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28–213 PDF 2006

S. HRG. 109–458

AN INTRODUCTION TO THE EXPIRING PROVISIONS

OF THE VOTING RIGHTS ACT AND LEGAL

ISSUES RELATING TO REAUTHORIZATION

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 9, 2006

Serial No. J–109–74

Printed for the use of the Committee on the Judiciary

(

(II)

COMMITTEE ON THE JUDICIARY 

ARLEN SPECTER, Pennsylvania, Chairman 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

MIKE DEWINE, Ohio 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

PATRICK J. LEAHY, Vermont 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERBERT KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

MICHAEL O’NEILL, Chief Counsel and Staff Director 

BRUCE A. COHEN, Democratic Chief Counsel and Staff Director 

(III)

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4

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

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

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

statement .............................................................................................................. 226

Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama .......................... 2

Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1

WITNESSES 

Davidson, Chandler, Professor Emeritus, Rice University, Houston, Texas ...... 5

Hasen, Richard L., William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles, California ............................................................ 8

Issacharoff, Samuel, Reiss Professor of Constitutional Law, New York University School of Law, New York, New York .......................................................... 13

McDonald, Laughlin, Director, ACLU Voting Rights Project, Atlanta, Georgia 11

Shaw, Theodore M., Director-Counsel and President, NAACP Legal Defense 

and Educational Fund, Inc., New York, New York ........................................... 7

QUESTIONS AND ANSWERS 

Responses of Richard L. Hasen to questions submitted by Senators Specter, 

Cornyn, and Sessions ........................................................................................... 35

Responses of Chandler Davidson to questions submitted by Senators Cornyn 

and Leahy ............................................................................................................. 42

Responses of Samuel Issacharoff to questions submitted by Senators Specter, 

Sessions and Cornyn ............................................................................................ 72

Responses of Laughlin McDonald to questions submitted by Senators Specter, 

Kennedy, Schumer and Cornyn .......................................................................... 78

Responses of Theodore M. Shaw to questions submitted by Senators Specter, 

Cornyn, Leahy, Kennedy and Schumer .............................................................. 150

SUBMISSIONS FOR THE RECORD 

Davidson, Chandler, Professor Emeritus, Rice University, Houston, Texas, 

prepared statement .............................................................................................. 201

Hasen, Richard L., William H. Hannon Distinguished Professor of Law, Loyola Law School, Los Angeles, California, prepared statement ......................... 214

Issacharoff, Samuel, Reiss Professor of Constitutional Law, New York University School of Law, New York, New York, prepared statement ....................... 220

McDonald, Laughlin, Director, ACLU Voting Rights Project, Atlanta, Georgia, 

prepared statement .............................................................................................. 228

Shaw, Theodore M., Director-Counsel and President, NAACP Legal Defense 

and Educational Fund, Inc., New York, New York, prepared statement ........ 264

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AN INTRODUCTION TO THE EXPIRING PROVISIONS OF THE VOTING RIGHTS ACT AND 

LEGAL ISSUES RELATING TO REAUTHORIZATION 

TUESDAY, MAY 9, 2006

U.S. SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Committee met, pursuant to notice, at 9:30 a.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, 

Chairman of the Committee, presiding. 

Present: Senators Specter, Sessions, Graham, Cornyn, Leahy, 

Kennedy, and Feingold. 

OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. 

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. The 

Judiciary Committee will now proceed. Today we have the second 

in a series of hearings on renewing the temporary provisions of the 

Voting Rights Act. It is clear that the Voting Rights Act of 1965 

has been effective in combating State-sponsored discrimination 

against minority voters, but there is still some discrimination 

which persists, and any is too much on the important right to vote. 

The Supreme Court has held that we must establish a record and 

under the 14th and 15th Amendments, they have imposed a complex test of a program or legislation which must be congruent and 

proportionate. That has involved some grave complexities as they 

have interpreted, for example, the Civil Rights Act and Lane v. 

