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FANNIE LOU HAMER, ROSA PARKS, AND CORETTA

SCOTT KING VOTING RIGHTS ACT REAUTHORIZATION AND AMENDMENTS ACT OF 2006

(PART I)

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

ON

H.R. 9

MAY 4, 2006

Serial No. 109–101

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 

MAY 4, 2006

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 Robert C. Scott, a Representative in Congress from the State 

of Virginia, and 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 .............. 4

The Honorable Melvin L. Watt, a Representative in Congress from the State 

of North Carolina, and Member, Subcommittee on the Constitution .............. 5

The Honorable Chris Van Hollen, a Representative in Congress from the 

State of Maryland, and Member, Subcommittee on the Constitution ............. 7

The Honorable Linda T. Sa ́nchez, a Representative in Congress from the 

State of California, and Member, Committee on the Judiciary ....................... 7

WITNESSES 

Mr. J. Gerald Hebert, former Acting Chief, Civil Rights Division, Department 

of Justice 

Oral Testimony ..................................................................................................... 9

Prepared Statement ............................................................................................. 11

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

Oral Testimony ..................................................................................................... 13

Prepared Statement ............................................................................................. 16

Mr. Debo P. Adegbile, Associate Director of Litigation, NAACP Legal Defense 

and Educational Fund, Inc. 

Oral Testimony ..................................................................................................... 38

Prepared Statement ............................................................................................. 40

APPENDIX 

MATERIAL SUBMITTED FOR THE HEARING RECORD

Prepared Statement of the Honorable John Conyers, Jr., a Representative 

in Congress from the State of Michigan, and Member, Subcommittee on 

the Constitution ................................................................................................... 73

Prepared Statement of the Honorable Melvin L. Watt, a Representative in 

Congress from the State of North Carolina, and Member, Subcommittee 

on the Constitution .............................................................................................. 73

Prepared Statement of the Honorable John Lewis, a Representative in Congress from the State of Georgia .......................................................................... 75

Prepared Statement of the Honorable William J. Jefferson, a Representative 

in Congress from the State of Louisiana ............................................................ 77

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in Alaska, Michigan, New Hampshire, and South Dakota ............... 79

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in California .......................................................................................... 107

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in Arkansas ........................................................................................... 132

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in Oklahoma ......................................................................................... 153

Page

IV

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in Mississippi ........................................................................................ 177

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in New York .......................................................................................... 203

Appendix to the Statement of Roger Clegg: An Assessment of Voting Rights 

Progress in Tennessee ......................................................................................... 235

Prepared Statement of the Honorable J.C. Watts, Jr. .......................................... 258

Prepared Statement of Jan Tyler, former Denver Election Commissioner ........ 264

Ana Henderson and Christopher Edley, Jr., ‘‘Voting Rights Act Reauthorization: Research-Based Recommendations to Improve Voting Access,’’ Chief 

Justice Earl Warren Institute on Race, Ethnicity and Diversity ..................... 266

(1)

FANNIE LOU HAMER, ROSA PARKS, AND 

CORETTA SCOTT KING VOTING RIGHTS ACT 

REAUTHORIZATION AND AMENDMENTS ACT 

OF 2006 (PART I) 

THURSDAY, MAY 4, 2006

HOUSE OF REPRESENTATIVES, 

SUBCOMMITTEE ON THE CONSTITUTION, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC.

The Subcommittee met, pursuant to notice, at 9:07 a.m., in Room 

2141, Rayburn House Office Building, the Honorable Steve Chabot 

(Chairman of the Subcommittee) presiding. 

Mr. CHABOT. The Committee will come to order. This is the Subcommittee on the Constitution. 

Good morning. We want to thank everyone for being here today. 

This is the Subcommittee on the Constitution, as I mentioned. This 

morning marks an important step for this Committee as it continues its examination of the Voting Rights Act of 1965 and the 

temporary provisions that are set to expire on August 6, 2007. 

Last fall, over the course of nine hearings, this Subcommittee examined in great detail each of the temporary provisions of the Voting Rights Act currently set to expire. With regard to sections 5 

and 203, we held multiple hearings to ensure that all of the issues 

raised were addressed. This past March, we held an additional 

hearing to incorporate into the Committee’s record a series of individual State and national reports documenting the continuing problem of racial discrimination in voting in the last 25 years and the 

necessity of the temporary provisions to protect minority voters in 

this Nation. 

Today we have before us H.R. 9, the ‘‘Voting Rights Act Reauthorization and Amendments Act of 2006,’’ the product of this Committee’s work over the last 7 months. 

I’d like to take a moment to thank my colleagues and those in 

the audience, who have been with us from the start, for their dedication and commitment to get us where we are today. In keeping 

with the bipartisan spirit of our hearings and previous reauthorizations, I’m proud to say that H.R. 9 is, again, the result of a bipartisan effort. 

H.R. 9 extends the temporary provisions of the Voting Rights Act 

for an additional 25 years. In addition, H.R. 9 makes changes to 

certain provisions, including restoring the original purpose of section 5. In reauthorizing the temporary provisions, the Committee 

2

heard from several witnesses who testified about voter discrimination that currently exists in covered jurisdictions. 

It is on this evidence that the Committee considers it necessary 

to continue the temporary provisions for another 25 years. I believe 

it’s important to note that in reauthorizing the temporary provisions the Supreme Court, in South Carolina v. Katzenbach and 

later in City of Rome v. United States, upheld Congress’s broad authority under section 2 of the 15th amendment to use the temporary provisions to address the problem of racial discrimination in 

voting in certain jurisdictions. With H.R. 9, Congress again invokes 

its authority under section 2 in order to appropriately address the 

continued problem of discrimination in voting that is revealed in 

the record before it. 

In addition to reauthorizing, the Committee finds it necessary to 

make certain changes to ensure that the provisions of the Voting 

Rights Act remain effective. For example, testimony received by the 

Committee indicates that Federal examiners have not been used in 

the last 20 years, but Federal observers continue to provide vital 

oversight. H.R. 9 strikes the Federal examiner provisions while retaining the authority of the Attorney General to assign Federal observers to covered jurisdictions over the next 25 years. 

In addition, H.R. 9 provides for the recovery of expert costs as 

part of attorney fees. This change brings the Voting Rights Act in 

line with current civil rights laws, which already allow for the recovery of such costs. 

H.R. 9 also makes technical changes to section 203, which will 

be discussed later this afternoon in a separate hearing. That hearing is at 2 o’clock this afternoon. 

Most importantly, H.R. 9 seeks to restore the original purpose to 

section 5. Beginning in 2000, the Supreme Court, in Reno v. Bossier Parish, and later, in 2003, in the case of Georgia v. Ashcroft, issued decisions that significantly altered section 5. H.R. 9 clarifies 

Congress’s original intent with regard to section 5. 

This morning we will hear from our witnesses and discuss those 

provisions of the bill that address sections 4 through 8, the trigger, 

bailout, preclearance, and observer provisions, and section 14, 

which addresses the issue of attorney fees, of the Voting Rights 

Act. This afternoon we will devote our discussion to the provisions 

of the bill that reauthorizes and amends section 203. 

I’d like to welcome and thank our witnesses here this morning, 

as well as our distinguished guests who are sitting with us on the 

dais this morning. None of the guests are here yet, so we won’t recognize them at this time. 

The gentleman from New York, Mr. Nadler, the Ranking Member, is not here. The very distinguished gentleman from Virginia, 

Mr. Scott, is here, and would he like to make an opening statement? 

Mr. SCOTT. Thank you, Mr. Chairman. Representative Nadler 

wanted to be here but was unavoidably detained and asked me to 

sit in on his behalf. He’s a strong supporter of the Voting Rights 

Act and regretted that he couldn’t be here today. 

But it’s been 40 years since passage of the Voting Rights Act, 

and that act has guarantees millions of Americans equal opportunity to participate in the political process. The genius of the act 

3

was not simply that it outlawed discrimination at the ballot box; 

it also gave voters new tools to ensure fundamental fairness in the 

voting process. 

In past years, Congress has recognized the tenacious grip of discrimination in voting and we’ve continued to reauthorize the sections that will be discussed here today. These expiring provisions 

are essential to ensuring fairness in our political process and equal 

opportunity for minorities in America. 

From the initial passage of the Voting Rights Act, Congress has 

relied on an extensive record of discrimination in voting to justify 

the continuing needs for the remedies imposed by the expiring provisions. In the original enactment of the Voting Rights Act and 

subsequent reauthorizations, Congress made sure that the Voting 

Rights Act remedies were proportionate to the problems Congress 

sought to cure. 

In October of last year, we began the task of building a record 

to ascertain whether or not there was an ongoing need for these 

provisions. Through hearings in the Committee and field hearings 

conducted by many of the groups represented here on the panel, we 

have been able to build a clear and convincing record that there is 

a continuing need for the expiring provisions in the bill. 

The temptation to manipulate the law in ways that will disadvantage minority voters is great, as great and irresistible today 

as it was in 1982. There are many specific issues that need to be 

addressed, including the clear need for section 5 in light of the inadequate remedies provided under section 2. Section 5 must be reauthorized to continue blocking the implementation of discriminatory voting changes, whether by deterring jurisdictions from enacting the discriminatory law in the first place or by routinely blocking those changes in the courts. 

In the absence of section 5, a new State law can only be challenged in the time-consuming, vote-dilution litigation under section 

2, where minority plaintiffs bear the burden of proof and, from a 

practical point of view and more significantly, they also suffer the 

burden of expenses in bringing the case. 

The Supreme Court has ruled that winning parties in civil rights 

cases cannot recover expert witness fees as part of recoverable 

costs that they are entitled to receive, and this creates a chilling 

effect on voting rights litigation because it prevents lawyers and 

nonprofit organizations from recovering tens of thousands of dollars, sometimes hundreds of thousands of dollars, in expert witness 

fees. 

During the reauthorization process, we were able to consider the 

impact of Georgia v. Ashcroft on section 5. According to the Court, 

the ability to elect is ‘‘important’’ and ‘‘integral,’’ but a court must 

now consider the ability to ‘‘influence and elect sympathetic representatives.’’ Although this consideration under the facts of Georgia v. Ashcroft may not have caused a problem because a majority 

found that the number of minority-majority districts was not reduced—dicta in the case clearly suggests that there may not be a 

violation of districts in which minority voters can elect candidates 

of choice—or dismantled, creating some ill-defined list of influenced 

districts. 

4

The reauthorization and legislative history of section 5 must 

make it clear that this portion of the Voting Rights Act has been 

enacted to ensure that minority voters, where possible, ought to be 

able to elect candidates of choice. Influence in coalition districts 

will of course be a consideration in evaluation of the total plan, but 

the primary evaluation will be districts in which minority voters 

are able to elect candidates of choice. 

Our record reflects a continuing need for these expiring provisions. At a time when America has staked so much of its international reputation on the need to spread democracy around the 

world, we must ensure its vitality here at home. H.R. 9 does just 

that. 

Thank you, Mr. Chairman. 

Mr. CHABOT. Thank you very much. 

Mr. Franks, did you wish to make an opening statement? 

Mr. FRANKS. No. 

Mr. CHABOT. Do any other Members wish to make an opening 

statement? The gentleman from Michigan, the distinguished Ranking Member of the full Committee, Mr. Conyers, is recognized. 

Mr. CONYERS. Thank you, Mr. Chairman. I’ll put my statement 

in the record, but I am impressed that this Committee has probably done the kind of a job that I think will stand the scrutiny of 

history and that will also be commended for the fair way that we 

examine the problems that are connected with the reauthorization 

of this Voting Rights Act. 

We’ve broken our examination down before the introduction of 

H.R. 9 into a couple fundamental questions: Is there an adequate 

record of discrimination to justify reauthorizing the expiring provisions; and, Are the expiring provisions, as interpreted by the 

courts, still adequate to protect the rights of minority voters? And 

these are the questions that have guided us. 

I think there is an ample record through at least nine hearings. 

And now as we go through the actual bill that has been introduced, 

on a bipartisan basis, I think that we should applaud you, Mr. 

Chairman, in the way that you have conducted a very thorough set 

of hearings that I think will stand the test of time. 

Mr. CHABOT. Thank you very much. 

Mr. CONYERS. The fact of the matter is that the questions that 

we are examining now will further help us. I welcome the witnesses back again who have participated and have helped us. We 

need to make sure that it is understood that circumstantial evidence in dealing with intentional discrimination is a very important part of the way we interpret the law. 

We also need to realize that the changes that have been made 

to deal with court interpretation previously has been done before 

at other reauthorization hearings. And so this is nothing particularly new. 

But I think that we might be well-advised that we’ve gone neither too far or left anything undone. I don’t think that this was a 

pro-Voting Rights extension exercise and that everybody was cut 

out, because that’s not the case. We’ve had balanced discussion, 

we’ve welcomed criticism from all quarters, we’ve examined every 

theory, plausible objection, and we continue to do it in the hearings 

that remain on the bill itself. 

5

So to me, I think there’s been an excellent job done. I feel confident that we will be in the best circumstances to face a Court 

which we are not sure of where they will be going. There are many 

on the Court whose exact position on some of these questions is not 

clear or is unknown to us as we put together, from everything that 

we’ve been able to see, hear, examine, interpret, and also take from 

circumstantial evidence, the very fact that there’s a need for the 

Voting Rights Act to be improved and continued. 

