

South Carolina, Virginia, and Florida in redistricting and election 

law issues implementing the Voting Rights Act. I believe that my 

comments can be made most useful in the context of the most recent redistricting efforts in the Southeast, particularly in North 

and South Carolina. 

In the 2000 North Carolina redistricting cycle, I served as counsel to the North Carolina Republican Party plaintiffs in challenging 

the State legislative redistricting plan in State court. In the 2000 

cycle in South Carolina, I served as counsel to the Senate Republican defendants in a suit which drafted a court-ordered plan for 

South Carolina elections. 

Now, the purpose of the hearing today is to talk about proof of 

discriminatory purpose or effect. In my view, the proof of discriminatory purpose or effect was easily understood by most voting 

rights practitioners in this field during the 1980’s and 1990’s. However, the meaning of these terms has been modified by thee recent 

Supreme Court decisions: State of Georgia v. Ashcroft; Reno v. Bossier Parish School Board I; and Bossier Parish School Board II. 

As a practical matter, the effect of most of these Supreme Court 

decisions was the elimination of section 2 analysis by the Attorney 

General and to eviscerate the ‘‘intent’’ or ‘‘purpose’’ prong of the 

Beer standard. The majority of the Supreme Court substituted an 

effects test as the sole measure of retrogression. This change has 

been incorporated in the Department of Justice regulations implementing the act, CFR 51.54 ‘‘discriminatory effect.’’

In reauthorizing section 5, it is evident to me that most, if not 

all, of the minority districts which have been drafted in redistricting plans throughout the South, are a result of the preventive 

effects of section 5 and the desire on the part of jurisdictions to 

avoid section 2 litigation. However, it is also clear to me, as shown 

both in North and South Carolina litigations this year, that political elements within the South would seek to retrogress or backslide in their obligations to be racially fair in making redistricting 

decisions in the absence of reauthorization of section 5. 

The strongest example of this is in the Colleton County case, 

which Laughlin mentioned earlier, in South Carolina where the 

Governor vetoed redistricting plans and urged in lieu of effective 

minority district concentrations, weakened or bleached districts 

with minority voting age populations well below 45 percent in 

many areas. His expert witnesses urged these positions on the 

three-judge panel which properly rejected this idea. 

However, the Ashcroft case in Georgia, the case in Virginia, and 

the case in North Carolina offer equally vivid examples of this 

flawed idea. 

17

The focus of the congressional inquiry should be on the community whose voting strength is being given legal protection from purposeful or effective discrimination. 

Where there is a systematic history of racially polarized voting 

and where without legal protection a minority community has not 

historically been able to consistently achieve constitutional parity 

with other racial groups, the group should be able to elect a candidate of its choice. Sharing that choice with non-group members 

is not equal opportunity but lessened opportunity. 

The focus on legislative action after redistricting suffers from 

this same point. It does little good in my opinion to ask questions 

about what legislative power a particular incumbent may get after 

an election because that focus is on an individual incumbent and 

not on the community affected. 

I realize this Committee faces a factual predicate for renewal of 

section 5 that its predecessors didn’t face. I hope that you will examine the list of cases that have been brought successfully under 

section 2 in the South. But equally important is for this Committee 

to catalog those statutes which would spring to life if retrogression 

is not reauthorized. 

In lieu of the Supreme Court approach as indicated in Bossier I

and II, I hope the Committee would consider placing the Garza v. 

County of Los Angeles standard as a desirable purpose approach, 

which I do not believe would involve itself in the issues raised in 

Ashcroft and Bossier I and Bossier II. If that were the legal standard, then I think that we would be able to understand in a clear 

and sufficient way the ‘‘purpose’’ prong that Congress originally intended section 5 to implement. 

I see that my time is over. Thank you very much. 

Mr. CHABOT. Thank you. 

[The prepared statement of Mr. Hunter follows:]

18

PREPARED STATEMENT OF ROBERT HUNTER


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Mr. CHABOT. Mr. Gaddie you’re recognized for 5 minutes. 

TESTIMONY OF RONALD KEITH GADDIE, PROFESSOR OF 

POLITICAL SCIENCE, THE UNIVERSITY OF OKLAHOMA 

Mr. GADDIE. Mr. Chairman, Representative Nadler, and distinguished Committee Members, my thanks for the invitation to appear before this panel. Dramatic changes in American politics have 

been witnessed in 40 years. Minority voter participation has increased substantially. And descriptive representation of racial and 

ethnic minorities has never been so widespread. Southern Blacks 

register and vote at rates as high or higher than Black voters and 

White voters in much of the Nation. There is a two-party system 

in the South which fosters Black political empowerment and office 

holding. However, this empowerment is realized as the party of 

choice for most African-Americans, the Democratic Party, has been 

relegated to minority status in legislatures of five section 5 States 

in the South. 

My colleague, Charles Bullock of the University of Georgia, and 

I are completing a study on the progress of minority voter participation in the jurisdictions covered by section 5 of the Voting Rights 

Act, supported by the American Enterprise Institute. As to our 

analysis, we have now completed initial analysis and are completing the write-up on three States: Georgia, Louisiana and South 

Carolina. 

Georgia shows unprecedented progress in voting rights for African-Americans, significant gains in voter participation, voter turnout, and the election of minority candidates when candidates of 

choice are evident. Black and White Democratic candidates are 

generally not distinguished by Caucasian voters. African-American 

candidates win statewide elections, and the Congressional delegation is actually better than proportional to the Black population as 

of the last Congressional election. 

In South Carolina, significant progress has been made in terms 

of participation and in the election of Black candidates to legislative office. Black candidates have not enjoyed success statewide, 

though this lack of success is more a function of the fall of the 

South Carolina Democratic Party than of the race of the candidate 

per se.

Louisiana exhibits evidence of Black progress and voter participation through registration and voting. Black legislators are elected to the Congress and to the State legislature, though not in proportion to their numbers. Louisiana voting is such that the Black 

candidates running statewide have failed in their efforts. Racial polarization is insufficient to deny the election of Democrats in general who are very successful in statewide elections, but the success 

has not been obtained by African-Americans running statewide in 

the Pelican State. 

How does this bear on section 5? Let me advance some questions 

to ponder. These observations come from an empirical social scientist, not a legal scholar, and therefore should be taken as such. 

One, after two generations of implementation, are the goals of 

the Voting Rights Act achieved? The answer is variable by State. 

But clearly Georgia exhibits progress that makes one wonder why 

the State continues to be covered by section 5. Other States also 

30

show dramatic and sustained progress, though Georgia is the most 

progressed of the original section 5 States. 

Two, has section 5 been twisted or altered by politics into a tool 

with which to advance party causes? Political motives for the implementation of the Voting Rights Act are evident in the record of 

behavior of national and State actors in the implementation of section 5 and in the redistricting process. 

Three, have the efforts to satisfy political goals and also the goals 

of the Voting Rights Act led to problematic or even illegal representative maps? Yes. The political circumstances that collided in 

the early 1990’s led to illegal maps that were as much a product 

of the goals of parties rather than a pursuit of racial fairness in 

the implementation of the 15th amendment. 

Four, has the standard for satisfying retrogression been altered 

by practice in the interpretation of the Supreme Court to possibly 

result in unintended consequences? Again the answer is yes. In the 

recent controversial Texas congressional redistricting, this very 

problem appeared in arguments advanced by both political science 

experts and lawyers, though the argument that derives from this 

problematic interpretation was rejected by the presiding Federal 

judge; namely, the status of coalition districts with regard to retrogression or protection under the Voting Rights Act. 

Five, and finally, do the circumstances of the empirical test advanced by the Court wherein minority candidates do not require 

minority-majority districts to prevail and minority political leaders 

endorse the use of coalition districts to, quote, pull, haul and trade 

in politics also indicate an environment where section 5 coverage 

is not warranted? Possibly yes. If we look at Georgia, where minority voters register and turn out at a rate higher than Whites, 

where Black electoral success is evident at all levels of government, 

where expert testimonies show that a minority candidate can succeed in nonminority districts, we see a State where the need for 

preclearance has diminished or, if not, has passed. Thank you. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Gaddie follows:]

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PREPARED STATEMENT OF RONALD KEITH GADDIE


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Mr. CHABOT. Mr. Engstrom, you are our final witness and you’re 

recognized for 5 minutes. 

TESTIMONY OF RICHARD ENGSTROM, PROFESSOR, THE 

UNIVERSITY OF NEW ORLEANS 

Mr. ENGSTROM. Thank you. I also appreciate very much, Mr. 