Tennessee and Garrett v. Alabama, making it very difficult to figure 

out exactly what is congruent and proportionate. There had been 

the test of substantial evidence, and in Lane they upheld the statute as it applied to access, and in Garrett they rejected the statute 

as applied to discrimination. So we have a challenge to establish 

a record which will withstand constitutional scrutiny. 

There has been a shift in the Supreme Court standards with the 

more recent cases. Justice O’Connor’s opinion imposed a standard 

of ‘‘influence districts where minority voters may not be able to 

elect a candidate of choice, but play a substantial if not decisive 

role in the electoral process.’’ 

Today we have a panel of experts to explore the constitutional, 

legal issues on very touchy subjects like how do you make a determination of substantial if not decisive? So we are in a tough line. 

2

And then in Reno v. Bossier Parish or Bossier Parish II, the Supreme Court held that Section 5 prohibited voting changes that 

had the purpose to retrogress or reduce minority voting strength. 

We have a distinguished panel, and we welcome you here, and 

very much appreciate your coming in to lend support to our efforts 

to establish this record. 

Now I want to yield to, and with my compliments, Senator Kennedy, for his outstanding leadership on this important subject. 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you very much, Mr. Chairman, and 

thank you for setting these series of hearings that are going to be 

enormously important in terms of building the record in support of 

this legislation. 

I think all of us understand this is one of the most important undertakings that we will have in this Congress, the extension of the 

Voting Rights Act, and I think all of us are very encouraged by the 

extraordinary bipartisanship which has been demonstrated here in 

the Senate, as well as in the House, and between the House and 

the Senate, we are off to a very important and favorable start. 

I remember the 8 days of hearings that we had in this Committee in 1965, and the many days of debate on the floor, and we 

were able to pass the landmark civil rights law in the 1965 Act, 

with President Johnson signing this legislation in the President’s 

Room in the Capitol. None of us imagined at that time that this 

legislation would be necessary in the year 2006 or into this century. But unfortunately, as the House record makes very, very 

clear, and other sources, that many Americans still face the barriers on voting because of race and ethnic background, the language-minority status, so the Congress must decide whether those 

barriers make the renewal of the Act, expiring provisions, necessary now, and in what form. 

As the Chairman has pointed out, part of this assessment is understanding the relevant legal framework, and he has outlined 

those challenges in his opening comments. 

So part of today’s discussion may seem technical, but it really 

goes to the heart of protecting voting rights and ensuring that any 

bill we pass in this area gets it right. 

I thank the Chair and look forward to the testimony. 

Chairman SPECTER. Thank you very much, Senator Kennedy. 

Senator Sessions, would you care to make an opening statement? 

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM 

THE STATE OF ALABAMA 

Senator SESSIONS. Briefly, Mr. Chairman. I would thank you for 

having a good panel today. I am not sure, we may need to at some 

point hear from attorneys general and Governors who have to work 

with the Act on a regular basis, but I think the panel will be fair, 

and have both sides be heard. 

Mr. Chairman, Alabama has a very grim history of voting rights 

in our State. Before 1965 only 19 percent of African-Americans in 

our State were voting, and they were denied the right to vote with 

any number of tactics and strategies, but it was in many ways a 

3

ruthless decision just to deny them the right to vote, so that the 

majority of the white community could maintain power, and that 

is just what it was. 

The Voting Rights Act, however one feels about it in terms of 

constitutionality or how it was crafted, was one of the best things 

that ever happened to the State. We now have—at one point I 

think we were the No. 1 State in the Nation with African-American 

office holders. I think today that may continue to be true, or we 

may be No. 2. In this last Presidential election, according to the 

Census Bureau, a larger percentage of African-Americans voted 

than whites in the State of Alabama. Now, that is the goal of the 

Act, that was the purpose of the Act, to have that kind of thing 

occur. 