It’s a huge job at a very difficult period of legislative time. I want 

to just let everyone know, each Member of the Committee. I single 

out Mel Watt, who has taken on an extraordinary role in this regard. The Chairman of the full Committee has worked with every 

recommendation, every improvement that we’ve sought in the process, Jim Sensenbrenner. And so I come here fully satisfied that 

these discussions, these witnesses, the evidence that has been produced for this very voluminous record will be able to withstand the 

exacting scrutiny of the courts that will be called upon to evaluate 

it in the future. 

I thank you very much. 

Mr. CHABOT. Thank you. 

The gentleman from Virginia, Mr. Scott, is recognized out of 

order. 

Mr. SCOTT. Thank you, Mr. Chairman. Mr. Chairman, I just 

wanted to follow up on the comments just made by the gentleman 

from Michigan. 

As you indicated in your comments, this has been a work, a bipartisan work that you and Ranking Member Nadler worked very 

well together. The Chairman of the Black Caucus, Mr. Watt, did 

a yeoman’s job in working with all of the different groups. Mr. Sensenbrenner, the Chairman of the full Committee, and Mr. Conyers. 

And working with the Senate. This has been a tremendous job. 

We’ve developed a record that I think is a model for bipartisan cooperation that I think, hopefully, we would see before. 

But I would want to signal particularly focus on the job that 

Chairman of the Black Caucus Mel Watt from North Carolina has 

done in working with this. It has not been an easy job. He’s been 

criticized by everybody. But I think the final product is a testimony 

of his good work and resolve and willingness to take arrows from 

both sides and put together a bill that I think everybody can be 

proud of. 

Mr. CHABOT. Just let the record note that I haven’t criticized 

him. [Laughter.] 

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

5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

I could certainly take more than my 5 minutes that I have here 

to just thank people. I think I will refrain from doing that on this 

occasion, except to re-extend the thanks that I made to you and 

Ranking Member Nadler for sitting through all of these hearings 

and developing the record, which I think will be so important as 

we move forward; and to extend thanks again to Ranking Member 

Conyers for having the confidence in me to allow me to proceed as 

his representative in the negotiations about the bill. 

6

I could certainly spend more than my 5 minutes summarizing 

the bill that we have arrived at. I think it is thorough and good, 

but Mr. Scott has done a magnificent job of doing that summary. 

Or I could spend more than my 5 minutes reading this eloquent 

statement that my staff has prepared for me. I think I will submit 

that for the record also. 

What I thought might be helpful to us, though, to set the stage, 

is to let you know that I have been preparing to give a commencement speech at Fisk University, which is the school from which, 

after John Lewis, our colleague and moral leader in this fight, went 

to jail, and it took him a long time to get through to graduation. 

But he did graduate from Fisk University, and I’m doing the commencement address there. And it’s given me the occasion to go 

back and reread some excerpts from the book that John Lewis has 

written called ‘‘Walking With the Wind.’’ And I can’t think of really a better backdrop to this discussion 

or to our pending markup as we go forward than to just read this 

atmosphere that people were operating in leading up to the passage of the Voting Rights Act. This is from page 326 of John Lewis’s book, ‘‘Walking With the Wind’’: ‘‘When we reached the crest of the bridge, I stopped dead still. 

So did Josea. There, facing us at the bottom of the other side, stood 

a sea of blue-helmeted, blue-uniformed Alabama State Troopers, 

line after line of them, dozens of battle-ready lawmen stretching 

from one side of U.S. Highway 80 to the other. Behind them were 

several dozen more armed men, Sheriff Clark’s posse—some on 

horseback, all wearing khaki clothing, many carrying clubs the size 

of baseball bats. ‘‘On one side of the road I could see a crowd of about a hundred 

Whites laughing and hollering, waving Confederate flags. Beyond 

them, at a safe distance, stood a small, silent group of Black people. I could see a crowd of newsmen and reporters gathered in the 

parking lot of a Pontiac dealership. And I could see a line of Park 

Police and State Trooper vehicles. I didn’t know it at the time, but 

Clark and Lingo were in one of those cars. 

‘‘It was a drop of 100 feet from the top of the bridge to the river 

below. Josea glanced down at the muddy water and said, ‘Can you 

swim?’ ‘No,’ I answered. ‘Well,’ he said with a tiny half-smile, ‘neither can I.’ ‘But,’ he added, lifting his head and looking straight 

ahead,‘ we might have to today.’

‘‘Then we moved forward. The only sounds were our footsteps on 

the bridge and the snorting of a horse ahead of us.’’

Mr. Chairman, this is how we got here, this historical backdrop 

against which we were operating, in which President Johnson and 

those brave people, Members of Congress, enacted the original voting rights law. We’ve come a long way since then, but our record 

demonstrates amply, more than amply, that we still have a long 

way to go. And we have to keep on this mission at this basic democratic level—‘‘democratic’’ with a small ‘‘d’’—ensuring that every 

single citizen has the right to participate and have their voices 

heard in the political process. That’s what this has been about. 

I want to thank everybody who has been involved in this. I hope 

we can move forward to finish this job with this bill. 

Thank you so much. 

7

Mr. CHABOT. Thank you very much for that particularly gripping 

opening statement. We appreciate you sharing Congressman Lewis’s book with us. 

The gentleman from Maryland, Mr. Van Hollen, is recognized, if 

he’d like to make an opening statement. 

Mr. VAN HOLLEN. Well, thank you, Mr. Chairman. I will be brief. 

I want to thank you and the Chairman of the full Committee, Mr. 

Sensenbrenner, and Mr. Watt, Mr. Conyers, Mr. Scott, and others 

who have worked for so long in making sure that this right that 

people lost their lives over and people fought so long to secure will 

be extended in the future if this Congress moves forward as I hope 

it will. I’m proud to be a cosponsor of this piece of legislation. 

I just want to thank everybody for working together, and hope 

we can see it through the process to the President’s desk. Thank 

you. 

Mr. CHABOT. Thank you. 

And Ms. Sa ́nchez, who’s not a Member of this Committee but is 

a Member of the full Committee, would you like to make an opening statement? The gentlelady is recognized. 

Ms. SA ́ NCHEZ. Thank you, Chairman Chabot. And I also want to 

extend my thanks to Ranking Member Nadler for allowing me to 

join the Constitution Subcommittee for another important hearing 

on reauthorization of the Voting Rights Act. 

Today’s hearing is particularly special for me and in fact for everybody who has worked on the reauthorization effort. We have a 

bipartisan bill that honors the sacrifices and intentions of our great 

champions of the civil rights movement. And more importantly, 

this bill protects the fundamental right of all citizens in our country to vote. 

I was particularly proud to stand on the Capitol steps on Tuesday for the press conference announcing the introduction of the bill. 

There were a lot of Members of Congress there who were thanked 

for their efforts in the reauthorization. But I want to personally 

thank Congressmen Chabot and Nadler for being the first to start 

the process of building the congressional record and now conducting legislative hearings on this landmark bill. 

H.R. 9 is a shining example of the kind of quality bipartisan legislation that respects American ideals and puts partisanship aside. 

As a member of the Congressional Hispanic Caucus and a former 

civil rights attorney, this bill has every provision that I hoped it 

would contain when the reauthorization process began last fall. 

H.R. 9 extends the preclearance requirements in section 5 for another 25 years and strengthens section 5 by repairing the damage 

done by the Supreme Court in Reno v. Bossier Parish and Georgia 

v. Ashcroft, those two cases. These are, I feel, very productive improvements in the VRA that will protect citizens’ voting rights nationwide. 

I’m also extremely pleased that the language assistance provisions in section 203 are reauthorized in this bill. My congressional 

district lies in Los Angeles County, which has been covered by section 203 since the year 2000. And I have seen first-hand how Hispanic, Chinese, Filipino, Japanese, Korean, and Vietnamese constituents have benefitted from those language assistance provisions 

when they go to the polls. That’s why I believe that reauthorizing 

8

section 203 is an essential provision of H.R. 9. Voting is a fundamental right that should be protected for all citizens, and that includes language minorities. 

Voting is the one way that every American citizen can participate, influence, and collectively shape our democratic Government. 

The ability to fully participate in an informed way should not be 

denied to those citizens—and I emphasize ‘‘citizens’’—who are more 

fluent in other languages other than English. 

Today I think the icons of the civil rights movement after whom 

this bill is named—Fannie Lou Hamer, Ms. Rosa Parks, and 

Coretta Scott King—would be proud to have a bill that protects all 

citizens’ right to vote regardless of their race, ethnicity, education 

level, or language proficiency. And I can’t think of a better bill to 

have worked on. 

We have Members backing this bill that come from all political 

stripes. They come from diverse ethnic and racial backgrounds and 

from Wisconsin to Florida, New York to California. This bill and 

those in support of it are a reflection of the best that America can 

do. 

I sincerely hope that as this bill makes its way through the legislative process in both the House and the Senate, partisan concerns 

are put aside. Every Member of this body should join in support 

for this bill as it is currently drafted and resist urges to weaken 

this landmark bill or strip any of its provisions for short-term political points. 

And again, I just want to thank the Ranking Member and the 

Chairman of both the Subcommittee and full Committee for their 

leadership on this issue. I yield back. 

Mr. CHABOT. Thank you very much. 

We’ll now get into the introduction of the panel here. 

Let me begin by saying that, without objection, all Members will 

have 5 legislative days to submit additional materials for the hearing record. 

Our first witness will be Mr. J. Gerald Hebert. Mr. Hebert is a 

sole practitioner in Alexandria, Virginia, focusing on election law 

and redistricting. Mr. Hebert has had an extensive career in voting 

litigation, representing a number of States in redistricting and election issues, including the States of Texas, California, New York, 

South Carolina, and Virginia. Prior to his practitioner work, Mr. 

Hebert worked at the Department of Justice from 1973 to 1994, 

where he served as acting chief, deputy chief, and special litigation 

counsel in the Voting Section of the Civil Rights Division. Mr. 

Hebert served as lead attorney in numerous voting rights and redistricting suits and as chief trial counsel in over 100 voting rights 

lawsuits, many of which were ultimately decided by the United 

States Supreme Court. Mr. Hebert testified before this Subcommittee during last year’s oversight hearings on the Voting 

Rights Act. We welcome you back here this morning, Mr. Hebert. 

Our second witness will be Mr. Roger Clegg. Mr. Clegg also testified before us last fall. He is the President and CEO for the Center 

for Equal Opportunity, where he specializes in civil rights, immigration, and bilingual education issues. Mr. Clegg is also a contributing editor at National Review Online and writes frequently for 

USA Today, The Weekly Standard, the Legal Times, and other 

9

periodicals and law journals. Prior to his work at CEO, Mr. Clegg 

held a number of positions at the U.S. Department of Justice between years 1982 and 1993, including that of assistant to the Solicitor General. Welcome back here this morning, Mr. Clegg. 

And our third and final witness this morning will be Debo 

Adegbile. Mr. Adegbile is the Associate Director of Litigation at the 

NAACP Legal Defense and Educational Fund Incorporated, where 

he works with the director of litigation to oversee the organization’s 

legal program while remaining actively engaged in voting rights 

litigation and advocacy. Previously, Mr. Adegbile was an assistant 

counsel at LDF, where he litigated voter rights cases on behalf of 

African-Americans and other underserved communities. Between 

1994 and 2001, he was an associate at the law firm of Paul, Weiss, 

Rifkind, Wharton & Garrison, where he litigated several commercial and civil rights cases. More recently, Mr. Adegbile served as 

a coordinator of the National Nonpartisan Election Protection Program during the 2004 elections. We welcome you here this morning, Mr. Adegbile. 

For those who haven’t testified, and that’s only, I think, one, before this Committee, so the other two are quite familiar with this, 

we have what’s called a 5-minute rule. There’s a clock right there 

in front of you, a light system, actually. The green light will be on 

for 4 minutes, the yellow light will come on letting you know you 

have 1 minute to kind of wrap up, and the red light will come on 

and that means your time is up. We won’t gavel you down immediately, but we’d like you to try to end as close to the red light as 

possible. 

And it’s the practice of this Committee to swear in all witnesses 

appearing before it. So if you wouldn’t mind standing and raising 

your right hands. 

[Witnesses sworn.] 

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

We’ll now begin with our first witness. Mr. Hebert, you’re recognized for 5 minutes. 

TESTIMONY OF J. GERALD HEBERT, FORMER ACTING CHIEF, 

CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE 

Mr. HEBERT. Thank you, Mr. Chairman. And thank you, Members of the Committee, for the opportunity to speak to you today 

about what is considered to be the strongest and most effective 

piece of civil rights legislation ever enacted in the history of our 

country, the Voting Rights Act, which many consider to be the 

crown jewel of civil rights. 

I previously appeared before the Subcommittee, as you said, last 

October, Mr. Chairman, and at that time focused my comments on 

the bailout provisions. I would simply add that I’m pleased to see 

that the bill, H.R. 9, makes no substantive changes in the bailout 

provisions. I think they’re a good fit. I think they’re easy to prove 

for jurisdictions that are not engaged in voting discrimination. I’m 

pleased to see that was left intact. 

Before getting to some comments about the bill itself, I want to 

take just a few minutes to make some preliminary comments about 

the coverage formula that’s been a part of the Voting Rights Act 

since its inception. The coverage formula is important, of course, 

10

because it dictates which jurisdictions are going to be subject to the 

special provisions of the act. 

H.R. 9 makes no changes in the coverage formula. To be sure, 

the constitutionality of all the act’s special remedial provisions 

hinges on the coverage formula, so it’s clearly an important issue. 