Chairman and Members of the distinguished Committee, this opportunity to appear before you today and discuss a future of the 

preclearance requirement of section 5 of the Voting Rights Act. 

I have some prepared remarks. I am going to give a quick summary. But what I would like to point out right away is we have 

heard a lot of statistics already, the statistics about the increase in 

the African-American vote in the American South, and it can apply 

to other protected minorities elsewhere, and the subsequent increase in descriptive representation. One thing I want to point out 

right away, however, it is not a simple relationship. You increase 

minority votes, you increase minority representation, because those 

minority votes have to be channeled through an election system, 

and the increase in representation didn’t—did lag behind the increase in minority votes largely because it took time for a number 

of majority-minority districts to be created. 

And the reason we have the descriptive representation is not just 

because of the increased Black vote, but also the increased number 

of majority-minority or near majority-minority districts that have 

been created to allow that vote to be converted into descriptive representation. 

But what I want to point out is those districts are crucial all 

right, and the reason those districts are crucial is because racially 

polarized voting continues to persist in the American South and 

certainly no doubt in other jurisdictions across the country. 

The Voting Rights Act was—the reason why the Voting Rights 

Act was renewed, or at least one reason it was renewed in 1970, 

1975, and again in 1982, was because racially polarized voting continued to exist. And unfortunately we are—23 years later, racially 

polarized voting continues to exist in the American South as well 

today. 

I am going to testify about some of my work as a consultant, or 

my testimony will be informed by my work as a consultant in redistricting process for State legislators, for individual members working for political parties, whatever, and alsoas an expert witness. 

That work has covered both major political parties. That work has 

also covered—and plaintiffs and defendants in voting rights litigation. 

One thing I want to do is to document, at least in one State as 

an example, and only as an example, the existence of racially polarized voting today. The State is going to be the State of Louisiana, 

my home State. I didn’t choose Louisiana because it is my home 

State, and I didn’t choose Louisiana because it is in any way 

unique in terms of the existence of racially polarized voting. But 

what I want to do is look at data. I chose Louisiana because there 

is an extensive amount of data concerning a large number of elections, over a large number of different offices, that have been analyzed for the purpose of determining the extent to which racially 

polarized voting was present in those elections. 

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That work is my own work. It was done as an expert witness in 

the case called Louisiana House of Representatives v. Ashcroft, a 

section 5 case. This case did not go to trial. The State did—it was 

settled when changes were made in the map that were favorable 

to minorities in Louisiana. But I want to use this as a demonstration. 

In the tables that are part of my written testimony you will see 

lots of numbers. And basically, let me say quickly because of time, 

I have used three different procedures, all three commonly used in 

the social sciences. I have used all the procedures I know to study 

past elections and look at the extent to which race—racial divisions 

may be present. 

These are 90 elections. They are all biracial elections. These are 

all elections in which there is at least a Black candidate and a 

White candidate or at least a non-Black candidate competing. 

Those types of elections are generally considered the most probative. 

I can see my time is lapsing so let me go right to the results. And 

these results I can summarize, and the summary is on page 9 of 

my report, but out of these 90 elections, 78, that is 86.7 percent, 

showed racial divisions in candidate preferences, and normally to 

quite high levels, all right, not just some preference, but extraordinarily strong preferences of one group favoring candidates different from the other. 

So that is 86.7 percent. The time frame for this study was 1991 

to 2002, the entire time in which we were existing under the previous map in Louisiana. And time frame made no difference under 

the extent to which there was racially polarized voting. The office 

made no difference. It didn’t matter if we are talking about State 

Rep, State Senator, Governor, Mayor, Register of Conveyances, Recorder of Mortgages, or Traffic Court Judge. Racially polarized voting was there across basically all the offices that were contested. 

So this is designed to give you an idea of how intense and persistent and prevalent racially polarized voting may be in the South. 

I want to wrap up quickly by saying, again, Louisiana is not 

unique. I can point to some court cases, post 2000 representational 

districting cases. South Carolina has been mentioned by the court, 

and South Carolina Federal courts said voting in South Carolina 

continues to be racially polarized to a very high degree. Courts in 

Texas found racially polarized voting throughout the State between 

Latinos and non-Latinos. In the Florida case they found a substantial degree of racially polarized voting in South Florida and Northeast Florida. And even the Georgia case, the case that you’ve heard 

referenced several times already, please let me note that in Georgia 

the Federal district court did find that in the three State Senate 

districts at issue in the preclearance litigation, there was, quote, 

highly racially polarized voting in the proposed districts. And that 

was a conclusion that was not disturbed by the U.S. Supreme 

Court when it reviewed the case. The Court said the district court 

needed to expand its inquiry, but in no way touched its findings on 

racially polarized voting. 

Mr. CHABOT. Thank you very much. 

[The prepared statement of Mr. Engstrom follows:]

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PREPARED STATEMENT OF RICHARD L. ENGSTROM


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Mr. CHABOT. The Members of the Committee will now have 5 

minutes to ask questions, and I yield myself 5 minutes for that 

purpose. And this question I would address to each of the panel 

members, and we will begin with you, Mr. McDonald. 

How effective is the current retrogression standard to protect and 

prevent against minority backsliding? 

Mr. MCDONALD. Well, there is no question that there is some deterrent effect. The State of Georgia, for example, just this year redistricted its congressional delegation. And before it did so, it 

adopted a resolution saying that it must comply with section 5. 

And the plan that it ultimately adopted didn’t change the Black 

voting age population in the two districts that were majority Black 

and in the two that were majority—barely majority White. They 

did not affect or reduce at all the Black voting age population, so 

we know there is a deterrent effect. 

The City of Albany, Georgia, after the 2000 census enacted a redistricting plan for the city. And it was submitted for preclearance. 

The Department of Justice objected on the grounds that there was 

evidence that it was animated by purposeful discrimination to limit 

the opportunities of minorities. So it continues to have an actual 

impact and a deterrent effect. But I think it is also the case that 

section 5 has been weakened by a couple of recent Supreme Court 

decisions, what is called Bossier II, which involves an objection on 

the purpose grounds can only be made if something has a retrogressive purpose. 

I just remember in 1982 the State of Georgia enacted a plan with 

a discriminatory purpose, but it was not retrogressive because they 

actually increased the Black population in district 5. Julian Bond 

was in the Senate and submitted a plan creating like a 69 percent 

Black district. It got to the House. Joe McWilson—I hate to speak 

in the language that he uses—but the N word was part of his every 

day vocabulary. He told his colleagues on the House side, quote, ‘‘I 

am not going to draw any nigger districts,’’ end quote. 

So the plan that they ended up with was not retrogressive if it 

didn’t make Blacks worse off because it slightly increased the Black 

population based on the benchmark plan; but if Bossier II had been 

in effect, arguably that would not have been objectionable because 

the purpose was not to make Blacks worse off. It was actually—

their percent in the Fifth District was actually increased. I think 

that’s an absurd result. And I really think that the Congress ought 

to take very seriously the problems of Bossier II.

Mr. CHABOT. Thank you. Mr. Hunter. 

Mr. HUNTER. I would like to say I agree with Laughlin about the 

effects of the most recent Supreme Court decisions. I know that if 

I were to compare the 1990 review of, say, the North Carolina or 

South Carolina or Florida section 5 preclearance review that was—

given the legislative plans at that time—with the review that the 

Justice Department gave the similar plans in 2000, the review was 

far more rigorous and vigorous in the 1990’s than it is today. 

I think that is a direct result of these three cases and the challenge is on largely federalism grounds I think, to the implementation of section 5. And I think it is important to remember that the 

14th and 15th amendments, which are the enforcement powers, 

and the Republican form of government section of the Constitution, 

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are really antifederalism-type implementations. There are amendments to federalism to allow national power to work its will. 

So I certainly agree that where you have an agreement among 

incumbents to keep emerging minority districts or to prevent new 

districts from being drawn, then I think you have a problem of intentional discrimination without a retrogressive effect, not just, as 

Judge Scalia says, an incompetent retrogressor. 

Mr. CHABOT. Thank you. My time is running out. Mr. Gaddie. 

Mr. GADDIE. Mr. Chairman, I would agree with my colleagues 

that the most recent decisions have altered or potentially altered 

the effectiveness of section 5 and section 5 has been critical to advancing minority representation. I also agree with my colleague, 

Dr. Engstrom, that without those new minority-majority districts 

enacted in the 1990’s, you would not have seen those initial advancements in minority representation. 

That being said, to the current state of section 5 as a social scientist, I have three concerns with regard to its current status. 