The large numbers of African-Americans holding important offices, for example—there were over 750 elected officials, who are 

African-Americans in Alabama. That includes a United States Congressman, eight State Senators, 27 members of the State House of 

Representatives, 46 mayors, and 80 members of county commissions, school board members, town council members and the like. 

So I just would first want to say that the people of Alabama understand that this change is good, and that the people of my State 

do not want to do anything that would suggest that there would 

be any interest in moving away from this great right of everybody 

to vote, and including African-Americans in our State, and I think 

that is important to say. They do not want to fight over it. We are 

growing economically. We are doing well economically, and we 

want to continue to do so, and that would never have happened 

had the kind of discrimination in the ’60s and before continued 

today. I want to be real clear about that. 

How we deal with the Act is something that is worthy of discussion. Some of our panelists have different ideas, and we would be 

delighted to hear them. I think we should think about this in a 

calm and reasoned and effective way, and not allow ourselves to be 

driven by racial politics or attempts to polarize votes, or attempts 

to gain political advantage on one side or the other. We ought to 

ask ourselves how is this Act working? What is necessary? How we 

should improve it if need be, and maybe some other areas of the 

country ought to be covered by it. Certainly I hear complaints in 

big cities. I never heard any complaints out of Philadelphia about 

votes, but I have in Boston and Chicago and New York, and so 

there are other areas of the country perhaps that need some of the 

provisions in here to apply to them. 

I am hopeful that we will have a good discussion, that we will 

reauthorize this Act in a way that guarantees that there is no 

backsliding on the right of African-Americans to vote in the south 

or in any other part of the country. 

One of the best things that has happened, I will repeat, to our 

State, is the full participation of African-Americans in public life, 

and that was denied to them before this Voting Rights Act was enacted. 

As we go forward, I would hope that we will think carefully 

about how to make it applicable to the State in effective ways. As 

a United States Attorney I had the responsibility of enforcing the 

Act. As Attorney General of Alabama for a short period, 2 years, 

4

I saw it from the State side. I see my colleague, Senator Cornyn, 

here; he is former Attorney General of Texas. You have to deal 

with it in a number of ways. So we have some perspective on the 

practical application of the Act that I think would be worthy of 

some discussion and detail as we go forward. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you, Senator Sessions. 

Senator Cornyn, would you care to make an opening statement? 

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

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Mr. Chairman. Just briefly. Thank 

you for the opportunity, and thank you for conducting these important hearings. I can think of few issues more important to our 

country than full participation in the political process, and that is 

what we are here to try to guarantee and to continue. 

I particularly appreciate your courtesies, Mr. Chairman, in making sure that we have an orderly process and an opportunity to 

have a full and complete record during the course of these hearings, and I particularly look forward to hearing from the witnesses 

today and tomorrow and the coming weeks about the expiring provisions of Section 5 of the Voting Rights Act, and specifically about 

which jurisdictions throughout our Nation should be subject to Federal oversight in the future and why. 

I know that there are a number of significant changes in the legislation that has been introduced, including the overruling of a couple of opinions of the U.S. Supreme Court, and I think we ought 

to look at those very carefully. 

Finally, I would say that we all know that whatever we do as a 

Congress will be scrutinized in the Federal Courts, and part of our 

goal I think ought to be to make sure that, to the extent possible, 

we make sure that Congress will prevails, and that anything we do 

in terms of reauthorizing the Voting Rights Act is not susceptible 

to a likely successful challenge in the Federal Courts. 

So I appreciate very much the opportunity to be here and welcome each of the witnesses, I look forward to your testimony. 

Chairman SPECTER. Thank you very much, Senator Cornyn. 

Senator Sessions, Senator Cornyn and Senator Coburn had written especially to me on the issue of adequacy of the hearings and 

an opportunity for a wide variety of witnesses to appear, and I 

have assured them that that would be the case. We are trying to 

comply with the request of the House to move ahead. 

Senator Feingold has arrived. Would you care to make an opening statement, Senator Feingold? 