Because the City of Boerne case from the Supreme Court is now 10 

years old and the composition of the Court has changed since that 

time, no one can safely predict, of course, how the Court will consider an attack on the constitutionality of the act, which is surely 

to come based on the coverage formula that some have claimed is 

outdated. I think it will help those of us who intend to defend the 

act’s constitutionality in the future against attacks from groups, including Mr. Clegg’s, to be able to point to the reasons Congress decided that the continuing problems of voting discrimination warrants the extension of the acts special provisions. 

The record assembled by this Committee—and I’m pained to 

admit that I’ve read nearly all of it I believe is an impressive one. 

But what it really shows and what should be troubling to all of us 

is that the engine of voting discrimination runs on. And this Committee has done an excellent job at developing a record to show 

that the special provisions still remain a good fit to the discrimination in voting that is taking place. 

And I think that’s consistent with the Supreme Court’s admonition in the City of Boerne case that there must be congruence and 

proportionality—and that’s the quote from the Supreme Court—between the injury that you’re trying to prevent or remedy and the 

means that you’re adopting to that end. The fact that—the 

preclearance provisions in particular have blocked acts of intentional discrimination. 

Now, I had occasion to read Mr. Clegg’s testimony before today 

and I note that one thing that he has said is that a lot of the discrimination is anecdotal and not necessarily proof of intentional 

discrimination. I would submit to you that he is either unaware of 

a lot of what is in the record or that he doesn’t understand what 

constitutes intentional discrimination. 

I recall, for example, the numerous instances in the lengthy reports submitted by the Lawyers Committee for Civil Rights detailing intentional discrimination against minority voters. One of those 

examples, actually out of Alabama, involved the City of Foley. I 

represented a group of Black voters who wanted to become annexed 

into the city. Their children were drinking—the drinking water in 

their homes was contaminated because the septic tanks that they 

had outside their homes were leaking into the drinking water. 

They wanted to be annexed so they could be part of the city’s services and get clean water and sewer services and streetlights and 

fire hydrants and all the rest. The city refused to annex them. And 

the Justice Department actually blocked some annexations on the 

grounds that they were allowing White people into the City of 

Foley to be annexed but were not extending the equal rights to 

Blacks. 

I represented that group of people after I left the Justice Department, and we sued the City of Foley. And make no mistake, the 

decision to try to keep those people out was intentionally based on 

racial discrimination. They didn’t want that group of people voting 

11

in their elections. It had more to do with their opportunity to participate in the political process and bring about things that really 

affected their daily lives more than it did anything else. 

And so I think that, you know, that example is in the record. But 

the Voting Rights Act ended up bringing about a solution to that 

problem. I’m happy to say that those people are a part of that town 

today and are getting the city’s services that they deserve. 

I know that my time is running out, so lastly, let me just make 

a couple of observations about some of the other provisions. 

The one provision that I am opposed to in the bill is to adding 

a provision that precludes judicial review of the Attorney General’s 

decision to certify Federal observers in a covered jurisdiction. I 

think that there ought to be occasions when we not only could review the decision about whether the Attorney General has placed 

observers in a certain area, but also to review the Attorney General’s decisions to preclear certain things. That’s a case, Morris v. 

Gressette, which presently precludes judicial review of the Attorney 

General’s decision to preclear, and I think that’s a provision that 

many of us in the voting rights bar would also like to see included 

in the bill. I understand that one horse can only carry so much baggage, but it is something that has been a growing concern to us, 

especially as we review the decisions by this Administration under 

the Voting Rights Act. 

Thank you very much, Mr. Chairman. 

[The prepared statement of Mr. Hebert follows:]

PREPARED STATEMENT OF J. GERALD HEBERT

Mr. Chairman, Mr. Vice Chairman, and distinguished Members of this Committee. Thank you for inviting me to testify before you today on a piece of legislation 

that has proven to be the strongest and most effective piece of civil rights legislation 

in our Nation’s history: the Voting Rights Act. 

I previously appeared before the Subcommittee last October and at that time focused my comments on the bailout provisions of the Act. Today, I will focus my comments this morning on a few key provisions of the proposed bill that has been circulated for discussion and has been shared with me by the Subcommittee staff. I 

also will briefly touch on a few other issues as they relate to reauthorization of the 

Act. 

Before getting to the bill itself, however, I want to take a few moments to talk 

about the coverage formula that has been a part of the Voting Rights Act since its 

inception. The coverage formula is important because it dictates which jurisdictions 

are subject to the Act’s special provisions. 

As I read the proposed bill, the coverage formula determinations remain as they 

were. Even though the Supreme Court has upheld the Act against constitutional 

challenge on two occasions (1966 and 1980), much time has passed not only since 

the original Act was passed but also since the constitutionality of the Act has been 

revisited. On several occasions since 1980, the Court has decided voting rights cases 

assuming its constitutionality. 

In 1997, the Supreme Court struck down as unconstitutional the Religious Freedom Restoration Act, finding that Congress had exceeded its enforcement power 

under the Fourteenth Amendment. City of Boerne v. Flores, 521 U.S. 507 (1997). 

The Court’s opinion in Boerne cited and quoted with approval passages from its earlier 1966 decision upholding the constitutionality of the Voting Rights Act in South 

Carolina v. Katzenbach, 383 U.S. 301, 326 (1966). The Court in Boerne actually 

seemed to reiterate its earlier reasons for upholding the Voting Rights Act in the 

Katzenbach case and distinguishing the Voting Rights Act from the unconstitutional 

Religious Freedom Restoration Act. Thus, many have assumed since that time that 

the Court’s Boerne decision points toward why the Court continues to view the Voting Rights Act as constitutional today. I think the record that this Committee has 

assembled shows quite convincingly that the engine of racial discrimination runs on 

and the need for the special provisions continues. 

12

1 John R. Dunne, Objection Letter, July 20, 1992.

The coverage formula issue is straightforward. According to the Supreme Court, 

Congress’s enforcement power under the Civil War Amendments extends only to enacting legislation that enforces those Amendments. City of Boerne v. Flores, supra.

The Court has described this power as ‘‘remedial’’. South Carolina v. Katzenbach, 

supra, at 326. The Court has cautioned that Congress lacks the power to decree the 

substance of those Amendments. In other words, Congress has the power to enforce, 

not the power to determine what constitutes a constitutional violation. City of 

Boerne, supra, at 519. 

The proposed legislation that I have reviewed makes no changes in the coverage 

formula. To be sure, the constitutionality of all of the Act’s special remedial provisions hinges on the coverage formula, so it is clearly an important issue. And because City of Boerne is now nearly ten years old and the composition of the Court 

has changed, no one can safely predict how the Court will view the constitutionality 

of an Act based on a coverage formula that many consider outdated. 

Congress has developed a detailed factual record that supports the reauthorization of the special provisions. This Committee has been doing a terrific job of gathering this information over the past year and I commend this Committee for doing 

so. I think it will help those of us who intend to defend the Act’s constitutionality 

in the future against attacks from Mr. Clegg and his group to be able to point to 

the reasons Congress decided that the continuing problems of discriminatory voting 

practices warrants an extension of the Act. Congress’s approach to studying the current conditions in the covered jurisdictions to insure that the Act still continues to 

be a good fit to voter discrimination is consistent with the admonition in City of 

Boerne that ‘‘[t]here must be congruence and proportionality between the injury to 

be prevented or remedied and the means adopted to that end.’’ Boerne, supra, at 

520. 

Mr. Clegg (p.7) complains that the record developed by congress is anecdotal and 

doesn’t involve much intentional discrimination. He is apparently unaware of a lot 

of the information that has been developed or he doesn’t understand what constitutes intentional discrimination. 

I recall for example that there were numerous instances cited in the lengthy report of the Lawyers’ Committee for Civil Rights Under Law (which is already a part 

of the official record before this committee) detailing discrimination against minority 

voters. For example, former Justice Department official Robert Kengle reported that 

in Georgia, the Justice Department interposed several method-of-election objections 

where local governments ‘‘attempted to add at-large seats to single-member district 

plans under circumstances that strongly suggested a discriminatory purpose.’’ Mr. 

Kengle’s analysis noted by way of example the July 1992 objection to the Effingham 

County Commission’s attempt to change the county’s then-existing five-member single-member district plan (which had been adopted in response to a vote dilution 

lawsuit) to a mixed plan with five single-member districts and an at-large chair to 

be elected with a majority vote requirement. The Justice Department objected to the 

change stating:

Under the proposed election system, the chairperson would be elected as a designated position by countywide election with a majority vote requirement. In the 

context of the racial bloc voting which pertains in Effingham County, the opportunity that currently exists for black voters to elect the commissioner who will 

serve as chairperson would be negated. Moreover, it appears that these results were anticipated by those responsible for enactment of the proposed legislation. The proposed change to an at-large chairperson followed the elimination of the position of vice-chairperson, which had 

been held by a black commissioner since 1987. Although we have been 

advised that the proposed system was adopted in order to avoid the 

possibility of tie votes in the selection of the chairperson and for other 

proposals before the board, this rationale appears tenuous since the 

change to an even number of commissioners would invite tie votes to 

a greater extent than the existing system.1

Mr. Chairman and members of the Committee, this was not ancient history. It 

was a little more than a decade ago, and well after the Supreme Court and Congress had observed the potential for diluting minority voting strength in racially polarized elections that such changes could produce. The various devices proposed in 

combination in Effingham County (numbered posts, majority vote requirement and 

at-large elections) have each been cited by the Supreme Court and the Congress as 

devices that enhance the opportunity for racial discrimination to occur in the elecVerDate 0ct 09 2002 14:48 Jun 29, 2006 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 G:\WORK\CONST\050406A\27334.000 HJUD1 PsN: 27334
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toral process. So when Mr. Clegg says there is little evidence of intentional discrimination and that the discrimination detailed in the congressional record is largely anecdotal, I respectfully disagree. 

It is also important Mr. Chairman, that a number of objections interposed under 

Section 5 have been interposed to changes that had been illegally implemented (i.e., 

without Section 5 preclearance) for years, or even decades. Some changes finally 

were submitted only as the result of litigation; in other cases, it appears that the 

unprecleared changes were detected by DOJ during the Section 5 review of other 

changes (such as annexations) that were later submitted by the jurisdiction. The 

utter failure to make a Section 5 submission of an objectionable change, when such 

changes have been known for years to increase the potential for racial discrimination in the political process, strongly suggests that deliberate racially discriminatory 

conduct is at work. 

It is critical to recognize that in this day and age, evidence of intentional discrimination must often be gleaned from circumstantial evidence. That is because state 

and local officials largely avoid making overt public statements of racial animus. 

The point here is that Congress is entitled to look at the record it has developed 

and draw reasonable inferences that intentional discrimination continues to occur, 

and I think the record developed to date proves that it does. Drawing inferences of 

intentional discrimination from objective facts is hardly new. Indeed, the Supreme 

Court itself draws such inferences of intentional discrimination, largely utilizing the 

factors laid out in the Arlington Heights case to decide whether intentional discrimination may be inferred from certain actions of government officials. 

Lastly, a couple of observations about some other provisions of the bill. I believe 

Congress was correct in not changing the bailout provisions. I am opposed to the 

adding of a provision that precludes any judicial review of the Attorney General’s 

decision to certify federal observers in a covered jurisdiction. I believe that in some 

instances in 2004, decisions were made at the Department of Justice to send federal 

officials and observers to jurisdictions based more on political considerations than 

racial considerations. For this same reason, I would also like to go on record as supporting legislation that overrules the Supreme Court’s decision in Morris v. Gressette

and would permit judicial review in extreme cases of decisions made by the Attorney 

General to grant preclearance to a voting change. I offer these observations because 

I have seen the Department of Justice’s enforcement of the Voting Rights Act subject to increased manipulation by political appointees for partisan purposes. The recent revelations about the Texas re-redistricting and how the preclearance process 

got corrupted within the Department of Justice—and there are other examples—illustrate the need for this judicial review. I would, however, reserve it for extreme 

cases.

Mr. CHABOT. Thank you very much. 

Mr. Clegg, you are recognized for 5 minutes. 

TESTIMONY OF ROGER CLEGG, PRESIDENT AND GENERAL 

COUNSEL, CENTER FOR EQUAL OPPORTUNITY 

Mr. CLEGG. Thank you, Mr. Chairman, for the opportunity to testify this morning before the Subcommittee. My name is Roger 

Clegg and I am president and general counsel of the Center for 

Equal Opportunity. I should also note, as you did, that I was a deputy in the Department of Justice’s Civil Rights Division for 4 years, 

from 1987 to 1991. 

The draft bill about which I’ve been asked to testify this morning 

is bad policy, basically from beginning to end, and unconstitutional 

in many different ways, to boot. 

Let me begin, though, by quoting something to you: 

‘‘And today, in the American South, in—in 1965, there was less 

than a hundred elected Black officials. Today, there are several 

thousand. The Voting Rights Act of 1965 has literally transformed 

not just southern politics, but American politics. 

‘‘Well, I think during the past 25 years, you have seen a maturity 

on the part of the electorate and on the part of many candidates. . . . So there has been a transformation. It’s a different 

14

state, it’s a different political climate, it’s a different political environment. It’s a different world that we live in, really. . . . 

‘‘The state is not the same state it was. It’s not the same state 

that it was in 1965 or in 1975, or even in 1980 or 1990. We have 

changed. We’ve come a great distance. . . . [I]t’s not just in Georgia, but in the American South, I think people are preparing to lay 

down the burden of race.’’

That’s not me speaking, that’s John Lewis, in a sworn deposition 

in the Georgia v. Ashcroft litigation. 