One is how do we describe retrogression. If we consider coalition 

districts in the process of assessing retrogression or non-retrogression, 10 years from now we will have to ask the question, how do 

we count those coalition districts in creating the new baseline? 

These are not minority-majority districts, but coalition districts 

that might be counted toward establishing non-retrogression. How 

do we treat them down the road? 

This leads to the question of how do we describe representation. 

Is it sufficient to have access to the process to coalesce, to elect a 

member from a party? Or is what matters the election of the candidate of choice from the community from which those votes are 

coming? Where does the obligation to pull, haul, and trade get balanced against the guarantees of access and descriptive representation in the process? 

For social scientists, we have a tough challenge which is, how do 

we weigh a coalition district? If we were to apply the Ashcroft

standard in 1991, we might not have created the new majority-minority districts that we did. So this standard has changed the 

measure of retrogression and the ability to assess it. 

Mr. CHABOT. Thank you. My time has expired, but if you could 

answer briefly Mr. Engstrom. 

Mr. ENGSTROM. I think the only thing I would add is to stress 

the deterrent effect. I think the act has been effective. What the 

Georgia v. Ashcroft situation will be is yet to be played out. But I 

think when we look at how effective it has been, it has been effective. I don’t think we can just count objections from the Justice Department. I do think we have to take into account the deterrent effect of the preclearance provision. 

And I can say as a consultant who has had a role in drawing 

maps and the process, that the section 5 looms seriously over political cartographers and decision makers when it comes to plans. 

And I can testify that I have seen districts changed in order to 

avoid retrogression and gain preclearance. Districts that had already been agreed upon in effect from the political end were 

changed in order to satisfy the law. 

Mr. CHABOT. If you could provide those to the Committee, we 

would like to have that; any information, papers, reports, graphs, 

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anything you might have. If you can provide those, not necessarily 

right now, but—— Mr. ENGSTROM. The consulting work often is, I don’t know that 

I am privileged—I can say the results I cannot—— Mr. CHABOT. To the extent that you’re able to provide it, we 

would appreciate it. If you can’t, we understand. 

Mr. CHABOT. Thank you very much. My time has expired. 

The gentleman from New York, Mr. Nadler, has 5 minutes. 

Mr. NADLER. Thank you, Mr. Chairman. At this time, with your 

permission, I would like to defer my questions and yield—not yield, 

but ask that the distinguished Ranking Member of the full Committee Mr. Conyers, has questions now. 

Mr. CHABOT. Absolutely. We will take your time back. 

Mr. NADLER. I take my time back. 

Mr. CHABOT. We will give Mr. Conyers your 5 minutes at this 

time. 

Mr. CONYERS. Thank you, Mr. Chairman, and thank you, Mr. 

Nadler. We really need a lot more than 5 minutes each, don’t we? 

We have got so many things floating around in this panel and 

we have suddenly, after a lot of wonderful rhetoric in some other 

panels, we are down to some very serious questions. Namely, does 

Georgia v. Ashcroft need remedying in this new renewal and section 5 continuation? I hope everyone agrees with me that Bossier

certainly does, and everyone here seems to support the reauthorization. But the question around section 5 is that should influence 

districts not be counted or not? Should they be counted or not? And 

that is where we get into some very difficult issues. 

Do not be dismayed by the fact that times are changing and that 

the issues and the way we remedy them are changed, too. 

Should African-American influence be allowed to, as it were, unpack some of these districts where we used to need from 65 to 80 

percent to elect an African-American, when now frequently considerably less is necessary. 

So this is where we come into this traditional issue. And I would 

like Mr. McDonald and Mr. Engstrom to quickly put your oar into 

those sets of issues that are floating around on the top. And then 

I would very much, very much like to hear from Mr. Hunter, Attorney Hunter, and Mr. Gaddie. 

Mr. MCDONALD. Mr. Conyers, I think that you don’t go astray if 

you keep your eye on the basic right that the Voting Rights Act 

protects, and that is the equal right of covered minorities to participate in the political process and elect candidates of their choice. 

And I don’t think that it serves the ultimate purpose of the Voting 

Rights Act to say that that standard is met if you can simply influence the election of candidates. 

I think one of the great ironies of the influence theory is that the 

whole Shaw-Miller cases were brought by White voters who were 

placed in White-influence districts. They were the minority White 

district, but they were 45, 46 percent of the population, and they 

could influence the election of candidates. And yet those White voters convinced the U.S. Supreme Court that putting them in Whiteinfluenced districts violated the 14th amendment. But yet people 

say, oh, it is okay for Black voters to be in Black-influence districts. 

Again, I keep my eye on what the fundamental right is. 

83

Nobody supports packing, believe me. And people constantly talk 

about the Georgia v. Ashcroft decision and I think give the mistaken impression that the three Senate districts at issue, they were 

majority White districts, and that somehow the Black Caucus supported those districts. That is not factually correct. They were three 

majority Black districts, and I have talked to—if I can resort to 

hearsay—but I have talked to Tyrone Brooks who is the Chair of 

the Georgia Association of Black Elected Officials, and others, and 

they said they would never have supported a plan that abolished 

the majority Black districts. These were still majority Black districts, but they thought that nonetheless that Black voters still had 

the chance to elect candidates of choice. 

Mr. CONYERS. Mr. Engstrom. 

Mr. ENGSTROM. Let me say just quickly at the beginning, as I 

said earlier, we have to see what Georgia v. Ashcroft—how it plays 

out. We don’t have a single court case that applies that. The Georgia case, when it went back on remand, Georgia changed the districts that were at issue. They didn’t make a coalition or an influenced district argument. They got precleared simply in a previous 

way by increasing the African-American percentage in those three 

districts, and the Justices said we are satisfied. 

As to influenced districts, a couple quick things. One, I am disturbed by the fact, and I think Laughlin has pointed out, that it 

is a racially selective concept. This was clear vividly in Hayes v. 

Louisiana, one of the 1990 cases. But the Court in effect said any 

district with over 25, 30, percent basically Black voting-age population was a Black-influenced district. But yet the two Representatives that had districts that were about 55 percent were basically 

considered—these would be racial partisans. It is like it is a racially selective application that goes into one direction. 

I also think the concept—and this is true in Georgia v. Ashcroft—

is incredibly simplistic at this point in time. It just says in Georgia 

v. Ashcroft sometimes it is 20 percent, sometimes it is 25 percent, 

sometimes it is 30 percent. But in effect, the Court used those 

numbers and there was nothing to back them up. It is not just how 

many minorities; also, what are the other voters in that district 

like? Are they going to be available there for coalition politics or 

what? 

I can note one of the disturbing things in the Georgia case when 

the case was on remand. The State of Georgia identified 17 districts that were influenced districts, quote unquote, based on what 

they said was the O’Connor standard. But it was 25 percent Black 

voting-age population. 

After that election, when the legislature met, 7—over 40 percent 

of those districts—7 of the 17 were represented by White Republicans. Now, three of those districts, influenced districts, actually 

resulted in the election of Republicans. Four more resulted in the 

election of White Democrats who subsequently changed party. 

That is how influenced the minority was in their district, to become Republicans and allow the Republican Party to organize the 

Chamber and control it. 

Two of those—two of those districts were walkovers, no contest, 

at least in the general election. Two others were districts in which 

the White Democrat got over 90 percent of the African-American 

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vote and less than a majority of the White vote, or the non-AfricanAmerican vote. Yet despite in effect Blacks being pivotal to their 

election, they switched parties by the time the legislature was in 

session. 

I don’t think—we don’t have a good handle on an influence district. We certainly can’t go forward and say it is just some specific 

percentage of Blacks present in a district. We have to be far more 

serious about this concept than we have been to this point in time. 

Mr. CHABOT. The gentleman’s time has expired. The gentleman 

from Florida, Mr. Feeney, is recognized for 5 minutes. 

Mr. FEENEY. I will, if I can back up on that, because I really 

think this is the gist of the question that is before the panel here 

today. We went from earlier this morning where Mr. Blum told us 

at first that there was no more Jim Crow-era segregationist intent 

anywhere in Georgia, and modified that to say no elected official 

with control over any process had that intent, which I still find remarkable. And we still have a huge difference between Mr. Gaddie 

and Mr. Blum on the one hand, the first witnesses to tell us, because we have got increased minority registration, participation, 

and election of candidates, that section 5 may no longer be necessary anywhere in the country, versus all the other testimony we 

have, both factual and anecdotal, which tends to go very much 

averse to that and just say that the techniques for purpose or effects that discriminate against participation to elect candidates of 

your choice have just become different, whether it is at-large voting, whether it is annexation, whether it is redistricting or other 

subtle techniques. 