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

FROM THE STATE OF WISCONSIN 

Senator FEINGOLD. Just a couple of comments. Let me thank our 

witnesses for being here, particularly on such short notice. I have 

asked to be added as a co-sponsor of the reauthorizing legislation 

that the chairman and Senator Leahy have introduced, and I am 

glad that the Committee is moving forward with the hearings process. 

5

This bipartisan legislation sends a strong and important message 

that Congress remains committed to protecting constitutional 

rights of minority voters under the 14th and 15th Amendments. I 

believe this legislation is crucial, and I look forward to its prompt 

approval in the Senate and the House. 

Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

We turn now to our first witness, Professor Chandler Davidson, 

Professor at Rice University, and the Tsanoff Chair of Public Affairs Emeritus. He and Professor Bernard Grofman of the University of California directed about 30 political science historians and 

sociologists and voting rights lawyers in an effort to assess the impact of the Voting Rights Act in the South, and his resulting book, 

‘‘Quiet Revolution in the South’’ won the Richard Fenno prize 

awarded by the American Political Science Association for the best 

book published on legislative behavior of that year. He holds a 

bachelor’s degree from the University of Texas, a master’s and 

Ph.D. from Princeton. 

Thank you for joining us, Professor Davidson. Our customary 

procedure is to have 5 minutes for statements by witnesses. Your 

full statements will be included in the record, and then we will 

turn to the panel for 5-minute rounds. 

STATEMENT OF CHANDLER DAVIDSON, PROFESSOR 

EMERITUS, RICE UNIVERSITY, HOUSTON, TEXAS 

Mr. DAVIDSON. Chairman Specter, and distinguished members of 

this Committee, thank you for inviting me to testify before you 

today. I am deeply honored. The Voting Rights Act was the climax 

of the period described as the Second Reconstruction. Passed at the 

behest of President Lyndon Johnson by a bipartisan Congressional 

majority in 1965, its purpose is to enforce the 15th Amendment. It 

consists of both a permanent part applying nationwide, and a nonpermanent one consisting of features originally intended to expire 

in 1970. Congress, however, renewed and amended them in 1970, 

1975 and 1982. 

The Act has targeted both major types of racial vote discrimination: disenfranchisement and vote dilution. The first is exemplified 

by literacy tests administered unfairly by whites. The second consists of procedures in predominantly white venues, which combined 

with racially polarized voting, prevent minority voters from electing 

their preferred candidates. 

The major permanent feature of the Act is Section 2, which applies nationally. It prohibits any voting qualification or practice, 

whose purpose or result is denial or abridgement of voting rights 

on the basis of a citizen’s race, color or membership in one of four 

language groups. An important nonpermanent feature is Section 5. 

It requires all covered States and political subdivisions to submit 

proposed election-related changes for preclearance, either to the Attorney General or the U.S. District Court for the District of Columbia, to ensure that the proposed change does not have the purpose 

and will not have the effect of denying or abridging the right to 

vote on account of race or color. Currently, the jurisdictions subject 

to preclearance include eight States in their entirety and parts of 

eight others. 

6

Another important temporary provision of the Act, contained in 

Sections 6 through 9 and 13, enables the Attorney General to send 

Federal observers to certain jurisdictions when racial vote discrimination appears likely on election day. 

Yet another temporary provision concerns citizens whose proficiency in English is limited. In 1975 Congress concluded that, 

‘‘through the use of various practices and procedures, citizens of 

language minorities have been effectively excluded from participation in the election process,’’ including American Indians, Asian 

Americans, Alaska natives and citizens of Spanish heritage. Under 

different coverage formulas, Section 4(f)4 and Section 203 require 

language assistance for these citizens. 

The Act has had a major impact in incorporating racial and language minorities into the polity. Perhaps the most striking evidence is the extraordinary increase in black elected officials in the 

South. In 1970 there were 565. In 2000, there were 5,579. Nonetheless, race is still a major fault line in American politics, and problems of racial discrimination in voting are widespread, if diminished. 