Justice O’Connor found that testimony credible. Let me read how 

she concluded her opinion for the Supreme Court in that case: 

‘‘The purpose of the Voting Rights Act is to prevent discrimination in the exercise of the electoral franchise and to foster our 

transformation to a society that is no longer fixated on race. . . . 

As Congressman Lewis stated: ‘I think that’s what the [civil rights] 

struggle was all about, to create what I like to call a truly interracial democracy in the South. In the movement, we would call it 

creating the beloved community, an all-inclusive community, where 

we would be able to forget about race and color and see people as 

people, as human beings, just as citizens.’ ’’ Justice O’Connor concluded: ‘‘While courts and the Department of Justice should be vigilant in ensuring that States neither reduce the effective exercise of 

the electoral franchise nor discriminate against minority voters, the 

Voting Rights Act, as properly interpreted, should encourage the 

transition to a society where race no longer matters: a society 

where integration and color-blindness are not just qualities to be 

proud of, but are simple facts of life.’’

But the bill that you are considering today will ignore what John 

Lewis said about the changes in the South and will continue indefinitely the preclearance provisions of section 5. 

And it would explicitly overturn Justice O’Connor’s decision in 

Georgia v. Ashcroft. 

And it would also ignore the warning that Justice Scalia gave in 

Bossier Parish II about the limits of Congress’s authority, and overturn that decision. 

And, at a time when we are struggling with the issue of immigration, and when the one thing that everybody ought to be able 

to agree on is that we need to focus more attention on how to make 

sure that those coming to our country can become integrated into 

our society, that we strengthen the social glue holding that society 

together, and that all of us be able at least to communicate with 

one another, this bill would tell immigrants, hey, if you can’t speak 

English, no problem, Congress will even force local governments to 

print ballots in foreign languages. 

This bill is bad for those immigrants because it says that you can 

be a full participant in American democracy without knowing 

English—which is a lie. This bill is bad for all Americans because 

it perpetuates the racial gerrymandering and racial segregation 

that is now an inextricable byproduct of the section 5 preclearance 

process. In fact, the bill makes that process worse by overturning 

Bossier Parish and Georgia v. Ashcroft. 

All of this is bad policy and it is also unconstitutional. Sometimes 

the bill exceeds Congress’s authority because it has no plausible 

15

record basis in enforcing the Constitution’s ban on intentional racial discrimination in voting. 

And sometimes it violates principles of federalism. 

And sometimes it actually turns the Constitution on its head and 

tries to guarantee racial gerrymandering and racial segregation. 

I’m not happy to say this, Mr. Chairman, but I believe I must. 

What I’m afraid has happened is that Democratic Representatives—that’s capital ‘‘D’’ Democratic Representatives—are afraid in 

this area to do anything that might offend some minority incumbents and some of their minority constituents. Their Republican 

counterparts are afraid to be called racist by various demagogues 

and interest groups. And both parties, especially Republicans, are 

politically happy with segregated districts and uncompetitive contests. 

I hope that there will be enough Representatives and Senators, 

or a President, out there who take seriously their oaths to the Constitution, who are willing to stand up to those who will call anyone 

a racist who stands in the way of their liberal agenda, and who will 

not let short-sighted political calculations tempt them from constitutional principle and the principle of nondiscrimination and 

nonsegregation. 

Thank you. 

[The prepared statement of Mr. Clegg follows:]

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PREPARED STATEMENT OF ROGER CLEGG


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Mr. CHABOT. Thank you. 

Mr. Adegbile, you’re recognized for 5 minutes. 

TESTIMONY OF DEBO ADEGBILE, ASSOCIATE DIRECTOR OF 

LITIGATION, NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC. 

Mr. ADEGBILE. Good morning, Chairman Chabot, Ranking Member Conyers, Congressmen—or I should say Congresspeople Watt, 

Scott, Sa ́nchez, Van Hollen, Franks. It’s a great pleasure to be with 

you this morning to speak on the topic of H.R. 9. 

Today I will speak very briefly to three topics: The proposed 

modification to section 5 to address the second of the Supreme 

Court’s Bossier decisions; the proposed modification to section 5 to 

address aspects of the Supreme Court’s ruling in Georgia v. 

Ashcroft; and the congressional power to renew the expiring provisions of the VRA under its enforcement powers under the 14th and 

15th amendments. 

With respect to the Bossier II modification, I think it’s very important to note that in a very complex area of law the problem with 

Bossier Parish II is very understandable to everybody whether they 

be a lawyer or not, a representative or not. The problem is that the 

Voting Rights Act was clearly intended to stop discrimination in 

voting. It was most certainly intended to stop intentional discrimination in voting, and it was a long history of intentional discrimination that gave rise to the Voting Rights Act. Section 5 in particular was a special provision designed to stop entrenched discrimination and persistent efforts to circumvent court orders. 

To the extent that Bossier II requires section 5 to allow evidence 

of intentional discrimination to go forward and not turn back voting changes, it is nonsensical, it is inconsistent with congressional 

intent, and it is appropriate for the Congress to move swiftly to address that case. 

There’s another point I would like to make about the Bossier II

case, and that point is important as well. There is a tendency for 

those who oppose the very effective provisions of the Voting Rights 

Act to try and suggest that every single issue rises to constitutional 

importance. Congress has the power to enact the Voting Rights Act. 

We know that because the Supreme Court has told us on many occasions over the course of decades. The fix to Bossier II is statutory 

in nature. It does not rise to constitutional moment, and this body 

has the power to fix that statute, to stop intentional discrimination 

in the section 5 preclearance process so that the burden will not 

be foisted upon individuals in communities, often without resources 

and access to voting experts, to institute costly litigation to stop 

discrimination. 

Turning to Georgia v. Ashcroft. That case was a break with longstanding precedent that had elevated the ability of minority voters 

to elect candidates of their choice. And when I say candidates of 

their choosing, I do not mean only African-American candidates or 

Latino candidates—candidates who the minority communities 

choose to serve them in this body and in State and local bodies. 

That ability-to-elect standard was very important in the context of 

section 5. It was important because there were many intentional efVerDate 0ct 09 2002 14:48 Jun 29, 2006 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6601 G:\WORK\CONST\050406A\27334.000 HJUD1 PsN: 27334
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forts to limit the ability of minority communities to participate 

equally in the political process. 

In a winner-take-all game, which is the way our election system 

is structured, it’s very important to be able to have your voices represented. The ability-to-elect standard has done that effectively. 

And if one reads Georgia v. Ashcroft carefully, the Supreme Court 

recognizes that the ability-to-elect standard is important, because 

they don’t discard it altogether. However, they give legislatures too 

much leeway. They give legislatures the opportunity to choose a 

course of action, to pursue influence, which is an ill-defined concept. Everybody understands in common parlance that it’s important to have influence in a political situation. But what we have 

found in light of racially polarized voting patterns, which persist in 

many of the covered jurisdictions, is that often influence alone is 

not enough, and influence is easy to hide behind. And this is one 

of the real harms that Georgia v. Ashcroft could bring to section 5. 

It’s easy to advance influence as a theory by which to cloak intentional vote dilution and discrimination. That is the danger. We 

haven’t seen the full expression of that danger yet, because Georgia 

v. Ashcroft, as this distinguished panel knows, was decided late in 

the redistricting cycle. If Georgia v. Ashcroft is not corrected, as 

this bill intends to, it could lead to a very substantial undermining 

of the power of minority communities to have their voices heard in 

legislatures. 

I want to touch just briefly in my remaining time on the congressional power to enact these renewal provisions. It’s very important 

to note that both the 14th and 15th amendments are sources of 

power for Congress to act. The Supreme Court has repeatedly—and 

I said this already—but repeatedly, over many decades, upheld 

Congress’s power to establish section 5, and the Voting Rights Act’s 

provisions, and has done so after the case of Boerne v. Flores, 

which many throw up as a limit on congressional power in the context of voting. 

To be sure, Boerne and its progeny tell us to look at the record 

carefully. It directs this body to be careful in its fact-finding. But 

this body continues to be the body that is best suited to make that 

fact-finding. I think that the record is very well-established. I don’t 

have time to go into all of the examples. 

But I look forward to addressing any questions that the panel 

may have. I appreciate this opportunity. 

[The prepared statement of Mr. Adegbile follows:]

40

PREPARED STATEMENT OF DEBO P. ADEGBILE


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Mr. CHABOT. Thank you very much. 

The Members of the panel up here now each have 5 minutes to 

ask questions of the witnesses, and I’ll begin with myself and I recognize myself for 5 minutes for that purpose. 

Mr. Hebert, I’ll begin with you, if I can. How administrable is the 

standard established by the Supreme Court in Georgia v. Ashcroft

and how does it deviate from the standard set by the Supreme 

Court in 1976 in Beer v. United States, which was the standard followed by the Court for nearly 30 years? 

Mr. HEBERT. Well, Beer was a case that said that the effects 

prong of section 5 was to be measured by whether or not the proposed change retrogresses minority voting strength. Georgia v. 

Ashcroft did take a different approach to looking at retrogression 

in the context of a proposed redistricting plan. In Georgia v. 

Ashcroft the Supreme Court, and I agree with Mr. Adegbile that 

they have attempted to give States more leeway, in a sense, by saying that no longer will you be bound to simply look at the number 

of minority controlled districts you had before and compare it to 

the number of minority controlled districts you have afterwards 

and if there are less in the afterwards, then that retrogresses minority voting strength. That seemed to be a fairly bright-line test 

before—you looked at the number of effective minority districts 

that minority were electing candidates of their choice, and then you 

compared the proposed plan and measured them up. 

In Georgia v. Ashcroft, the Supreme Court said there are really 

three types of districts that should be in the calculus. There are 

majority-minority districts; there are so-called coalition districts, 

where minorities aren’t a controlling majority by themselves but 

maybe operate in coalition with some other group, some other minority group or perhaps Anglos, to elect a candidate of their choice; 

and influence districts. And that you can really look at the totality 

of the plan before and see how many of those categories of districts 

you have and how many you see in the new plan in those categories. And if overall, in the totality of circumstances, there’s been 

no retrogression, then the plan should be precleared. 

There was an important fact in Georgia v. Ashcroft, which is that 

nearly all of the minority legislators in the Georgia legislature 

agreed with the plan to actually reduce down the percentages of 

some of the more heavily Black districts downward, where they 

still felt they could have effective control, and so the Supreme 

Court credited that testimony as well. 

I think, you know, that’s a long answer to a short question, but 

it’s really—the fact is that it did change the playing field, as the 

dissent pointed out in Georgia v. Ashcroft, by really taking what 

was previously a bright-line test and really replacing it with something that would be more difficult to administer by the Justice Department or the D.C. court, which is looking at the totality of circumstances test. 

Mr. CHABOT. Thank you. Let me follow up my next question with 

you as well, and then I’d invite any of the other panel members to 

answer as well. 

H.R. 9 restores the discriminatory purpose standard to section 5 

such that any voting change made with a discriminatory purpose 

cannot be precleared under section 5. What impact will this change 

57

have on minority voters, and how difficult will it be for the Department of Justice or the United States District Court for the District 

of Columbia to administer? And does the change impose any additional burdens on covered jurisdictions? Is this intent more or less 

consistent with the way the standard was interpreted and applied 

prior to 2000? 

Mr. HEBERT. Well, the answer to, certainly, the last part of the 

question is it definitely restores the law as it existed prior to Bossier II. Bossier II represents, I think, really, the low-water mark for 

Supreme Court activity in the civil rights area, in a sense, because 

what it said was that they would reinterpret the statute to allow 

a jurisdiction that engages in unconstitutional discrimination in 

voting and develop a plan around that unconstitutional discrimination, and they could still get preclearance under the Voting Rights 

Act, a statute that was enacted to further the purposes of the 14th 

and 15th amendments. Many of us were really stunned that the 

Court could really rewrite the statute, which is what it did, and 

limit it in that way. 

The Supreme Court has since at least the mid-1970’s laid out a 

road map, and the Justice Department followed this for years and 

years, and still does in many cases, about how to take the circumstantial evidence of intent and draw inferences of purposeful 

discrimination out of it. It’s called the factors that come out of the 

Village of Arlington Heights case back in 1977, and there are factors that you can actually take into account and say, look, based 

on what happened here—the context, the events that led up to the 

decision, the effect of the decision, whether they followed normal 

procedures, and so on—you can look at all of that and then draw 

an inference about whether or not intentional discrimination 

played a role. 

The Justice Department has, and the Supreme Court, too, those 

two branches of Government have for years been using that approach to prove discrimination. It would really not add much burden on the States to have to show that, in my view. They’d been 

able to work under that standard from 1965 to 2000. And, you 

know, for the most part, the Justice Department followed Supreme 

Court precedent in its interpretation. 

Mr. CHABOT. Thank you. If other witnesses would like to answer, 

they can—or not. 

Mr. CLEGG. Well, just briefly, Mr. Chairman. On the question 

you asked about whether the approach taken by Justice O’Connor 

in her opinion in Georgia v. Ashcroft would be more difficult to administer than what Mr. Hebert has called the bright-line approach 

that he favors, I suppose it’s true that an approach that mechanically invokes quotas and racial gerrymandering is very easy to administer. It’s very automatic. You don’t have to consider all the 

other nuances and factors that Justice O’Connor thought ought to 

be included. 

But ease of administration is not the only thing that we ought 

to be concerned about. And I think that that’s what concerned Justice O’Connor, that the automatic approach of saying that, well, if 

you can draw a majority-minority district, you’ve got to do that, is 

easy to administer, but it’s not consistent with the ideals of the 

Voting Rights Act. 