But the problem we have with the Georgia v. Ashcroft case seems 

to be a real defining one for this Committee. 

The problem with—you know, Bull Connor may be dead, but 

O’Connor is very much alive, and the standard is unenforceable because it is unintelligible. I think that what an influenced district 

is a very interesting question, and it will change from candidate to 

candidate and cycle to cycle and geographic area to geographic 

area. And even Mr. Gaddie I think agreed with that. 

For example, arguably African-Americans in the State of Alabama in the 1960’s could influence the outcome of the race between 

George Wallace and Big Jim Folsom on the theory that influence 

means getting the candidate that is the lesser of two evils may be 

an important choice for African-Americans at the time. But I hope 

we aspire to better than that. And I know that if we are not going 

to allow retrogression, we expect better than that, as we define 

what these issues mean. 

And I think even the specifics of the Georgia v. Ashcroft case are 

very telling, because let’s face it, there are minority voters in my 

community that will be very attractive in drawing White votes, 

even a majority of White votes. Maybe the instances we look at, 

some of the success candidates have had in Georgia or other areas 

anecdotally, there will be other minorities that are very highly acceptable and desirable in the minority community that may not be 

able to attract significant support from the White community. So 

I am interested, if we are not going to change the standards laid 

out by a narrow majority in Ashcroft, how do we define what influVerDate 0ct 09 2002 12:24 Mar 07, 2006 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6601 G:\WORK\CONST\102505B\24121.000 HJUD2 PsN: 24121
85

ence means and isn’t that a standard that evolves day to day, candidate to candidate, and geography to geography? 

Mr. Hunter, I will let you start and then ask the other panelists 

if they have an opinion as to how this standard, whether it is even 

enforceable, but I will leave with you this. You outlined the dramatic effects in terms of the number of minorities that are elected 

to office in North Carolina. In Florida for 110 years, we had no African-Americans, and only one Cuban-American ever represented 

the people of Florida in Congress. And I can say that for the most 

part, Floridians are grateful for the change, although they don’t 

like some of the specific Congresspersons from our State. 

But Mr. Hunter, do you think the standard in Ashcroft can ever 

be intelligible, let alone enforceable? 

Mr. HUNTER. I tried a case about the election of North Carolina 

judges, Superior Court judges, statewide called Martin v. Republican Party. It took 12 years to litigate an intentional discrimination against Republican voters in the State in the election of Superior Court judges. It was incredibly difficult. We finally won. It’s 

the only political gerrymandering case that’s ever been successful. 

It took us 12 years to prove it, and it has to do with this whole 

idea of influence. 

You know, influence is something that you get—I think when 

people confuse it they are talking about influencing in the election 

or influence subsequently when people get into a body or a chamber, and I think that’s what Justice O’Connor proves. Proving legislative intent or influence is one of the most amorphous things you 

can possible prove. Is one legislator more influential than another? 

Is a coalition of Blacks and Whites more influential? Influenced to 

do what? 

I think it’s a very difficult standard. It’s not objective. It’s not 

easily understood. It allows the Department of Justice or the threejudge panel in the District of Columbia to come up with differing 

results. Practitioners aren’t going to understand it at all. I just 

think it’s just such an amorphous concept. 

The second thing I want to say—and I’ll just use Congressman 

Watt’s district as an example because I’m from North Carolina and 

I happen to know it—I’ve never met an incumbent legislator who 

wanted an influence district. If I were to go to Congressman Watt 

and say, as minority legislators are wont to do—they’re the ones 

being asked to have an influence district. If I were to go to Congressman Watt and say, good news, Congressman, your district has 

been selected to go from a majority Black district to an influence 

district, and we’re only going to give you 40 percent of your core 

district and give you 60 percent or whatever percentage, and I’ve 

got a political scientist here who’s real smart and he’s going to tell 

you you can theoretically win in that and it will help your party 

later on, I don’t think I’m going to be Mr. Watt’s lawyer for very 

long. 

I just don’t think—incumbents don’t want that. They want certainty. They want surety. Because their influence is what’s important to them in the body after the next redistricting and after the 

election. So influence districts don’t mean anything, is a theoretical 

matter to incumbents, and influence districts in the community at 

large are just so ephemeral, I don’t know what it means. 

86

Mr. CHABOT. I believe the gentleman asked Mr. Gaddie also to 

respond as well. The gentleman’s time has expired. 

Mr. FEENEY. With the indulgence of the Committee, maybe Mr. 

Engstrom has something to say as well. 

Mr. CHABOT. As well as Mr. Gaddie, you mean. 

Mr. ENGSTROM. I share the concern that, as I said earlier, we do 

not at this point have a handle on the concept of influence district. 

We don’t really know what it is. We don’t know how to measure 

it; and whether we’re going to be able to measure it, say, by the 

2010 round of redistricting is an open question. I’m not really persuaded that we’re that close or whether we ever will be. 

There’s another dimension to Georgia v. Ashcroft that I want to 

note. Just as influence district can be quite subjective—and I’ll add 

another example. I don’t mean to name a Member of Congress, but 

there’s supposedly a Latino influence district in Texas. It’s a district that elects a Latino Republican. The Latino Republican has 

never been supported by Latino voters in his district, never, and 

what the State did was simply go out, eliminate Latinos from his 

district, because that was starting to put him at risk, and go out 

and get more Anglo Republicans to replace Latino Democrats. 

The court in Texas called that a Latino influence district. Well, 

if that’s a Latino influence district, I think we can just ignore the 

concept completely. That is not a district in which the representative is likely to feel electorally accountable in a very serious way 

to the Latino voters. 

Let me add one other thing that disturbs me about Georgia v. 

Ashcroft—and I’m not a lawyer. Let me preface that. But, as I read 

it, I understand Justice O’Connor said the ultimate test or the ultimate standard was going to be the totality of the circumstances. 

Well, if we think influence district is an amorphous and vague concept, difficult to measure, what in the world are the totality of circumstances? Totality of circumstances is a test that leaves judicial 

discretion a mile wide, just like influence district, just like that 

concept does as well. 

So, again, lawyers may be able to tell you better how these 

standards will play out, but I am definitely pessimistic about the 

concept of influence district and being able to objectively measure 

that concept and work it into some kind of calculation or some kind 

of relationship that tells us whether these are valuable, beneficial 

trade-offs to actual opportunities to elect and hold electoral or hold 

representatives accountable. 

Mr. CHABOT. Mr. Gaddie, did you want to respond very briefly? 

Mr. GADDIE. I get a sense Dick may have cribbed some of my 

notes here, so I will be brief. 

It is difficult to measure this thing, and this is the principal challenge that comes out of Ashcroft. Indeed it’s difficult to measure 

performance in any instance because measuring a performing district varies by constituency. 

Professor Abstein in his testimony in Ashcroft noted that an African-American candidate had a fair chance of winning a district at 

44.7 percent African-American VAP. He had a similar analysis in 

South Carolina that indicated a number of 47 percent AfricanAmerican BAP. As I look at Representative Scott’s district that he 

87

was initially elected from in 2002, this was a district that approached but did not meet this threshold. 

African-American candidates can win districts where there is not 

a majority of African-American voters. That being said, we will 

have to ascertain the threshold for every jurisdiction. We will have 

to use methods that have predictive error around them to try an 

ascertain the ability to perform. 

But there’s a larger issue here, a representation issue. Our colleague, Carol Swain at Vanderbilt, has noted that Black representatives can respond to White constituencies, White representatives 

can respond to Black constituencies, but getting a proportional representation, are we supposed to do like the odds of a lottery and 

look at the proportion or contribution to the majority and ascertain 

if that proportion of the representation is being derived from the 

minority community? This may be one way to do it, but I’m not 

sure how we’d measure it. So we’ve been left with a vast uncertainty here, but let’s forget about—let’s remember part of the totality of circumstances. 

In Ashcroft, Justice O’Connor took note of the support of AfricanAmerican legislators in the Georgia legislature for this map that 

pulled down African-American percentages in districts, that the 

consent of the representatives of that community was important to 

establishing the totality of circumstances. 

Now if we have African-American representation being part of a 

majority that agrees that you can pull down percentages in terms 

of threshold and enter into coalition, we are back to the question 

I brought up earlier, how critical is section 5 to a State where African-American politicians feel confident in pulling down their percentages in their districts and where they have such power in the 

legislature to provide critical votes to the creation of redistricting 

maps? 

Mr. CHABOT. The gentleman’s time is expired. 

The gentleman from New York, Mr. Nadler, is recognized for 5 

minutes. 