Research in 2005 by the National Commission on the Voting 

Rights Act, a task force created by the Lawyers’ Committee for 

Civil Rights Under Law, focused on the extent to which the Federal 

Government and private citizens employed the Act to combat racial 

or language-group discrimination since 1982. Among its findings, 

the Justice Department sent 626 letters objecting to one or more 

proposed discriminatory election changes in Section 5 jurisdictions, 

and there would have been even more if some jurisdictions had not 

withdrawn their proposals after the Department had requested 

more information about them. 

The Department sent several thousand Federal observers to participate in 622 election day coverages when it had reason to expect 

racial problems at the polls. Not only did they sometimes report 

discrimination, their presence probably discouraged even more. 

A nationwide study of Section 2 lawsuits with results favorable 

to minority plaintiffs, conducted at the University of Michigan Law 

School, revealed 117 reported cases between 1982 and 2005. For 

the same period, research by the National Commission, revealed 

653 successful Section 2 cases, reported and unreported, in nine 

Section 5-covered States alone. 

In summary, the Commission’s findings and other research point 

to a worrisome persistence of activities the Act was fashioned to 

prevent. For this reason, it is my opinion, as one who has written 

about the Act and its effects for more than 30 years, that its nonpermanent features should be renewed. 

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

Chairman SPECTER. Thank you very much, Professor Davidson. 

Our next witness is Mr. Theodore M. Shaw, Director-Counsel and 

President of the NAACP Legal Defense and Educational Fund, who 

has a reputation as one of the Nation’s leading civil rights attorneys. Since joining the Legal Defense Fund in 1982, he has litigated school desegregation, capital punishment, and other civil 

rights cases. He has taught constitutional law at Michigan Law 

School, Temple Law School and New York Law School. He has a 

7

bachelor’s degree from Wesleyan and a law degree from Columbia, 

where he was a Charles Evans Hughes Fellow. 

Thank you for coming in today, Mr. Shaw, and the floor is yours 

for 5 minutes. 

STATEMENT OF THEODORE M. SHAW, DIRECTOR-COUNSEL 

AND PRESIDENT, NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., NEW YORK, NEW YORK 

Mr. SHAW. Thank you, Mr. Chairman, for inviting me to participate in this important hearing, and I thank the other distinguished 

members of the Committee. 

The Legal Defense Fund has been engaged in voting rights almost since its inception over six decades ago, and we have been engaged in the enforcement of the Voting Rights Act since the moment it was enacted. We have a very solid conceptual understanding of the Voting Rights Act, but our understanding is not 

limited to a conceptual analysis, as important as that is. It is tempered by experience in representing African-American plaintiffs in 

litigation, including some of the most important cases involving the 

interpretation and application of the Voting Rights Act that have 

been decided by the Supreme Court in other cases. We have been 

involved in almost every major voting rights case before the Supreme Court. This experience is directly rooted in our representation of African-Americans. 

The Voting Rights Act is an integrated statutory scheme that 

works to address one of this Nation’s most difficult and deeply entrenched betrayals of democracy. It is only appropriate that Congress enacted one of the most vigilant laws to successfully address 

that betrayal. 

We recognize what has been called the new federalism, which the 

Supreme Court has articulated in the Boerne line of cases, and 

those cases have raised significant questions about the scope and 

the reach of Congressional authority under Section 5 of the 14th 

Amendment. But even in recognizing that, we also recognize that 

in each of the cases that have followed Boerne, whether we are 

talking about Florida Prepaid, Kimel, Morrison, Garrett, Hibbs, 

Tennessee v. Lane, in each of those cases in which the Voting 

Rights Act has been referenced, the Court has held up the Voting 

Rights Act as an example of proportionality and congruence, and 

there is no indication on the part of the Court, certainly a majority 

of the Court, that the Voting Rights Act itself is unconstitutional. 