58

With respect to the Bossier Parish II issue, I agree with Mr. 

Hebert that there are a lot of things that go into the inquiry about 

whether purposeful racial discrimination has occurred. I don’t 

think that we disagree about that. The question is whether section 

5 should be interpreted to allow the Justice Department to refuse 

to preclear a change that is not retrogressive. And I think that Justice Scalia was right when he said that that was not the purpose, 

has never been the purpose of section 5, and that—if you were to 

interpret this that way, and this is what he said, that it would create real constitutional problems. 

Mr. CHABOT. Thank you very much. 

Mr. Adegbile? 

Mr. ADEGBILE. First, with respect to the question about Georgia 

v. Ashcroft, it’s very clear that the Supreme Court’s decision will 

make the administration of section 5 much more difficult. Justice 

Souter did an able job in the dissent in that case in pointing out 

that the Court had given no guidance as to how to compare the 

tradeoffs which it contemplates. Under section 5, DOJ or a reviewing court begins with the status quo. They don’t take the standard 

from the air. They look to see what are the circumstances under 

which minority voters find themselves at present? And then they 

examine the voting change to see whether the voting change is 

worsening the position of minority voters. 

When you have influence in the mix, it becomes very hard to understand what the benchmark is. How many opportunity-to-elect 

districts are equal to a so-called influence district? How many influence districts do you have to put in place if you take away a coalition district? The analysis gets very complicated and the statute 

will start to collapse of its own weight—which I hope was not the 

Court’s intention, but I think that it’s very important for this body 

to move to restore the clearer standard of the ability-to-elect that 

is reflected in H.R. 9. 

With respect to Bossier Parish II, the language in the bill clearly 

goes back to the pre-Bossier II standard. And it just simply does 

not make sense for DOJ or a court to have to turn a blind eye in 

a section 5 context to evidence of intentional discrimination. I 

mean, it’s particularly disturbing, because we hear under the 

Boerne case and its progeny that it’s very important to look to incidents of intentional discrimination. Well, I’m here to tell you that 

without section 5’s protections and without this restoration, there 

will be more of those incidents that go completely undetected because there are not the resources or wherewithal to turn them 

aside. Section 5 is very effective in doing that and it’s entirely consistent with the purposes of the Voting Rights Act, and I believe 

Congress’s intent, to fix that case. 

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

The gentleman for Michigan, Mr. Conyers, is recognized for 5 

minutes. 

Mr. CONYERS. Thank you, Mr. Chairman. 

I wanted to ensure our friend Mr. Clegg that John Lewis is— we’re trying to get him to the hearings so that he can help you be 

more comfortable in your bed at night to find out that John Lewis 

is a full supporter of this bill—as a matter of fact, he’s a cosponsor—and has been working with us on it. He would be probably as 

59

surprised as myself to find out that he is now being quoted as a 

reason not to be supportive of the bill. So I’m hoping he can get 

here from his other Committee assignment to join us here, because 

I’ve talked to him many times and I’m sure he’ll be able to speak 

better to his quotation that you made than I can. 

Mr. CLEGG. Well, actually, he would not be surprised because 

I’ve done the same thing in the past when we’ve appeared on a 

panel together. So—— Mr. CONYERS. He’s used to you saying that? 

Mr. HEBERT. He’s used to—— [Laughter.] 

Mr. CONYERS. Oh, okay. Well, then, I—— Mr. CLEGG. He’s used to hearing those words quoted. And of 

course, in his own testimony before the Subcommittee, he was at 

great pains to——

Mr. CONYERS. Yeah. Did he help straighten you out? That didn’t 

make any impression upon you, I presume. 

Mr. CLEGG. Well, look——

Mr. CONYERS. Well, if he’s already been—— Mr. CLEGG [continuing]. Mr. Conyers, he——

Mr. CONYERS. Look, if he’s already——

Mr. CLEGG. That’s what he said. 

Mr. CONYERS [continuing]. Denied it and you still insist on 

quoting him, then there’s no point in my going any further on it. 

I’ve only got 4 minutes left. 

Mr. CLEGG. He doesn’t deny the accuracy of the quotation. 

Mr. CONYERS. Well, I’m sure. 

Let me go somewhere else here now. Section 203. Now, the notion that we’re encouraging people who are newly sworn-in citizens 

not to continue to improve in English is an important consideration. And for me, it’s a sensitive one because we’ve already heard 

from a number of Members of Congress on this who have some reservations. And we know that immigration is a huge issue. 

So I wanted to ask Mr. Adegbile whether or not we can get 

through this particular time situation and continue to have language assistance where needed, in view of the record that’s been 

compiled that shows that it is not particularly expensive and 

doesn’t seem to put out election workers at all. 

Mr. ADEGBILE. Thank you for that question, Congressman Conyers. Section 203 is a critical aspect of the Voting Rights Act. It 

was part of the evolution of Congress’s understanding about our democracy and the barriers to that democracy. It’s a provision that 

applies only to citizens—only to citizens—and many people try to 

distort the record on that issue. 

People who receive 203 assistance at the polls are people who 

pay taxes, they are people who serve in wars, they are people in 

our communities, and they deserve a say in the political process. 

It is simply nonsensical to suggest that somebody is going to make 

a decision about whether or not they are able to learn and speak 

English because of a rule that allows them to have translated materials in voting. I don’t think that anybody seriously posits that 

argument. And if folks say it, I think it’s a cynical argument. 

The NAACP Legal Defense Fund supports 203 language assistance because we recognize that barriers to voting affect many different types of citizens and that we don’t enrich the democracy by 

60

saying some citizens can have access and others cannot. I am 

aware of some of the testimony that will be presented this afternoon. It will go in detail to these issues. And I think that the 

record on 203 that’s before Congress now and continuing to be established will be at least as strong as the record that has been presented at previous renewals of the Voting Rights Act. 

Mr. CONYERS. Thank you. 

Mr. Hebert, have you any thoughts about that? Because to me, 

this is the one sensitive issue that I see standing in front of us. I 

think we’re moving in a quite uniform way. We’ve kept in touch 

with our legislative counterparts in the other body. But in this era 

of immigration emotionalism, their marches and so forth, I want to 

get from both of you the best suggestions as to how we move to resolve this issue as expeditiously and effectively as we can. 

Mr. CHABOT. The gentleman’s time has expired, but the witness 

can answer the question. And I would just, again, note that we do 

have a hearing on this at 2 o’clock this afternoon, on section 203. 

But the question has been asked, so it can be answered. 

Mr. HEBERT. Thank you, Mr. Conyers, and Mr. Chairman for allowing me to answer. 

You know, I follow the Justice Department’s enforcement of voting rights laws pretty closely. Since 1999, nearly all of the cases 

the Justice Department has brought in Federal court under the 

Voting Rights Act have been brought to enforce the minority language provisions under 203. Over 90 percent of their cases, and 

quite a number of them. And many of them get settled quickly because the jurisdictions find that the fix, that they are really not 

things that they are falling down on, are fairly easy to do and they 

recognize that they should be done. 

We talk a lot of times about citizenship and people being naturalized and the process and, you know, learning to speak English to 

become a citizen. Well, you know, if a child is born in this country 

and their parents aren’t citizens, but they’re born here, even if 

they’re undocumented people, the parents, the child is a citizen at 

birth. They may grow up in a household that doesn’t speak 

English. When that boy or girl turns 18 years of age and is ready 

to vote, why shouldn’t they be able to go to the vote and get meaningful information to make their vote as effective as mine? Why 

would we deny people that right? In the United States we open our 

hearts and open our minds to people in this country, and that’s 

why we, many argue that we have an immigration problem today, 

because we’ve been too soft. 

But the fact remains that in the area where we’re protecting the 

most fundamental right and trying to ensure that we do exactly 

what Mr. Clegg read, that John Lewis’s vision for America is and 

Justice O’Connor’s vision for America is, to get people included in 

the process, why would we not extend those bilingual provisions as 

we’ve done? 

Mr. CONYERS. Thank you very much. 

Thank you, Mr. Chairman. 

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

The gentleman from Arizona, Mr. Franks, is recognized for 5 

minutes. 

61

Mr. FRANKS. Well, thank you, Mr. Chairman. And thank you, 

members of the panel. 

I know that when we discuss subjects like this, I think it’s perhaps important for us just to back up for a moment and remind 

ourselves, you know, of the simple idea that America is first and 

foremost an ideal, an ideal that all human beings are created equal 

and endowed by their Creator with certain unalienable rights. And 

I think that that is indeed what America’s best gift to the world 

is, to somehow not only maintain that but to see it exported 

throughout the planet. 

Having said that, you know, I’m going to make an admission that 

legislation like this catches some of us without full understanding 

of its overall impact. You know, it’s a fairly esoteric endeavor that 

we face here. But having that desire to see all human beings recognized for the miracles that they are and somehow that we would 

become that color-blind society that cares about people because 

they’re human beings, if we can start there and pursue that with 

our hearts, you know, I think that there is somehow hope for all 

of it. 

Now, what I’d like to do, Mr. Clegg, I’ll start with you, if you 

don’t mind, is the Voting Rights Act has been in place for some 

time and there are going to be some things that are addressing Supreme Court decisions here. And if you can, in practical terms for 

someone who is not an expert, can you help me understand how, 

in practical terms—you know, an election—not so much in an outcome-based circumstance but in the effect of some of the corrections 

or the ways that this bill addresses both the Georgia v. Ashcroft

and the Bossier decisions? How does this affect those decisions and, 

in practical terms, how is it played out? 

Mr. CLEGG. Putting aside questions of constitutionality, the fundamental policy problem that I have with this bill is the fact that 

section 5, unfortunately, has become a powerful engine for the segregation by race of voting districts. And I don’t think that that was 

the original intent of the Voting Rights Act. I don’t think that 

that’s why people marched at Selma. I think that that turns the 

purpose of the Voting Rights Act on its head. And unfortunately, 

that is the single greatest effect now of section 5. And the overruling of Bossier Parish II and particularly the overruling of Georgia v. Ashcroft will exacerbate that problem. 

That’s in a nutshell the most fundamental problem that I have 

with this legislation. 

Mr. FRANKS. Mr. Adegbile, your name has been said a number 

of different ways today and I’m not sure I said it right. So I hope 

you repeat it yourself for all of us. But would you take a crack at 

the same question? 

Mr. ADEGBILE. Sure. And you did indeed pronounce it correctly. 

I apologize to the panel. I don’t know of any translation for that 

particular name, and it always gives me difficulty as well. So I 

thank you for your efforts. 

With respect to the two decisions, I think Bossier II is very simple and I think it’s easy to sort of break it down. Bossier II, as the 

Congress intends to correct the statute, the fix will have the effect 

of making it easier to detect and block some forms of intentional 

62

discrimination in voting. It’s that simple. It’s consistent with the 

intent of the statute, and that’s what it does. 

I can’t really imagine the theory of a constitution or a nation that 

would want to make it harder for those forms of intentional discrimination to get detected and stopped. That’s what Bossier II

does. 

With respect to Georgia v. Ashcroft, we’ve heard Mr. Clegg say 

a number of times that the Georgia v. Ashcroft modification will 

lead to the racial segregation of voters and other things to that effect. There are two important points. One is in my testimony, and 

that is there are many factors that map-makers consider when 

they draw districts. I need not tell these Members that because all 

of you are familiar with the process. But in the first instance, districts are drawn where voters are, where they live. There is residential segregation in the United States of America. It is not because we have the vote and because we have districts. It has its 

roots in the history of discrimination, and it persists to this day. 

So in a system where we draw districts to give voices, local 

voices, an opportunity to participate in the political process, drawing some of those districts around segregated communities that are 

living under those circumstances because of our history of discrimination is not only appropriate, it’s necessary. And the Voting 

Rights Act permits that because, even though minority people very 

often live together, there were people that would try to fragment 

these populations or over-concentrate them to minimize their voices 

in the political process. 

Significantly, there’s also a line of Supreme Court decisions that 

exercises a check on racial gerrymandering, which Mr. Clegg is 

very familiar with. Shaw v. Reno and its progeny limit the ways 

in which race can be used in the redistricting process. Nothing in 

H.R. 9 changes those cases—some may think that the Voting 

Rights Act couldn’t change those cases, since they are constitutionality based. Those limits continue to exist, and that is why the 

modifications suggested don’t lead to racial gerrymandering as Mr. 

Clegg has suggested. 

Mr. FRANKS. I thank the gentleman. My time has expired, Mr. 

Chairman. Thank you. 

Mr. CHABOT. Thank you. 

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

5 minutes. 

Mr. WATT. Thank you, Mr. Chairman. 

Let me start by asking unanimous consent to submit for the 

record the statement of Congressman John Lewis. He anticipated 

that he might not be able to get here today, probably anticipated 

what Mr. Clegg was going to say. 

Mr. CHABOT. Without objection, so ordered. 

Mr. WATT. All right. And having submitted it for the record, let 

me just read specifically what he concludes so that—which is actually not entirely inconsistent. I mean, it reinforces in some respects 

what you said. ‘‘The Voting Rights Act was necessary in 1965, and unfortunately 

it is still necessary today, as the extensive Committee record makes 

clear. We have come a great distance, but we still have a great distance to go before all Americans have free and equal access to the 

63

ballot box. This legislation is among the most important that this 

Congress will consider, and I trust that we will take our responsibility to protect the voting rights of all Americans very seriously as 

we pass this legislation. We must renew the expiring sections of 

the Voting Rights Act in this session of Congress. Thank you.’’