Mr. NADLER. Mr. McDonald, do you want to answer that rhetorical question? 

Mr. MCDONALD. I would say two things. The first is that the 

three-judge court in the South Carolina case rejected the argument 

that 47 percent would comply with the non-retrogression standard 

of section 5. That testimony was rejected, and the court made a 

specific finding that in order to provide Black voters an equal opportunity to elect candidates of choice you had to have a majority 

of Black voting-age population or near majority. 

Mr. NADLER. Was that finding or that ruling in that decision for 

the circumstances of that case or of general applicability? 

Mr. MCDONALD. For the circumstances of that case. 

Let me say one thing. The mere fact that legislators vote for 

something, whatever the compromises are, is not—cannot be dispositive. I would remind us all that during the reconstruction years 

Blacks who were members of Congressional or Constitutional Conventions and who served in the legislature voted for racially segregated schools. There were examples of voting for poll taxes. In 

Georgia, they voted to abolish locally elected government, plainly 

a racially motivated attempt to deprive Blacks. 

88

I mean, I don’t think that insulates racially segregated schools 

and the poll tax from an independent review. There are a lot of decisions that are made politically, but the bottom line is that the 

Members of the Black Caucus would never have supported a redistricting plan that abolished the majority Black districts. 

Mr. NADLER. Thank you. 

Mr. Engstrom, we’ve been having a lot of discussion about crossover voting by White voters. Have you determined the effect of incumbency on racial Black voting behavior? I suspect it’s obvious 

that crossover voting is more prevalent for incumbents than firsttime candidates. You can look at initial elections of a number of 

candidates. I won’t name them. I also suspect there’s greater crossover at the Federal electoral level. What does crossover look like 

as elections get more local? Can you talk about that? 

Mr. ENGSTROM. Well, let me say, in terms of incumbency, what 

I have often seen is that the incumbency advantage is itself racially 

specific. I have seen much racially polarized voting in many elections in which there was an incumbent and in which there was racially polarized voting; and in many of those elections what happens is, if it’s a White incumbent, Whites or non-African-Americans 

support that incumbent and often minorities do not. Likewise, if 

it’s a minority incumbent, they are supported by the minority voters; and White or Anglo or non-minority voters don’t share that 

preference. So incumbency doesn’t explain as much as a lot of people think. 

Now at the local level what I have found is at the local level you 

get—well, a lot of elections are high salients in which candidates’

race and things are well-known by people, but in local elections 

there are some in which they’re well-known and others in which 

they may not be as well-known. But still you have local candidates, 

and I think observations or understandings of the racial composition of a candidate pool are stronger at the local level. 

Now I did do research in Georgia v. Ashcroft which has been 

cited. I mean, it’s part of my testimony. It’s been cited by some to 

say that Georgia has changed a great deal, and what I found was 

a very distinct difference in crossover voting when it came to Statewide elections as opposed to local elections. 

Mr. NADLER. More crossover voting in the State? 

Mr. ENGSTROM. At the local level. When candidates ran Statewide—and keep in mind these may not be candidates from the local 

area. In most instances, they’re not going to be candidates from the 

local area. There was a pronounced difference in Statewide elections in Georgia. Statewide elections were still racially polarized 

but not to the degree that the local elections I studied were. 

Mr. NADLER. The local elections are more racially polarized? 

Mr. ENGSTROM. The local ones were more than the Statewide. In 

the districts I studied. 

Mr. NADLER. Do you have any idea what the explanation for that 

might be? 

Mr. ENGSTROM. I have not studied Georgia politics in the sense 

that I was asked that in court and I did not have really an answer 

for why. I’ve not revisited the issue except to acknowledge that that 

difference was present. 

89

There’s some difference I suspect in visibility, in campaign strategy, endorsement. 

Mr. NADLER. Thank you. 

I have one more question. Mr. Blum in the earlier panel took the 

position that certain racial data from recent Georgia elections supports the case for letting section 5 lapse. Is his methodology for 

concluding that there’s White crossover voting in Georgia correct 

and does that hold any significance for other States in your opinion? 

Mr. ENGSTROM. He was referencing a study I’m not familiar 

with. 

But one concern when you read a study like that and concern I 

will have is to see what kind of elections are being analyzed. Because one of the big distinctions is what role do White-on-White 

elections play. It’s come up a little earlier today. Some people want 

to look at racially polarized voting on White-on-White elections and 

what they find is often minorities can get on the winning side on 

a White-on-White election. It doesn’t mean they’re electing a representative of your choice. 

And I would qualify something that Laughlin said earlier. The 

purpose of the act is not to elect candidates of your choice, it’s to 

elect representatives of your choice. And some arrangements—— Mr. NADLER. What’s the difference between representative of 

your choice and candidate of your choice? 

Mr. ENGSTROM. Quite significant, I think. The representative of 

choice may not be in the candidate pool because of the racial composition of the district. One reason we say Black on White, minority versus non-minority elections are more probative is because if 

they show a consistent preference for being represented by people 

from within your own group, then the opportunity to elect, if it’s 

going to be close to equal, has to include the opportunity to elect 

from within your own group. 

Mr. CHABOT. The gentleman’s time has expired. Did you want to 

finish up? 

Mr. ENGSTROM. I was just going to—I forgot my thoughts. I’m 

sorry. 

Mr. NADLER. You were saying that you were making a distinction 

of the representative versus candidate and you were saying obviously—I think what you were saying is that a candidate of your 

choice is not really a candidate of your choice if you didn’t have a 

choice because the representative is not running. 

Mr. ENGSTROM. Section 2 of the act, for example, says representative of your choice. Equal opportunity to elect representatives of 

choice. You’re stuck with candidates. But the way electoral competition is structured can certainly affect the pool of candidates, 

and it can filter out who may be the representative of choice. 

What I think I was saying is study after study after study of biracial elections show that Blacks do indeed prefer to be represented 

by people from within their own group. That’s a preference not 

shared by non-African-American voters. 

Mr. CHABOT. The gentleman’s time has expired. 

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes. 

Mr. SCOTT. Thank you, Mr. Chairman. 

90

I want to get back to some of that, but let me ask a couple of 

quick questions first. 

At the previous hearing we heard evidence that in some areas 

the rate of voting, rate of registration was equal between Blacks 

and Whites in some areas and, therefore, the Voting Rights Act 

had done its duty and was no longer needed. We’re talking about 

minority voters. Isn’t it true that minority voters are still vulnerable to schemes, whether they’re voting at the same level as everybody else or not? Mr. McDonald? 

Mr. MCDONALD. The dramatic example of that, Mr. Scott, is 

what the State of Georgia did this year in 2005. It passed the most 

draconian photo-ID requirement for in-person voting of any State 

in the Union. I think maybe Indiana has a similar one. 

Mr. SCOTT. So that the rate of voting does not immunize you 

from schemes to diminish the effects of the votes that could be cast. 

And redistricting would be the same thing. You take the same 

number of votes, just divide them up. 

Mr. MCDONALD. Absolutely. 

Can I add one thing? I think this is an excellent gloss on what 

the State of Georgia did. Judge Murphy, the Federal District Court 

judge in Rome, Georgia, last week issued a preliminary injunction 

enjoining use of Georgia’s photo ID requirement because you have got to pay $20 to get one and he said this was in the nature of a 

poll tax. 

So when people talk about new and subtle schemes to 

disfranchise, we’re going back to history and getting one of the 

most discriminatory devices for excluding poor and Blacks and 

making that part of the modern-day scheme. 

Mr. SCOTT. One of the things we have to consider is whether 

we’re going to reauthorize section 5. If we didn’t have section 5 and 

one of these groups came up with a plan that is clearly retrogressive, isn’t it true that the burden of proof would be, without section 

5, would be on the victims of the discrimination? 

Mr. MCDONALD. Yes, sir. 

Mr. SCOTT. If we didn’t have section 5, the burden of expert witnesses and proving the case and the costs of litigation would be on 

the victims. 

Mr. MCDONALD. Yes. 

Mr. SCOTT. And wouldn’t it be true that the benefits of the 

scheme would be enjoyed by the perpetrators of the scheme until 

such time as the victims could get themselves together, get into 

court and win a case? 

Mr. MCDONALD. Yes. 

Mr. SCOTT. Okay. If you have a case that something is being presented—and we’ve kind of talked about this a little bit—there’s a 

clear section 2 violation, should it be precleared if it is not technically retrogressive? If they’re no worse of off than before but you 

have a plan that is clearly retrogressive—not retrogressive but a 

clear violation of section 2, should the Attorney General preclear 

such a plan? 