We believe that the Court has pointed to the Act as an example 

of the kind of proportionality that would survive Boerne and of congruence, and we recognize that the Court is in flux. It has changed. 

But no one can read the Court’s tea leaves. The Legal Defense 

Fund believes that Congress, while respectful of the Supreme 

Court’s admonitions concerning proportionality and congruence, 

should not, given the successes of the Act, undermine the strength 

of the Act by preemptively weakening it on anticipation of a hostility that exceeds anything that the Court has said. 

We believe that the best indication of where Congress is, is the 

Monterey County case, Lopez, that was decided, in which the Court 

declined to call into question the constitutionality of Section 5’s region application. 

8

We also believe at the Legal Defense Fund that Congress should 

exercise an abundance of caution as it reauthorizes the temporary 

provisions of the Voting Rights Act, and restores the Voting Rights 

Act to its full strength. But we believe that an abundance of caution should be reflected, not in a weakening of the reach of the Act, 

but rather, in ensuring that the record is a strong record. That 

record exists as manifested in the reports that have been done by 

the Leadership Conference with respect to the States. It exists with 

respect to the National Commission, with respect to the ACLU report, and it is a strong record. 

Finally, some say that the Act is a victim of its own successes. 

We caution, by looking at the school desegregation experience, we 

caution what may happen when we remove the protection of the 

Constitution or civil rights initiatives or laws. There is a danger in 

back-sliding. There is a danger in resegregation of politics, just as 

we have seen in resegregation of public schools with the abandonment of desegregation efforts that were vigorously prosecuted and 

protected by the courts. 

Thank you, and I look forward to a question and answer period. 

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

for the record.] 

Chairman SPECTER. Thank you very much, Mr. Shaw. 

Our next witness is Professor Richard Hasen, the Hannon Distinguished Professor of Law at Loyola. He is the co-author of a leading case book on election law, and has authored more than three 

dozen articles on the subject, and his most recent book ‘‘The Supreme Court and Election Law: Judging Equality from Baker v. 

Carr to Bush v. Gore.’’ It is quite a treatise. He has his bachelor’s 

degree from the University of California, has a master’s, J.D. and 

Ph.D. from UCLA. 

We welcome you here, Mr. Hasen, and look forward to your testimony. 

STATEMENT OF RICHARD L. HASEN, WILLIAM H. HANNON DISTINGUISHED PROFESSOR OF LAW, LOYOLA LAW SCHOOL, 

LOS ANGELES, CALIFORNIA 

Mr. HASEN. Thank you very much, Chairman Specter, and Senators on the Judiciary Committee. I appreciate this opportunity to 

appear before you today to testify about Senate Bill 2703 concerning reauthorization of the expiring provisions of the Voting 

Rights Act. 

I come before you as a strong supporter of the Act, who believes 

the expiring provisions should be renewed in some form, but also 

as someone, who after studying this issue for a number of years, 

has deep concerns about the constitutionality of the proposed 

amendments. I believe the Act has been an unqualified success in 

a remarkably increasing minority voter registration and turnout, 

increasing the number of African-American and Latino elected officials, and the ability of minority voters to effectively exercise their 

right to elect representatives of their choice. 

But I urge the Committee to spend the time to craft a bill that 

will both pass constitutional muster in the Supreme Court and do 

the important work of continuing to protect minority voting rights 

in this country. 

9

The constitutional issue, which I have explored in a Law Review 

article and have submitted to the Committee, is this: in recent 

years the Supreme Court has held that Congress has limited power 

to enact civil rights laws regulating the States. Beginning with the 

1997 case, City of Boerne v. Flores, the Court has held that Congress must produce a strong evidentiary record of intentional State 

discrimination to justify laws that burden the States. In addition, 

whatever burden is placed on the States must be congruent and 

proportional to the extent of the violations. 