All right, now that we’ve got that square. I guess, if you’ve heard, 

been on panels with John Lewis before and you’ve heard him take 

issue with your interpretation and Justice O’Connor’s interpretation of what he said before, leads me some to question your interpretation and your intent on the rest of this. So let me go straight 

at it. 

I can understand how you can question the constitutionality of 

the statute. The Supreme Court’s already ruled on that, so at least 

you don’t mind taking on either John Lewis or the Supreme Court. 

Mr. CLEGG [continuing]. The constitutionality of this bill. 

Mr. WATT. All right. My question to you is have you read the 

record. Now, Mr. Hebert said he had read the record in, I mean, 

almost 9,000 pages that we’ve developed here. Have you read the 

record? 

Mr. CLEGG. I have——

Mr. WATT. Come on, just tell me whether you have or have not. 

Mr. CLEGG. Yes. I have. I can’t say that I’ve read every word, but 

I’ve looked at every page. 

Mr. WATT. Okay. All right. I got you. So then you might not be 

surprised to find that there are numerous instances in the record 

where we have found that jurisdictions and States have been continuing to engage in discriminatory voting actions. 

Or maybe I should just make this simpler. Are you contending 

for the record that States and jurisdictions are not still engaging 

in efforts to diminish the impact of minority voters? 

Mr. CLEGG. Congressman Watt, of course there are still instances——

Mr. WATT. A yes or no answer might suffice. If you’re contending 

that, I mean, I’d like to know that, or if you’re not contending it. 

Don’t finesse it, though. 

Mr. CLEGG. Congressman Watt, of course I’m not saying that 

there are no instances of discrimination. But what I said in my testimony, in my written testimony, was that I don’t believe that the 

record that you have compiled——

Mr. WATT. Which you haven’t read. 

Mr. CLEGG [continuing]. Justifies—looked at every page. 

Mr. WATT. Okay. 

Mr. CLEGG. And, you know, let’s be fair. You haven’t read every 

word of the testimony either. 

Mr. WATT. I’ve been here for all of it, though. 

Mr. CLEGG. Yeah, but they don’t—the record includes a lot that 

was not spoken, correct? 

Mr. WATT. That’s true. 

Mr. CLEGG. All right. And, you know, you go through page after 

page after page of this testimony——

Mr. WATT. I think we’ve made the point, Mr. Clegg. 

Mr. CLEGG [continuing]. And the same people and——

Mr. WATT. Let me move on to another question. 

64

Mr. CLEGG [continuing]. You know what’s going to be there. And, 

I mean, you know, look, if you don’t want a full answer, that’s fine. 

But that’s not going to help your case in showing that the Subcommittee—— Mr. WATT. No, I think I got a full answer, and in this case you 

seem to be as willing to disregard the intent and what else is going 

on around you as you have been willing to disregard the intent of 

what John Lewis has said over and over and over again, and what 

I said in my opening statement. We are making progress. I don’t 

think anybody would argue with you on that. 

Mr. CLEGG. And my point, Congressman. I’m not trying to mislead anybody. Of course, I know that John Lewis supports this bill. 

He told me that. He has said that for this record. My point in 

quoting him is that his statement about the transformation of the 

American South is completely inconsistent with the reauthorization 

of section 5. And it was relied upon by Justice O’Connor in Georgia 

v. Ashcroft, which this bill would overturn. 

Mr. WATT. That’s exactly right. 

Mr. CLEGG. Okay? So——

Mr. WATT. Because we think that conclusion is inappropriate at 

this point, and I think that’s Congress’s right to think that at this 

point. 

Now, let me——

Mr. CHABOT. The gentleman’s time has expired. Would he like an 

additional minute? 

Mr. WATT. Can I get just 1 additional minute, because I want 

to——

Mr. CHABOT. The gentleman is recognized for 1 minute. 

Mr. WATT [continuing]. Deal with my other two colleagues here, 

Mr. Adegbile and Mr. Hebert. I didn’t want this to become just an 

issue with Mr. Clegg here. 

I mean, Mr. Scott and I have had this conversation before. I’m 

not sure I necessarily agree with you all’s interpretation or the implication of what ability to elect candidates of choice means. Because the ability to elect candidates of choice, as I understand it, 

is not an invitation to protect only majority-minority districts. 

Electing candidates of choice can be candidates from coalition districts, influence districts also. Is that not the case? 

Mr. HEBERT. Yes, it is. It—— Mr. WATT. Okay. That’s all. I just wanted to be clear, because I 

didn’t want to leave the wrong impression, because the Supreme 

Court sometimes picks up, as Mr. Clegg does, the wrong impression 

from these things. I want this to be specific. There is nothing to 

suggest that candidates of choice have to be elected from majorityminority districts. Is that correct? 

Mr. ADEGBILE. I think Georgia v. Ashcroft can be read to suggest 

that nine justices agreed with that statement. 

Mr. WATT. Right. Okay. All right. I just wanted to be clear on 

that. I wanted to clarify the record. 

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. I thank the witnesses for 

testifying. 

65

The evaluation of a district, is there anything in this legislation 

that sets a national standard for ascertaining whether a district is 

one from which a candidate of choice can get elected? It’s been my 

experience that it varies by district. So my question is does the language in Court precedents require a district-specific evaluation to 

ascertain whether or not minority voters have an opportunity to 

elect their choice. Mr. Hebert? 

Mr. HEBERT. No, this bill does not create a national standard to 

that effect. And you’re correct that, even under existing Supreme 

Court precedent, which this bill is consistent with, in my view, the 

opportunity to elect a candidate of your choice, preferred candidate 

of your choice in the district can range from, you know, heavily minority in some instances is necessary to less than 50 percent in 

others. 

Mr. SCOTT. Following up on that, in some coalition districts African-Americans have in fact been elected and candidates of choice 

elected, as the gentleman from North Carolina has indicated. Does 

the language in the bill protect those districts from being dismantled? 

Mr. HEBERT. Yes, it does. 

Mr. SCOTT. Under the language in the bill, so long as an opportunity district is not dismantled, does the language allow dismantling a coalition district adjoining the district, or does a plan which 

keeps the number of opportunity districts equal, but dismantles all 

of the coalition districts, would that plan violate section 5? 

Mr. HEBERT. In my view, it would. 

Mr. SCOTT. You have litigated many of these cases, is that right? 

Mr. HEBERT. Yes, I have. 

Mr. SCOTT. Who pays your legal fees? 

Mr. HEBERT. Sometimes no one. [Laughter.] 

It varies, actually. If I represent a State or local government, the 

State or local government pays. In many instances I have served 

as pro bono counsel for public interest groups. In others, the Democratic Party has paid me. 

Mr. SCOTT. If an area has been victimized by an illegal scheme, 

are there circumstances where they cannot come up with the 

money to get themselves out of that situation? 

Mr. HEBERT. Bringing vote dilution cases, Congressman Scott, is 

a very, very costly enterprise. You need expert witnesses, you need 

skilled lawyers, because the other side is going to lawyer up big 

time, usually. I would estimate that the cost of a vote dilution case, 

to bring a vote dilution case through trial and appeal, runs close 

to a half a million dollars in costs. 

Mr. SCOTT. And much of that, under present law, is not reimbursable? 

Mr. HEBERT. That’s correct. 

Mr. SCOTT. Under the bill, would most of the costs be recoverable? 

Mr. HEBERT. Yes, they would. 

Mr. SCOTT. If you win? 

Mr. HEBERT. If you prevail. 

Mr. SCOTT. Under section 5 preclearance, if there is no 

preclearance, even if a client plan is clearly illegal, if we don’t exVerDate 0ct 09 2002 14:48 Jun 29, 2006 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6601 G:\WORK\CONST\050406A\27334.000 HJUD1 PsN: 27334
66

tend the preclearance provision, if a plan is clearly illegal, what 

would happen until a case could be brought? 

Mr. HEBERT. The discriminatory system would go into effect. Minority voters, presumably, would be harmed. And it might be too 

little too late to even bring a suit if you could muster the resources 

to file it. 

Mr. SCOTT. And if you finally win, is it your experience that the 

person running for reelection would have the advantages of incumbency? 

Mr. HEBERT. Absolutely. 

Mr. SCOTT. So they would benefit during the time when the illegal plan was in effect and continue to benefit because we did not 

extend the preclearance provision. With the preclearance provision, 

the plan never would have gone into effect in the first place, is that 

right? 

Mr. HEBERT. That’s correct. Once it goes into effect, you have a 

sitting incumbent. To get that sitting incumbent out, that would be 

a fruit of the poisonous tree, an advantage that incumbent would 

have against a challenger. 

Mr. SCOTT. Mr. Hebert, you’ve represented people in bailout 

cases. For those who have not discriminated in the last 10 years, 

is there any problem with bailing out? 

Mr. HEBERT. No. No, it’s just really the only problem with bailing 

out is more people should know about it. 

Mr. SCOTT. Well, is it not a fact that some areas, for race relations purposes, would prefer just not to bail out so that, as they 

change election laws, the entire community would know that nobody’s being discriminated against? 

Mr. HEBERT. That’s true. A lot of jurisdictions like section 5 

preclearance and like to get a stamp of approval from the Justice 

Department that their voting system is non-retrogressive. And I’ve 

heard a number of officials say that. 

Mr. SCOTT. My time’s up. 

Mr. CHABOT. The gentleman yields back his time. 

The gentleman from Iowa I know just arrived, but is he interested in asking some questions? 

Mr. KING. Mr. Chairman, I’d be very grateful to have that opportunity. 

Mr. CHABOT. Excellent. We appreciate that. The gentleman is 

recognized for 5 minutes. 

Mr. KING. Thank you, Mr. Chairman. And I thank the witnesses 

for their testimony and regret I wasn’t able to listen to it all in its 

entirety, although I do come to this panel with a significant degree 

of curiosity with regard to this whole subject matter of reauthorization of the Voting Rights Act. 

You know, I’ve watched this society evolve from the time I was 

a young man and I saw the civil rights demonstrations in the 

streets, and I do believe and will always contend that it was necessary to establish the Voting Rights Act when we did. But I also 

don’t see a path for us to ever get to the point where we could just 

simply recognize that this society has evolved to the point where 

we could get along without it. And I don’t see a path that’s being 

proposed on how we might be able to change the preclearance 

67

qualifications, for example, let alone the multilingual language 

that’s in there. 

But I just direct my inquiry to Mr. Clegg. Your constitutional 

view? Could you state that with a little more depth, and your viewpoint on how you see this from a constitutional perspective in the 

Voting Rights Act? 

Mr. CLEGG. Sure. Section 5 is constitutionally problematic for 

two reasons. First of all, there are federalism concerns because of 

the extraordinary nature of the preclearance procedure. Voting activities are usually a State matter. Sometimes they are constitutionality committed to the States. And therefore there’s a presumption that these matters are going to be handled by the States without the State having to go get permission from the Federal Government beforehand. The Voting Rights Act section 5 obviously 

changes that. 

The other thing that section 5 does is allow the Justice Department to refuse to preclear a change not only when it is retrogressive and there is a discriminatory purpose, but also when it’s retrogressive and there is simply a disproportionate effect on one racial 

group or another. The reason that that’s constitutionally problematic is that the Supreme Court has made clear that Congress’s authority in this area, that the Constitution prohibits only disparate 

treatment on the basis of race, not simply State actions that have 

a disparate impact. 

Mr. KING. Mr. Clegg, with regard to that—and I didn’t hear you 

reference the 14th amendment Equal Protection Clause in this— but as I look at the results of this, and the Supreme Court has 

ruled that it’s all right to discriminate on the basis of race as long 

as you’re discriminating on the basis of advantaging a minority, 

has there been a case brought forward before the Court where 

there has been a non-minority that has been disadvantaged because of the redistricting and the gerrymandering to benefit minorities? 

Mr. CLEGG. Well, yes. That would be the Shaw v. Reno decision, 

which the NAACP referenced here. So the prohibition against—and 

this is actually a third way that section 5 raises constitutional 

problems. Again, unfortunately, it has been interpreted to require 

racial gerrymandering and to require the racial segregation of districts. And that is inconsistent with the Equal Protection Clause 

and with the 15th amendment, as the Supreme Court explained in 

Shaw v. Reno. I would say that it is unfair and wrong when that 

kind of segregation occurs not only to White voters, but also with 

respect to Black voters. 

Mr. KING. In Iowa we have a redistricting plan that separates all 

that and doesn’t allow any gerrymandering and it’s totally blind 

and unbiased in many, many regards. And I understand the politics of this on the one side—actually politics on both sides—but 

would you speculate as to what this country would look like if we 

just simply didn’t reauthorize the Voting Rights Act and we let the 

conscience of the States and the people in this country regulate? 

Mr. CLEGG. Well, it’s important to keep in mind, Representative 

King, that many provisions of the Voting Rights Act are permanent. And—— Mr. KING. Two or three, for example? 

68

Mr. CLEGG. And many of them are uncontroversial. And of course 

the 15th amendment and the 14th amendment are permanent as 

well. So just because section 5 is not reauthorized does not mean 

that a State that decided that it wanted to discriminate on the 

basis of race would be able to. It would still be blocked from doing 

that by the 14th amendment, the 15th amendment, and the permanent provisions of the Voting Rights Act. And I think that the point 

that Representative Lewis made and that I’ve made today is that 

the record is just not there to show that the covered jurisdictions, 

if section 5 were not reauthorized, are going to start acting as if 

it were 1965. 