Mr. MCDONALD. My personal view is no. 

Mr. SCOTT. Anybody think that the Attorney General, if there is 

a clear, by any objective standard, violation of section 2, should it 

be precleared under section 5? Anybody believe it? 

91

Mr. HUNTER. I would like to mention one thing. The Supreme 

Court has taken section 2 analysis out of section 5 preclearance 

material. But then in Bossier I—but then in the Ashcroft case they 

seem to put it back in and say we’re supposed to do a totality of 

the circumstances—— Mr. SCOTT. But the benchmark is totality of the circumstances. 

You are no worse off than you were before. 

Mr. HUNTER. Yes. That’s why it’s confusing. 

Mr. SCOTT. It’s a retrogression standard. 

Mr. HUNTER. Yes, sir. That’s under the second case. 

The problem is, I don’t know what intent to retrogress means. I 

know what discriminatory intent is, but intent to retrogress doesn’t 

have a lot of meaning. 

Mr. SCOTT. Some of these are going to be hard. Redistricting is 

hard. Anybody who thinks you can redistrict in the abstract is a 

fool. Some areas you need—a candidate may need 40 or 50 percent 

African-American to win. Sometimes 60, 70 percent isn’t enough. 

You have got to redistrict where you are, and there are different 

variables different places. 

My time is running short. Let me just ask a general question. In 

looking at the totality of the circumstances, if you have an AfricanAmerican district where you have a reasonable shot at electing a 

candidate of choice and right beside that in that area where you 

can elect with a coalition a supportive candidate, is that—can you 

eliminate that influence district? I mean, should you be able—

shouldn’t you be able to count the influence district? Because there 

is a difference between an African-American sitting here by himself 

and an influence district, compared to sitting there without an influence district. In other words, can you gratuitously carve up that 

influence district and not be retrogressive? Assuming that you can 

have a reasonable coalition, a functioning coalition which will be 

different some places than others. 

Mr. GADDIE. Representative Scott, this is really the great question mark. 

In Texas—and Professor Engstrom may recall this as well— Judge Higgenbotham had this issue put on him with regard to 

maintaining the integrity of Representative Frost’s district, whether Representative Frost was a candidate of choice for the AfricanAmerican community, his district which had no particular majority 

but was a majority of minorities. The Federal court said, no, this 

district is not protected from retrogression. But that’s not also our 

issue. Because there’s no obligation to create a coalition district. 

Likewise, there is no obligation to retain that one. If that district 

is a district where minority voters control the primary, where minority voters are able to coalesce with a minority of White voters 

and they’re electing the representative of choice of their community, we have some very significant gray area to deal with. Our 

hope is you can give us guidance under the law, but we can’t give 

you data to clarify that. 

Mr. SCOTT. Well, if in Georgia v. Ashcroft they diluted some districts in order to create influence districts, without counting influence districts, you couldn’t do that because that would clearly just 

in those three districts be retrogression. 

Mr. CHABOT. The gentleman’s time has expired. 

92

Mr. SCOTT. If I can just continue this. 

Mr. CHABOT. Would you like an additional minute? 

The gentleman has an additional minute. 

Mr. SCOTT. You could not. Although there were still districts 

where the minority community can elect a candidate of its choice, 

the percentage of those districts was lower, and if those are the 

only three districts you’re looking at, that would clearly be retrogression. But looking at the plan as a whole, because you considered the influence districts next door, the totality of the circumstances, whatever that means, met—concluded that the minority community was better off with the total map—excuse me, 

wasn’t any worse off—since it’s section 5, wasn’t any worse off 

under the new map than it was under the old map even though in 

those individual districts there may have been retrogression. 

Now if you don’t have that analysis, how would you not be stuck 

with overpacked districts and can never get out from under overpacked districts? 

Mr. ENGSTROM. I don’t think the retrogression requirement says 

that you can’t lower the percentages in a district. It depends on the 

context. 

Now the districts—the State Senate districts in Georgia were districts that were roughly around 55 African-American and voting 

age population. 

Mr. SCOTT. In the new map. 

Mr. ENGSTROM. In the baseline map. 

Mr. SCOTT. The baseline map. 

Mr. ENGSTROM. The changes whittled them down to roughly 50 

percent. 

Mr. SCOTT. If you didn’t create any influence districts you’re telling me you could do that gratuitously? 

Mr. ENGSTROM. I’m saying I believe that would be retrogressive. 

But if you’re sitting with a district that’s 80 percent African-American and you reduce it to 75 percent, I don’t think that calls for an 

objection under the preclearance requirement. You have got an opportunity to elect—when you go from 75 to 80, as a general matter 

the opportunity doesn’t change. Very little. So you don’t have to 

look at it like a linear thing and you’re always stuck with a packed 

district. You can reduce those district percentages without having 

a retrogressive consequence. 

So I don’t think we’re stuck with necessarily packing and 

ratcheting up, ratcheting up, ratcheting up after every census. I 

don’t think that’s the case at all. The Justice Department has made 

clear they don’t have a standard that says you can’t have a lower 

percentage in any of the district. 

Mr. CHABOT. The gentleman’s time expired a while ago. 

Mr. SCOTT. If I could—I’m not going to ask another question. I 

would want to say it puts the minority community in an awkward 

position to never having a choice when you talk about an 80 to 70. 

Maybe that’s not, in most places, insignificant, but 70 to 55 could 

be very significant. And unless you allow the consideration of what 

else is going on in the map, you’d be stuck with the 70. 

There are a lot of areas where you may, for political reasons of 

effective participation in the Government and the City Council, 

whatever, may want to reduce the percentage from a 70, say, to a 

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55 in order to create a more accommodating council, and unless 

you count the influence districts, you’re stuck. If all you’re looking 

at is one district, you’re retrogressing from 70 to 55. If you go from 

70 to 55 but create a good council where you might actually be able 

to take over, you don’t want to foreclose that as a possibility, ever; 

and if you don’t consider the totality of the circumstances, how do 

you do that? If we have another round—— Mr. CHABOT. We’re not planning on that, but the gentleman’s 

time has expired. 

The gentleman from North Carolina, Mr. Watt, is recognized for 

5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. Let me say to the witnesses that this has been just an absolutely great hearing this 

afternoon; and the one this morning was outstanding, too. So I 

want to thank all of you for being here. 

I think I’ll ask two questions. I want to ask the researchers a 

question, and then I want to ask the lawyers a question, two different questions. Let me deal with the researchers first. 

Because Mr. Blum this morning seemed to be saying that your 

study, Mr. Gaddie, leads to a conclusion that you don’t need section 

5 in Georgia. The beauty of this job is when I was practicing law 

I couldn’t ask a question I didn’t know the answer to. I can ask a 

question here, but I don’t know the answer. I don’t know what 

you’re going to say in response to this. Do you think your study 

suggests that, as Mr. Blum indicated this morning, that section 5 

preclearance is not warranted in Georgia? 

Mr. GADDIE. Mr. Watt, first of all, it’s nice to have an attorney 

ask a question where I have an advantage in cross-examination, so 

thank you. 

The context of the study is congressional elections, Statewide 

elections, minority participation. Using methodologies that both 

Professor Engstrom and I are familiar with, we examined bi-racial 

contests, which had the most probative value, and also White-onWhite contests for comparison; and in the context of what is typically now the election of consequence at these levels in Georgia, the 

general election, there’s little differentiation in the White voter 

choice between Black and White Democrats. 

This is really the point that I think needs to be made. We can 

assume a very high degree of cohesion among African-American 

voters in States like Georgia. Our estimates typically show 90 to 

99 percent Africa-American voter cohesion. So the question is, to 

what extent are White voters crossing over? 

When we look at the election of Thurgood Baker, we look at the 

election of Mike Thurmond, two Statewide Black elected officials in 

Georgia, we see them receiving votes from Whites at a rate comparable to other Democrats who win Statewide in Georgia. When 

we look at African-Americans who lose Statewide, Denise Majette 

for the U.S. Senate, we see her vote totals and her White vote 

shares coming in at a level comparable to other White candidates 

who lose Statewide. 

So in the context of partisan politics, African-American candidates are little differentiated from White candidates in Georgia. 

But, by the same token, if we look at the opportunities that exist, 

African-Americans are elected to the legislature, they are elected 

94

from districts that are approaching 50 percent. They could be elected from districts as low as 44 percent, and they are attracting 

White votes in the same fashion as Black candidates. 

So in the context of congressional elections and in the context of 

Statewide elections to State legislature, yes, I would agree with Mr. 

Blum. We have no conclusions about local Government. 