Beginning in 1965, Congress imposed the strong preclearance 

remedy on those jurisdictions with what the Supreme Court called 

a pervasive, flagrant and unremitting history of discrimination on 

the basis of race. In fact, Carolina v. Katzenbach, the Court upheld 

Section 5 of the Act as a permissible exercise of Congressional 

power. 

What has changed since 1965? Both the law and the facts. On 

the law, the Court, in my view, wrongly, has placed a higher burden on Congress to justify laws aimed at protecting civil rights. On 

the facts we have an evidentiary problem. Because the Act has 

been so effective, it will be hard to produce enough evidence of intentional discrimination by the States so as to justify the extraordinary preclearance remedy for another 25 years. 

I am afraid that much of the evidence referenced in the bill’s 

findings will not be enough for the Supreme Court. For example, 

the findings point to Department of Justice objections to 

preclearance requests by the States. As you can see from Figure 3 

in my article, in recent years objections have been rare. In the most 

recent 1998 to 2002 period, DOJ objected to a meager 0.05 percent 

of preclearance requests. Updating these data, DOJ interposed just 

two objections nationwide overall in 2004, and one objection in 

2005. 

The problem with using objections as evidence of intentional 

State discrimination is unfortunately even worse than it appears. 

In the 1990’s DOJ adopted a policy of objecting to certain State actions that were perfectly constitutional, a policy the Supreme Court 

later rejected. 

The House Judiciary Committee has put together a voluminous 

record to support renewal of Section 5. Although I have not yet reviewed that entire record, my impression from what I have reviewed is that the record documents isolated instances of intentional State discrimination voting. The vast majority of evidence relates to conduct that does not show constitutional misconduct by 

the States. Moreover, the record seems to show that the problems 

continue to exist across the Nation. 

The Court may insist on evidence that covered jurisdictions 

present greater problems than the rest of the Nation to justify the 

geographically selective preclearance remedy. I have heard the argument that the Court will give Congress a pass on Congress’s requirements to produce evidence because Section 5 has been such a 

good deterrent. I hope that that theory is right, but I am not confident that the new Supreme Court would be inclined to agree on 

this point. The problem with such a theory is that it would justify 

preclearance for an undetermined amount of time into the future. 

10

In addition to the problem of producing enough evidence of intentional State discrimination, there is the tailoring issue. That current Act uses a formula for coverage based on a jurisdiction’s voter 

registration or turnout, and its prior use of a discriminatory tester 

device for voting, such as a literacy test. The proposed amendments 

would not update this formula in any way. The Act relies on data 

from 1964, 1968 or 1972 elections. This turnout figures, particularly turnout in minority communities, bear little resemblance to 

turnout figures today. 

I recognize this is politically difficult, but Congress should update the coverage formula based on data indicating where intentional State discrimination in voting on the basis of race is now a 

problem or is likely to be one in the near future. 

Here are three additional steps that Congress should carefully 

consider to bolster the constitutional case. First, Congress should 

make it easier for covered jurisdictions to bail out from coverage 

under Section 5 upon a showing that the jurisdiction has taken 

steps to fully enfranchise and include minority voters. The current 

draft does not touch bailout, and few jurisdictions have bailed out 

in recent years. 

Second, Congress should impose a shorter time limit, perhaps 7 

to 10 years for extension. The bill includes a 25-year extension, and 

the Court may believe it is beyond congruent and proportional to 

require, for example, the State of South Carolina to pre-clear every 

voting change, no matter how minor, through 2031. 

Third, Congress should more carefully reverse only certain aspects of Georgia v. Ashcroft. Georgia v. Ashcroft makes it easier for 

covered jurisdictions to obtain preclearance, meaning that the burden on covered jurisdictions is eased, and therefore, the law looks 

more congruent and proportional. Reversing the case as a whole, 

as this bill apparently would do, though the language in this respect is poorly drafted, could weaken the constitutional case for the 

bill. I would suggest tweaking rather than reversing the Ashcroft

standard. 