I mean, one way to look at this, Congressman King, is suppose 

that we never had a section 5 and somebody came forward today, 

in 2006, with this bill. Somebody came forward in 2006 with this 

bill that was going to single out the jurisdictions that are singled 

out now by this bill and said, ‘‘Let’s require these jurisdictions to 

jump through these hoops and to be singled out for the penalty provisions of section 5.’’ Would that bill—would anybody be seriously 

considering the enactment of that bill? And would anybody seriously think that that bill would withstand constitutional scrutiny? 

And the answer, of course, is no. 

Mr. KING. Thank you, Mr. Clegg. I yield back. 

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

Did the gentleman from Virginia have a request? 

Mr. SCOTT. Mr. Chairman, part of the reason the jurisdictions 

are the way they are now is because of the Voting Rights Act. And 

I would like, if any of the witnesses have closing comments on the 

continuing need for the Voting Rights Act, I would appreciate it if 

you’d give them an opportunity to respond. 

Mr. CHABOT. Okay. 

Mr. HEBERT. I would like to make a statement. Very briefly, Mr. 

Chairman—and thank you, Mr. Scott, for the opportunity to address this issue—first of all the Voting Rights Act does not require 

quotas, it does not produce segregated districts. Many of the minority opportunity districts that exist today are the most integrated 

districts in the country. They’re 50, 55 percent minority. I mean, 

you know, there are a lot of Members up on this Committee who 

have come from districts that are 95 percent White, or better. 

I think the best way to look at this is the way I described recently when I was speaking during Black History Month to a class. 

And they said, well, what’s the story with the Voting Rights Act 

extension? And I thought, what an interesting thing for sixth graders to ask that question. And I said, you know, here’s the way to 

look at this. Back in 1982, Congress decided that strong medicine 

was still needed and the prescribed three pills a day of penicillin 

for 25 years. And hopefully, that was going to cure the disease of 

discrimination in voting. 

Now, along the way, what we have found out is that the Supreme Court has said, in Georgia v. Ashcroft, well, you don’t need 

to take three a day. Only take two a day. And then they came 

along with Bossier Parish and they said, well, we’re going to take 

one of those others away, so now you’re down to one a day. 

Well, the problem with that is that the penicillin you were originally prescribed is going to take a lot longer to take effect. What 

69

I see this bill doing is it gets us back to three pills a day, and hopefully a day when we have a healthy America in our political process, and racial discrimination ends. The disease of discrimination 

will be over. 

That, Mr. King, I think is really the simple answer to why we 

still need the Voting Rights Act, because the engine of racial discrimination runs on. 

Mr. SCOTT. Mr. Adegbile? 

Mr. ADEGBILE. Two quick points. Mr. Clegg said that section 5 

is a penalty clause. Section 5, of course, is not a penalty clause. 

Section 5 is a remedy for demonstrated discrimination in the area 

of race in voting. In fact, it may be more appropriate to say that 

without section 5 the penalties that were imposed on minority voters for nearly 100 years after the passage of the 15th amendment— that is a substantial period of time—for nearly 100 years the Constitution was ignored, and it was tolerated in this country. 

Section 5 has begun to move us closer to ensuring the provisions 

of the Civil War Amendments. But we’re not there yet. There’s 

nothing inconsistent with recognizing the progress that we have 

made and also recognizing some of the mechanisms, legal and otherwise, that have helped to carry us there. 

In light of the extensive record before this body, and I would say 

it’s not just the number of pages, but what’s contained in it. I will 

admit I’ve not looked at or read every page, though I have actively 

been engaged in helping to build the record, and it’s very substantial. It’s substantial at the local level. It’s substantial at the Statewide level. It’s substantial as to redistrictings, as to intentional discrimination, as to discriminatory effects. 

And finally, I will just say that history did not begin yesterday. 

Mr. Clegg says that we should start to analyze the passage or renewal of section 5 by saying, well, let’s look at today and see how 

we find the way forward. The history of discrimination taught us 

about how it happens. And what the Congress has learned is that 

discrimination in voting is both adaptive and persistent. And it is 

that adaptive persistence that made section 5 necessary in 1965 

and, based on the record, also today. 

Mr. SCOTT. Thank you very much. 

Mr. Clegg, did you have something? 

Mr. CLEGG. I was just going to say that, with respect to the 

record, when you all started out, it would seem to me that you 

would want the record to do a number of things. First of all—and 

somebody reviewing the record, the Supreme Court reviewing the 

record, is going to look for a number of things. 

First of all, it’s going to want to make sure that the Committee 

came into this with an open mind and was getting evidence from 

both sides of this debate. It is going to want evidence of intentional, 

purposeful racial discrimination in the covered jurisdictions. And it 

iss going to need evidence that the discrimination that it found in 

the covered jurisdictions was worse than what’s going on in the 

noncovered jurisdictions, because, after all, section 5 covers one 

and not the other. And then finally, it was going to need evidence 

that the extraordinary preclearance provisions and the use of an effects test rather than an intent test are necessary to ensure that 

purposeful discrimination does not occur. 

70

And honestly, Mr. Chairman, I think that the record that you all 

have built, while it does have some instances of intentional discrimination in covered jurisdictions, is going to be inadequate for 

all of the four reasons that I’ve just listed. 

The record reads as if you all made up your minds ahead of time 

and you were trying to compile a record that was going to justify 

what you had already decided that politically you wanted to do. 

You found some evidence of intentional discrimination in the covered jurisdictions, but a lot of what’s in there is not about purposeful discrimination. There is, I think, no real showing that the covered jurisdictions are more problematic than the noncovered jurisdictions. And finally, there’s very little attention to why the 

preclearance provisions and the effects test are the best way to get 

at the intentional discrimination that does remain in the covered 

jurisdictions. 

I think this bill is very vulnerable if it’s passed in this form and 

is challenged in court. 

Mr. CHABOT. The chair would just note that the record has been 

open and available for all groups of all opinions to supplement, to 

add to this record. And any group that would like to add additional 

information is certainly welcome to do so. 

Mr. WATT. Would the gentleman yield? 

Mr. CHABOT. I yield to the gentleman, yes. 

Mr. WATT. I hope he will make it clear that the record is still 

open. 

Mr. CHABOT. That’s correct. So, Mr. Clegg, if you or groups that 

you are aware of would like to add additional material, we would 

be happy to receive that. 

Mr. Hebert, as at least one person in this room—I know there 

are others—that has actually read the whole record, would you like 

to comment on Mr. Clegg’s comment about the lack of substance or 

support for reauthorization of the Voting Rights Act? 

Mr. HEBERT. Yes, I would. Thank you for that opportunity. 

First of all, I think what the Committee had before it at the time 

it started its process was a bill that was already in place from 

1982, that had been amended and extended in 1982. So you obviously had a starting point, and the appropriate thing to do was to 

consider whether those special provisions should be continued. You 

don’t start with a clean slate, as Mr. Clegg would have us believe. 

You know, that kind of ignores the whole history of discrimination 

that’s taking place in the country. You don’t come into 2006 and 

say, okay, could we enact this bill as H.R. 9 today if there had been 

no Voting Rights Act. I mean, you know, yeah, if the earth was flat, 

we would have all fell off, too. 

The problem with Mr. Clegg’s analysis is that Congress had an 

open mind. The open mind was let’s see what evidence is out there 

about whether we continue to need these special provisions. And if 

you have evidence, Mr. Clegg, or anybody else, as the Committee 

said, bring it on. And if those of us who support the extension have 

evidence showing continued discrimination, bring it on. I think 

that’s what the Committee’s process has done. 

As to the racial purpose that’s out there, the evidence is replete 

with examples, in this record, of intentional discrimination. And 

the fact is that though there may be discrimination taking place in 

71

some of the noncovered areas, does that mean that section 5 is not 

working not only because there’s continued evidence of discrimination in the covered areas, but perhaps section 5 has worked to stop 

it, as it was properly supposed to do? 

I mean, for all those reasons, I think that the record that the 

Committee has put together has been an impartially assembled 

record with no preconceived notions and has attempted to develop 

as complete a record as possible to support the extension. And I 

think that, in fact, it has done so. 

Mr. CLEGG. Mr. Chairman, I just want the record to reflect that 

I appreciate the opportunity the Committee has afforded me to testify and that there have been a number of studies, particularly 

those published by the American Enterprise Institute, that have 

been put into the record that I think make my point, that there is 

not an appreciable difference anymore in the degree of discrimination between covered and noncovered jurisdictions, and that the 

record of the covered jurisdictions is quite consistent with the 

sworn testimony that Congressman Lewis gave in Georgia v. 

Ashcroft. Mr. CHABOT. We appreciate the witnesses’ testimony here this 

afternoon. 

Mr. WATT. Mr. Chairman? 

Mr. CHABOT. Mr. Watt? 

Mr. WATT. I ask unanimous consent just to make a 30-second 

comment—— Mr. CHABOT. Without objection. 

Mr. WATT [continuing]. On something that Mr. Clegg said. Because since Chairman Sensenbrenner and I had throughout this 

process been monitoring the record and trying to craft a bill, I don’t 

want it to go unchallenged that somehow we started someplace and 

ended up the same place. That is just absolutely not the case. Had 

this bill been dropped before we started these hearings, I think it 

would have been a substantially different bill in a number of respects. 

So anybody who has this notion that this process was programmed—and Chairman Sensenbrenner was adamant about it. 

That’s why no bill was dropped until after the hearing record was 

developed. That’s why we made a particular emphasis with the 

Senate to have them have the benefit of the entire House record 

by having Chairman Sensenbrenner and Ranking Member Conyers 

take it over there and put it into their record. We are patently 

aware of the value of having a record here. And for anybody who’s 

thinking that somehow we started with a notion of what this bill 

was going to include and ended with exactly that notion is just 

wrong. 

So I just—I think I just needed to clarify that. 

Mr. CHABOT. I thank the gentleman, because I know the gentleman has been very involved with many of the negotiations that 

have gone on with us and we appreciate his work and cooperation 

on that. 

If there are no further witnesses or evidence to come before this 

Committee, we are adjourned. But I would mention again that we 

do have a hearing this afternoon at 2 o’clock on section 203. 

And no further business, we are adjourned. 

72

[Whereupon, at 10:54 a.m., the Subcommittee was adjourned.] 

(73)

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD

PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF MICHIGAN, AND MEMBER, SUBCOMMITTEE ON

THE CONSTITUTION

Chairman Chabot, as we come to the end of our hearing schedule, I would like 

to commend you on your commitment to running a fair and open hearing process. 

Your flexibility and cooperation was essential to ensuring that all voices were heard 

as we approached the reauthorization of this historic legislation. Your leadership 

has been critical to the success of the process, thus far, and a testament to the fact 

that civil rights need not be a partisan issue. 

On Tuesday, we are introducing H.R. 9, Voting Rights Act Reauthorization and 

Amendments Act, which will renew and strengthen the Voting Rights Act for another 25 years. Chief among the expiring provisions of the VRA is Section 5, which 

requires that any change to voting rules in covered jurisdictions be submitted to either the U.S. Department of Justice or a federal court for ‘‘preclearnace’’ before it 

can take effect. Through Section 5, the VRA has prevented thousands of discriminatory voting changes from undermining minority voters’ meaningful access to the ballot. 

Our inquiry in the Act has broken down into two fundamental questions: 1) Is 

there an adequate record of discrimination to justify reauthorization of the expiring 

provisions ? and 2) Are the expiring provisions, as interpreted by the courts, still 

adequate to protect the rights of minority voters ? These questions should continue 

to guide us as we examine H.R. 9 itself. 

There is no right more fundamental than the right to vote, but for nearly a century, many Americans were denied this fundamental right of citizenship. While we 

applaud the substantial progress which has been made in the area of voting rights 

over the last 40 years, we must continue our efforts to protect the rights of every 

American voter with the reauthorization and restoration of the expiring provision 

of the Act. I look forward to the testimony of our witnesses. 

PREPARED STATEMENT OF THE HONORABLE MELVIN L. WATT, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF NORTH CAROLINA, AND MEMBER, SUBCOMMITTEE

ON THE CONSTITUTION

Thank you, Mr. Chairman. I want to begin by thanking Chairman Sensenbrenner 

for scheduling these hearings on H.R. 9 so that we can move forward towards passage of a Voting Rights Act reauthorization this Congress. Let me also thank you 

and Ranking Member Nadler for overseeing our compilation of an exhaustive record 

that fully and completely supports the policy choices that we have made with the 

introduction of this bill. Our record consists of an abundance of evidence that supports the continuing need for the expiring provisions of the Voting Rights Act, and 

was developed with an acute understanding of and attention to the Supreme Court’s 

‘‘congruence and proportionality’’ standard that imposes limitations on Congressional enforcement powers under the 14th (and likely the 15th ) Amendment(s). 

This morning we focus primarily on the coverage, preclearance, and federal observer provisions in the bill. Section 4 of H.R. 9 effectuates a 25 year extension of 

these provisions. In addition, Section 3 makes changes to the examiner/observer provisions of the original bill by, in effect, updating the bill to reflect current circumstances. Federal examiners are eliminated, while Federal observers are retained 

and made subject to independent criteria for deployment and no longer tied to 

whether an examiner has been certified. Section 5 of H.R. 9 makes additional, necessary changes to Section 5 of the original Voting Rights Act, by addressing restricVerDate 0ct 09 2002 14:48 Jun 29, 2006 Jkt 000000 PO 00000 Frm 00077 Fmt 6601 Sfmt 6621 G:\WORK\CONST\050406A\27334.000 HJUD1 PsN: 27334
74

tive Supreme Court decisions that misconstrued the original intent of Congress. 