It has been alleged in a previous hearing here that 90 percent 

of jurisdictions covered by section 5 can bail out now if they wanted 

to. Maybe what we need to do is take a look and see if that number 

is correct, because there are probably jurisdictions in Georgia that 

still need to be covered, but, Statewide, Georgia seems to be in 

good shape. 

Mr. WATT. Has Georgia applied the bailout? And wouldn’t that 

be a fail-safe form even if the conclusion you say is a correct conclusion? I’m not cutting you off. I just want to get Mr. Engstrom 

to comment on the same question. Then I’ve got a legal question 

that I want to ask both the lawyers to comment on. So don’t take 

too much time because my red light is going to come on. 

Mr. ENGSTROM. Let me say, first of all, that Dr. Gaddie has said 

that districts as low as 44 percent provide an equal opportunity. I 

assume what he means is to elect African-American candidates of 

choice. I don’t agree. That’s based on that analysis done by Professor Epstein in the case which the District Court dismissed and 

which the Supreme Court only referenced. There’s no finding in the 

Supreme Court that says it’s 44 percent. The Supreme Court simply said and the State has a witness who will say that it’s 44 percent. 

I looked at that data when I was doing the case, and I discovered 

that that figure was—if you take out Cynthia McKinney, who 

wasn’t running for a State Senate seat but reelection to the U.S. 

House of Representatives, if you take her out and you look at Senate districts, without her the figure goes up over 50 percent. Or if 

you look at only Senate districts, I think it was—the figure went 

up over 50 percent. When McKinney and others were included, not 

dealing with State Senate elections but throwing in congressional 

and others, that brought the figure back down. 

But you had—what was in there were people like Cynthia 

McKinney running as incumbents and other African-American legislators running as incumbents. And I do want to note she was 

even treated as not an incumbent when she ran for reelection because of a decision rule that said not over 50 percent of her old district was in her new district. That was after the mid-decade 

change, I believe. 

Mr. WATT. So I can’t reconcile what Mr. Blum, Mr. Gaddie and 

Mr. Engstrom just told me. I just have to be a fact finder here and 

make up my own mind. That’s what you all are telling me. 

Mr. ENGSTROM. I can add one thing, but I don’t——

Mr. CHABOT. The gentleman’s time has expired. However, you 

can answer the question. 

Mr. ENGSTROM. I just want to say one other thing that disturbed 

me. I haven’t read the study, haven’t seen it at all, but the constant references to no different than some States that are not subject to a preclearance—and I remember Arkansas being mentioned. 

Well, I would hope we would not throw out the preclearance proviVerDate 0ct 09 2002 12:24 Mar 07, 2006 Jkt 000000 PO 00000 Frm 00098 Fmt 6633 Sfmt 6601 G:\WORK\CONST\102505B\24121.000 HJUD2 PsN: 24121
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sion of section 5, because in some of those jurisdictions racially polarized voting is similar to the State of Arkansas. I haven’t done 

recent work in Arkansas, but I did work in Arkansas. I was an expert in a case in which racially polarized voting was found, and it 

was at a substantial level, and it was not only found by my statistics that I presented. But three judges, all from—who had grown 

up and lived in Arkansas, they simply said, in addition to my evidence, they take judicial notice that voting is racially polarized in 

the State of Arkansas. 

Mr. WATT. Mr. Chairman, can I ask unanimous consent for one 

additional minute on the presumption that the lawyers will answer 

my questions quicker than the social scientists will? 

Mr. CHABOT. Without objection. 

Mr. WATT. Legal question, is there any doubt in the two lawyers’

minds that the Supreme Court has now interpreted the section 5 

preclearance standard different than what Congress intended for it 

to be? And what do you think the standard ought to be? I think 

Mr. Hunter already got toward that objective in the later part of 

his written testimony. What’s you all’s opinion on where the Supreme Court has gotten to on this standard? Is it consistent with 

what you understood to be congressional intent? 

Mr. HUNTER. No, sir, it would not be mine. I think if you move 

back toward the Arlington Heights kind of analysis you’d be on safe 

constitutional ground, and I don’t believe that—and I believe it 

would be consistent with what was meant in the ’60’s, ’70’s and ’80’s when you reauthorized the act. 

Mr. MCDONALD. I fully share Mr. Hunter’s views. I think Bossier 

II is just fundamentally inconsistent. 

Mr. WATT. See, I told you all lawyers could answer questions 

quicker than social scientists. I didn’t have any doubt about it. 

I yield back. 

Mr. CHABOT. The gentleman’s time is expired. 

The gentlelady from California, Ms. Sa ́nchez, who’s not actually 

a Member of this Committee but is a Member of the full Committee, I would ask unanimous consent, although they don’t normally ask questions, I would be happy if she would like to take 5 

minutes to ask questions if no one will object. 

Hearing none, the gentlelady has 5 minutes. 

Ms. SA ́ NCHEZ. Thank you, Mr. Chairman. 

Before I begin, I just wanted to bring the Committee’s attention 

to the fact that a pioneer in voter participation and minority representation passed. Ed Roybal, who was a Member of the House of 

Representatives for 30 years, passed yesterday; and I just wanted 

to honor him by keeping him in our thoughts. He’s the father of 

Representative Lucille Roybal-Allard, so please keep her in your 

thoughts as well. 

I would also ask unanimous consent to submit an opening statement for the record. 

Mr. CHABOT. Without objection, it will be entered into the record. 

[The prepared statement of Ms. Sa ́nchez follows in the Appendix] 

Ms. SA ́ NCHEZ. I could lie and say they’re going to be quick questions, but that all depends on how lengthy the answers are. 

I’d like to begin with Professor Engstrom. I agree with your conclusions that your research supports, given the racial polarization 

96

of many jurisdictions, that section 5 coverage needs to remain in 

force where it presently applies. My question is, with the growth 

of the Latino population in the United States and the potential establishment of new racially polarized cities and counties, how do 

you recommend that those jurisdictions receive protection from voting discrimination? Do you believe that it would be wise to establish a mechanism when the VRA is reauthorized to allow the Department of Justice to exercise some oversight or control in those 

areas? 

Mr. ENGSTROM. I have to admit I’m answering first impression, 

but my first impression is, yes, given Latino growth, given areas 

that may not have been previously covered because of the relative 

absence of Latinos and now a substantial presence of them, I think 

it is something definitely worthy of looking into to see if the coverage mechanism couldn’t include new problems that are new geographically, not old problems, but are now surfacing in new situations because of the change in population and demographics. 

Ms. SA ́ NCHEZ. Could you envision mechanisms that are comparable to some of the mechanisms that have been used in the past 

where the minority population has historically been African-American that has experienced these kinds of discriminatory tactics? 

Mr. ENGSTROM. I think the first thing would be to look at whether existing mechanisms do the job and would do it effectively in 

this new context. I don’t really have—it’s not something I’ve been 

thinking a lot of, I have to admit. I’m sorry. 

Ms. SA ́ NCHEZ. I’ve hopefully planted the seed. 

Mr. CHABOT. Will the gentlelady yield for a moment? 

I believe section 3, I think that already covers it, but we appreciate the lady bringing that up. 

I yield back. 

Ms. SA ́ NCHEZ. Anything further to add, Mr. Engstrom? 

Mr. ENGSTROM. I don’t have the answers. Again it’s something 

I’d have to give thought to, but I think it’s worthy of taking a serious look at. 

Ms. SA ́ NCHEZ. Thank you. 

Mr. McDonald, a question for you. I would like, if you would be 

so kind, for you to shed some more light on how proposed changes 

to voting laws can have retrogressive effects. I know that some detractors feel that it’s no longer necessary to gain Federal approval 

to insure that a proposed voting change is not retrogressive. I’m 

specifically interested if you can explain how seemingly minor voting changes can have a major retrogressive effect on voting acts, 

for example, the changing of a polling place location. Can you talk 

a little bit more about that? 

Mr. MCDONALD. Well, all of these changes can have an important 

affect. The implementation of a majority vote requirement, for example, for a Mayor of a city doesn’t sound like a huge change, but 

if you have three or four White candidates running and one Black 

candidate running, it may very well be that the White candidates 

will split the White vote and the Black candidate would get the 

plurality. If you abolish that and go to a majority vote requirement, 

it means the Whites can always regroup in the runoff. In fact, 

throughout the South there is a pattern of the adoption by jurisdicVerDate 0ct 09 2002 12:24 Mar 07, 2006 Jkt 000000 PO 00000 Frm 00100 Fmt 6633 Sfmt 6601 G:\WORK\CONST\102505B\24121.000 HJUD2 PsN: 24121
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tions of those kinds of discriminatory voting practices to blunt the 

effect of increased registration and turnout by Blacks. 