Reno v. Bossier Parish II (2000) and Georgia v. Ashcroft (2003) unhinged over 30 

years of judicial interpretation and administrative implementation of the Voting 

Rights Act from their moorings. Together, these two cases returned back to jurisdictions with a history of discrimination the very discretion in implementing voting 

changes that Congress intended to curtail. Without the fix contained in H.R. 9, covered jurisdictions—those with a history and ongoing record of discrimination precluding the ability to bail-out from coverage—could enact and enforce, with impunity, voting changes that purposefully discriminate or undermine minority voters 

ability to elect candidates who share their values and represent their interests. 

We’ve always known that not everyone would appreciate the conclusions reflected 

in H.R. 9. Some critics of the bill—one of whom appears on this panel (Mr. Clegg)—

maintain in one breath that our record is one-sided and, yet in another, cite extensive evidence that is contained in our record in support of a different approach to 

reauthorization. Academics, litigators, election officials, and voters, all no doubt 

have a variety of views inspired by various motivations on the voting rights issues 

with which we deal in this bill. But it is our responsibility, our duty to sift through 

the record and make a determination how best to serve the interests of society 

based upon congressional fact finding. 

The cynical notion—articulated in submitted testimony today—that bipartisan, bicameral consensus on a civil rights bill is tantamount to racial pandering is not only 

wrong, it is offensive. A Congress with far fewer African Americans, Latinos and 

Asian Americans passed the Voting Rights Act of 1965 because the Constitution had 

been violated for too long. As we sit here today and evaluate the renewal bill, we 

do so because the record demonstrates that the work is incomplete. We have deliberated long and hard over months and months of internal debate; we have assembled an extraordinary record with competing facts and policy perspectives; we have 

listened to every side of this issue from the left, from the right; and we have reached 

the considered judgment that H.R. 9, supported by factual evidence of ongoing discrimination, vindicates the Constitutional rights of racial and language minorities 

to participate fully in the electoral process. This bill is not a panacea for all of the 

concerns raised by the record before us. But as the Supreme Court noted in the first 

challenge to the Voting Rights Act, in South Carolina v. Katzenbach, ‘‘legislation 

need not deal with all phases of a problem at the same time.’’ We must remain vigilant in crafting legislative remedies to secure the electoral franchise for all Americans. H.R. 9 goes a long way towards satisfying that goal.

75

PREPARED STATEMENT OF THE HONORABLE JOHN LEWIS, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF GEORGIA


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PREPARED STATEMENT OF THE HONORABLE WILLIAM J. JEFFERSON, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF LOUISIANA

I would first like to thank Chairman Chabot and Ranking Member Nadler for 

their leadership on this most important issue. It is critical that Congress reauthorize the Voting Rights Act and I am appreciative of your support of this bill. 

Mr. Chairman, the passage of the Voting Rights Act 41 years ago has had a powerful impact on this nation. Prior to its passage scores of African-Americans, 

Latinos, Asians, and Native Americans were excluded from the process. Yet now it 

has resulted in so many minorities of all cultures gaining substantive access to the 

democratic process. In my own district, passage of the Voting Rights Act has allowed my constituents to elect the first black Mayor of New Orleans in Dutch Morial 

as well as the first black member of Congress from Louisiana since Reconstruction. 

However, the gains that have been made due to the Voting Rights Act must not 

overshadow the need to reauthorize the expiring provisions. Since Section 5 coverage of the state began, the Civil Rights Division has object to discriminatory voting changes in Louisiana 146 times, 96 of which have occurred since the last extension in 1982. That is to say 65% of the objections placed against the state have occurred since Congress last extended protections to minority voters. 

Of the 96 objections since 1982 no fewer than half a dozen have directly concerned 

attempts to dilute minority influence in Orleans Parish. These include attempts by 

the state legislature to eliminate minority opportunity districts in 1982, 1991, and 

as recently as 2000. In 2000, the state’s redistricting plan was opposed by the 

United States Department of Justice under Attorney General John Ashcroft as the 

state once again attempted to eliminate minority opportunity districts in Orleans 

Parish despite the fact that the African-American population of New Orleans had 

increased in real numbers and as a percentage of the Orleans Parish population. 

According to reports from the National Association for the Advancement of Colored People (NAACP), People for the American Way (PAFW), and various press reports, students at Prairie View A&M University, a largely African-American institution, were erroneously told that they were ineligible to vote. This is particularly disturbing as I have three Historically Black Colleges in my district. 

Yet this issue goes beyond intimidation and disenfranchisement of black voters. 

The Latino population in the United States continues to grow at fast rate we must 

continue to provide the growing community with the resources to participate in the 

process. To that end, we must work to reauthorize provisions in the Voting Rights 

Act that provide these voters with bi-lingual ballots. It is in large part because of 

the important provisions of the Voting Rights Act that over 5,000 Latinos now hold 

public office in this country. The demographics of the nation are changing and we 

must continue to change with it. Only then will minorities earn true political incorporation. This is why we must reauthorize section 203 of the Voting Rights Act providing bi-lingual ballots. 

. The displacement caused by Hurricane Katrina makes it even more critical that 

this bill come to the floor quickly to be voted on, passed, and presented for signature. New Orleans has historically taken an active role in the struggle for minority 

voting rights. During the Civil War, free blacks there demanded suffrage; their efforts resulted in Lincoln’s first public call for voting rights for some blacks in the 

final speech of his life. Once these rights were won, New Orleans blacks took an 

active part in politics, leading to the establishment of the South’s only integrated 

public school system. In the aftermath of Hurricane Katrina, New Orleans finds 

itself at a turning point again in the struggle for voting rights. 

The Supreme Court declared more than a century ago that the equal right to vote 

is fundamental because it is ‘‘preservative of all rights.’’ Every citizen of New Orleans, spread across 44 states, must be able to vote and it is only through the protections afforded to them by the Voting Rights Act that this will happen. Without the 

protection of the Voting Rights Act, these proposed changes would have been allowed, effectively disenfranchising a large segment of the population of the state. 

Reauthorization of Section 5 of the Act, requiring Department of Justice 

preclearance of changes to voting policies and procedures in certain jurisdictions, is 

vital. Section 5 must not be removed or weakened. This is of especial importance 

in areas with a documented history of exclusion and discrimination such as Louisiana. 

Reauthorization of the Voting Rights Act of 1965 is essential to our Nation because of the continuing efforts of some to deny voting rights to segments of our population. While progress has undeniably been made the task is far from over. Reauthorizing this act will bring us one more critical step forward to fulfilling the dream 

of over 500 non-violent protestors who bore the brunt of the backlash on Bloody 

Sunday. It will send a clear message to those who would seek to suppress voting 

78

rights that their machinations will not be tolerated. Reauthorizing this act will send 

a clear message to multitude of minority voters that their voices have been and will 

continue to be heard. Most importantly, it will bring this country one more crucial 

step toward fulfilling the ideals articulated by the Founding Fathers and true inclusion for all.

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APPENDIX TO THE STATEMENT OF ROGER CLEGG: AN ASSESSMENT OF VOTING RIGHTS

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PREPARED STATEMENT OF THE HONORABLE J.C. WATTS, JR.


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PREPARED STATEMENT OF JAN TYLER, FORMER DENVER ELECTION COMMISSIONER

This statement is to convey my opposition to the renewal of Section 203 

and Section 4(f)(4), the language provisions of the Voting Rights Act of 

1965, as amended. 

INTRODUCTION

My name is Jan Tyler. I was elected twice as a City and County of Denver Election Commissioner in l995 and l999. The Commission was established in 1904 with 

the Denver City Charter and is comprised of two elected Commissioners and the 

Clerk and Recorder, who is appointed by the Mayor. 

I was certified as a Certified Elections Registration Administrator in 2001 

through a professional organization, The Election Center, which is affiliated with 

Auburn University. I renewed my certification in 2004. My career as an election administrator has always been an avocation, which I have continued as a volunteer 

election observer in Montenegro, Serbia, Ukraine and most recently last fall a two 

month stay in Kazakhstan. 

For the purposes of understanding opposition to the renewal of the VRA, I believe 

it is essential to respect the professional objectivity of the election administrator. 

MY EXPERIENCE WITH THE VRA

Justice Department officials first contacted the Denver Election Commission in 

2002 to inform us that Denver County had been added to the list of jurisdictions 

covered under Sec. 203. 

We were told the Commission had to implement an extensive program to print 

ballots in Spanish, distribute voting materials in Spanish, and design outreach programs in Spanish. 

This seemed fundamentally un-American to me. At the time I was a member of 

the National Society of Daughters of the American Revolution, and I was familiar 

with the NSDAR’s involvement in the naturalization ceremonies for new citizens. 

I thought new citizens were supposed to speak English as a requirement of citizenship. 

My own grandfather, a Polish immigrant, naturalized on August 29, l918. I completely empathize with the immigrant—before my parents changed my name, I was 

born Jan Zawistowski. This was my identity, and I was proud to be born his first 

grandchild on August 29, 1950, the same day my grandfather’s naturalization took 

place many years before. 

But my grandfather would have been appalled if the government decided to print 

his American ballots in Polish, even if l0,000 of his closest Polish friends did live 

in Atlanta. 

Although I am certain the intentions behind the bilingual voting assistance requirements of the VRA were good, its effect has been to discourage new immigrants 

from assimilating and learning English. These provisions have also imposed significant costs on covered jurisdictions, including Denver County. I estimated at the time 

that Spanish assistance could add up to $80,000 to the more than $500,000 it costs 

to conduct an election in Denver County. 

The cost estimates were accurate and about $80,000 has been spent every year 

since 2002 to comply. 

NO JUDICIAL REVIEW

The VRA commands that there be no judicial review of coverage determinations 

under Sec. 203, which are made by the U.S. Census. 

This is not good government. Coverage determinations should be subject to scrutiny by the courts. 

One of the most significant problems with the way the Census makes coverage 

determinations today has to due with way the Bureau defines limited English proficiency (LEP). 

Specifically, Sec. 203 states: ‘‘the term ‘‘limited-English proficient’’ means unable 

to speak or understand English adequately enough to participate in the electoral 

process.’’

The Census Bureau is interpreting this definition of LEP to include persons who 

self-identify themselves as speaking English ‘‘not at all’’, ‘‘not well’’, or ‘‘well.’’ Those 

who identify themselves as speaking English ‘‘well’’ should not be counted as ‘‘limited English proficient’’ for the purpose of making coverage determinations under 

Sec. 203. 

The Census Bureau’s overly broad definition of LEP has resulted in many counties being covered under Sec. 203 that should not be. 

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I doubt that the truly limited English proficient population of Denver County 

meets the 10,000 or 5% threshold required to trigger coverage under the law. But 

since the Bureau’s coverage determinations, including the definition of LEP used to 

make such determinations, ‘‘shall not be subject to review in any court’’ there is no 

remedy for Denver County or other covered jurisdictions. 

I also encountered problems with the DOJ on the enforcement side of the Sec. 203 

requirements. 

Given my duty as an Election Commissioner to uphold the law, I decided to encourage full compliance. But when I asked DOJ officials for written and customized 

instructions for complying, I was told ‘‘We do not tell you specifically what to do.’’

Although there are some general, written guidelines, we were told that ‘‘voter complaints’’ would be used by DOJ officials to judge whether we were complying with 

the law. As anyone with any election administration experience knows, this is a 

poor way to judge compliance. There are many complaints even after the most well 

run election. 

One DOJ official went so far as to tell me ‘‘we’ll know you’ve complied when we 

see it.’’

SURNAME ANALYSIS

The DOJ uses a form of ethnic profiling called ‘‘surname analysis’’ to identify locations for bilingual polling districts in covered jurisdictions. The Justice Department 

also compels covered jurisdictions to conduct voter outreach efforts (e.g. mass mailings) targeting limited English proficient voters based on analysis of the surnames 

of voters living in covered jurisdictions. 

This is a highly inaccurate way to target LEP voters. Many people with Hispanic 

or Asian surnames speak English ‘‘very well.’’ Women whose native language is 

English, but who marry and take on Hispanic, Asian, or surnames of other covered 

language minority groups, do not need bilingual ballots. 

Surname analysis is also insulting to immigrants who have naturalized and 

learned English in order to vote. This is why some jurisdictions get furious responses from both Spanish and, of course, English speakers who are outraged that 

they have been singled out just because of a Spanish sounding surname. 

The DOJ should be barred from using surname analysis. It should also be prohibited from requiring covered jurisdictions to use surname analysis for the purpose of 

implementing Sec. 203. Instead, Census data should be used to target only those 

voters who identify themselves as speaking English ‘‘not at all’’ or ‘‘not well.’’

CONCLUSION

Members of the Committee, I care about how we administer our elections. There 

is a difference, and will always be a difference, between the perspective of an Election Administration professional, whether elected or serving as a career appointee, 

and those who are political activists. 

As an Election Administrator, I urge you to decline to renew Section 203 and Section 4(f)(4) of the Voting Rights Act.

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ANA HENDERSON AND CHRISTOPHER EDLEY, JR., ‘‘VOTING RIGHTS ACT REAUTHORIZATION: RESEARCH-BASED RECOMMENDATIONS TO IMPROVE VOTING ACCESS,’’ CHIEF

JUSTICE EARL WARREN INSTITUTE ON RACE, ETHNICITY AND DIVERSITY


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Æ


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