Things like numbered post provisions, which isolate people on 

one-on-one contests, also dilute the voting strength of a discrete minority. Staggered terms of office, which restrict the number of posts 

that are up in any election, have the same effect. We had the State 

Legislature in South Carolina 2 years ago enacting a system for a 

school board going from a nonpartisan, multi-seat format to a partisan format which the district court had just ruled diluted minority voting strength and you have the legislature adopting that very 

system for the school board. So I mean some of them are subtle; 

some are not so subtle. We have the State of Georgia enacting its 

photo ID requirement, which is resurrecting the poll tax. 

Ms. SA ́ NCHEZ. Thank you so much for your testimony, and I yield 

back. 

Mr. CHABOT. Thank you. The gentlelady’s time is expired. 

I think that concludes the questioning by the Members of the 

panel up here this afternoon. 

I would just note again for the record something I had indicated 

early on in the hearing, that we had scheduled two hearings this 

Thursday which will no longer take place. They’ll be, we think, 

next week; and we’ll let both sides know when they are rescheduled. 

We want to thank the panel this afternoon. My esteemed colleague from New York, the Ranking Member, said not only was 

this interesting but the testimony was scintillating. His term, but 

I think he’s right. This was very helpful. 

Also goes to again make sure that the record which will be necessary ultimately to make sure that it’s complete is more complete 

than it was prior to this hearing, and we appreciate very much this 

panel for having that effect. So thank you again for coming. 

If there’s no further business to come before the Committee, 

we’re adjourned. Thank you. 

[Whereupon, at 3:40 p.m., the Subcommittee was adjourned.] 

(99)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN AND MEMBER OF THE SUBCOMMITEE ON CONSTITUTION

With our review of the history, scope and purpose of Section 5, we turn to the 

heart of the matter on reauthorization of the Voting Rights Act. Under Section 5, 

any change with respect to voting in a covered jurisdiction—or any political subunit 

within it—cannot legally be enforced unless and until the jurisdiction first obtains 

preclearance, either from the Department of Justice or the United States District 

Court for the District of Columbia. 

Preclearance requires proof that the proposed voting change does not deny or 

abridge the right to vote on account of race, color, or membership in a language minority group. If the jurisdiction is unable to prove the absence of such discrimination, the District Court denies preclearance, or in the case of administrative submissions, the Attorney General objects to the change, and it remains legally unenforceable. 

At the time of its original passage, some in Congress complained of the serious 

burden that Section 5 placed on covered jurisdictions, as they do today. But then, 

as now, I believe it is more important to focus on the fundamental rights being protected by the Act and the history of federal enforcement efforts. 

Some choose to ignore the fact that, prior to 1965, the federal government had 

attempted to strike down discrimination in voting, only to face some mutation of a 

discriminatory scheme from jurisdictions shortly thereafter. Section 5 was designed 

to stop this continual march from court to court and to achieve a substantial initial 

victory allowing African-American access to the ballot box. 

The Voting Rights Act has been amended three (3) times to broaden the scope of 

the Section 5’s coverage to language minorities and to cope with the changing nature of voting discrimination. Now we must ask ourselves: how does Section 5 evolve 

or has it outlived its usefulness. Today, some of our witnesses may suggest that the 

time for Section5 has passed and that we should move on, relying on Section 2 of 

the Act to address any continuing discrimination. 

Others have already pointed out that the continuing record of Section 5 objections 

supports a need for reauthorization and strengthening enforcement provisions, like 

Section 5. While I believe that the Act should be fully reauthorized, it is vital that 

we understand all the arguments regarding the merits of Section 5, and the other 

special provisions, to ensure that we build a record adequate to insulate this important legislation from any constitutional challenge. I look forward to our exploration 

of the evolution of Section 5 over the course of these next four (4) hearings.

STATEMENT OF THE HONORABLE LINDA T. SA ́ NCHEZ, A REPRESENTATIVE IN CONGRESS

FROM THE STATE OF CALIFORNIA

Thank you Chairman Chabot and Ranking Member Nadler for convening today’s 

hearing. I appreciate the opportunity to join the Constitution Subcommittee’s review 

of the ‘‘Continuing Need for Section 5’’ of the Voting Rights Act. 

I believe very strongly that Section 5 of the Voting Rights Act needs to continue 

so that minority voters are empowered to elect the candidates of their choice and 

fully participate in the political process. 

In recent nationally published op-eds, some commentators have described the preclearance provision as ‘‘antiquarian nonsense.’’ Apparently, these detractors believe 

that preventing voting fraud and intimidation is ‘‘nonsense.’’ I firmly disagree. 

100

The pre-clearance provision of Section 5 offers protections against retrogressive 

changes to polling places and other tactics that can further fraud and intimidation. 

Section 5’s pre-clearance requirements have effectively detected and prohibited 

voting laws and procedures used in many jurisdictions to deprive Latinos and other 

minorities of their voting power. 

In addition to its direct effects, Section 5 acts as a strong deterrent against discriminatory voting changes by local officials and legislators. These officials are much 

less likely to propose discriminatory voting changes because they know that these 

changes have to meet the pre-clearance requirements. 

One of the most important elements of Section 5 is that it is broad in scope and 

provides all minority voters with full protection from discrimination. 

Another key element of Section 5 is that it’s written in plain language that has 

long been understood to prohibit both purposeful discriminatory voting changes and 

also those voting changes that have a discriminatory effect. 

The breadth of Section 5 and its plain language provides minority voters with 

substantial protections against discriminatory voting practices. 

However, recent Supreme Court rulings have effectively eliminated many of the 

protections in the Section 5 pre-clearance test, and as a result significantly reduced 

the power of Section 5. 

For example, in the Reno v. Bossier Parish School Board, the Supreme Court 

upheld a Louisiana school board district plan that intentionally prevented AfricanAmerican majority districts from being established. 

The court reasoned that because there had never been a Black district in Bossier 

Parish, the Department of Justice was powerless to block intentionally discriminatory voting changes unless it found that the jurisdiction acted with the ‘‘retrogressive purpose’’ of making things worse for African-Americans. 

As a result of the Supreme Court’s ruling, election officials in purposefully segregated jurisdictions can now make new voting changes that are intentionally 

meant to perpetuate the discrimination against minority voters, and those changes 

would not violate Section 5. 

That is certainly not the result that Congress contemplated when Section 5 was 

written. Section 5 has an ‘‘effect’’ prong and a ‘‘purpose’’ prong that are meant to 

prohibit voting practices that are discriminatory both in effect and in intent. 

The Supreme Court’s ruling has substantially weakened the Department of Justice’s power to protect minority voters from voting practices that are intentionally

designed to diminish minorities’ power in the political process. 

It is critical that Section 5 be reauthorized and also changed to restore the ‘‘purpose’’ prong of the Section 5 pre-clearance test and give the Department of Justice 

full power to enforce the Voting Rights Act. 

Before I conclude, I would also like to state for the record my opposition to the 

nationwide application of Section 5. This would be disastrous, and would ultimately 

render this important provision ineffective. 

Under current law, the Department of Justice has the ability to focus and target 

their enforcement. We need to ensure that DOJ retains this power so that they can 

better focus their work on the jurisdictions where a recent history of voting discrimination remains. 

Again, I thank Chairman Chabot and Ranking Member Nadler for their courtesy 

in letting me participate in these hearings. 

I yield back the balance of my time.

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APPENDIX TO THE STATEMENT OF LAUGHLIN MCDONALD: ‘‘THE NEED TO EXPAND THE

COVERAGE OF SECTION 5 OF THE VOTING RIGHTS ACT IN INDIAN COUNTRY’’


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APPENDIX TO THE STATEMENT OF LAUGHLIN MCDONALD: ‘‘THE VOTING RIGHTS ACT

OF INDIAN COUNTRY: SOUTH DAKOTA, A CASE STUDY’’ AMERICAN INDIAN LAW REVIEW, 29 AM. INDIAN L. REV. 43


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APPENDIX TO THE STATEMENT OF ROBERT HUNTER: ‘‘RACIAL GERRYMANDERING AND

THE VOTING RIGHTS ACT IN NORTH CAROLINA.’’ CAMPBELL LAW REVIEW, 9 CAMPBELL L. REV. 255


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INSERTED INTO THE RECORD BY CHAIRMAN CHABOT ON OCTOBER 26, 2005: BEER V. 

UNITED STATES (425 U.S. 130, 96 S. CT. 1357)


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Æ


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