Besides these changes, there are ways to strengthen the bill to 

assure that the new provisions of the Act remain a crucial element 

in assuring political equality and the right to vote for all Americans, regardless of race. At the top of my list, given recent troubling allegations of partisan manipulation of the preclearance process is for the Court to reverse the Supreme Court’s holding in 

Morriss v. Gressette. This reversal would allow appeals of DOJ decisions to grant preclearance in controversial and politically charged 

cases, such as those involving Texas redistricting and the Georgia 

voter identification law. 

Thank you for the opportunity to present these views. I look forward to your questions. 

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

for the record.] 

Chairman SPECTER. Thank you, Professor Hasen. 

Our next witness is the Director of the American Civil Liberties 

Union Voting Rights Project, Laughlin McDonald. He has had a 

leading role in litigating the Voting Rights Act of 1965, being involved in almost three dozen lawsuits, and has won some of the 

most significant victories for the ACLU on issues such as enforceVerDate 0ct 09 2002 13:23 Jul 10, 2006 Jkt 028213 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28213.TXT SJUD4 PsN: CMORC
11

ment of one person-one vote. An author of five books, has more 

than a dozen articles on voting discrimination, he received his 

bachelor’s from Columbia and his law degree from the University 

of Virginia. 

Thank you for coming in today, Mr. McDonald, and the floor is 

yours. 

STATEMENT OF LAUGHLIN MCDONALD, DIRECTOR, ACLU 

VOTING RIGHTS PROJECT, ATLANTA, GEORGIA 

Mr. MCDONALD. Thank you very much, Mr. Chairman, and members of the Committee. 

On behalf of the ACLU, I would like to express our strong support for the pending bill, which would extend Section 5 and remedy 

the Bossier II and Georgia v. Ashcroft decisions. 

I also want to point out that the Section 5 provisions have been 

challenged a number of times, and all those challenges have been 

rejected. It was challenged in 1965 by six southern States in South 

Carolina v. Katzenbach. The 1975 extension of Section 5 was challenged by the city of Rome, Georgia, and was rejected by the Supreme Court. After the extension of Section 5 in 1982, Sumter 

County, South Carolina filed yet another challenge to the constitutionality of the statute, and it said essentially that the 1982 extension was unconstitutional because the trigger coverage formula was 

outdated. The three-judge court, however, rejected that challenge 

and held, ‘‘Section 5 had a much larger purpose than to increase 

voter registration in a county like Sumter to more than 50 percent.’’ 

People have talked about the Boerne decision, but I would echo 

Ted Shaw’s comments that every one of the so-called Boerne decisions expressly cites the Voting Rights Act and Section 5 as preeminent examples of Congressional authority to enforce the race 

discrimination provisions of the 14th and 15th Amendment, and it 

is especially worthy of note that the Supreme Court itself relied 

upon City of Boerne in 1999 in rejecting a challenge to the constitutionality of Section 5 made by the State of California. It held that 

legislation which deters or remedies constitutional violations can 

fall within the sweep of Congress’s enforcement power, even if the 

process that prohibits conduct which is not itself unconstitutional 

and intrudes into legislative spheres of autonomy previously reserved to the States. I sometimes think the Supreme Court does 

not write with the felicity and clarity that it ought to, and certainly 

‘‘congruence and proportionality’’ is a clumsy phrase. 

But I think also the sunset provisions of any extension of Section 

5, as well as its limited geographic application, would further argue 

for its constitutionality, and Boerne, for example, makes precisely 

that point, that termination dates or geographic restrictions tend 

to ensure Congress’s means are proportionate to ends legitimate. 

I think the case for extension of Section 5 has been documented 

very well by the various organizations and by the testimony of witnesses, both before the House and the Senate, and I will not repeat 

what is contained in those reports, but I would like to update the 

report that the ACLU filed by bringing to the Committee’s attention two recent developments in the courts that were not covered 

in the report. 

12

In May 5, 2006, just several days ago, the Court of Appeals of 

the Eighth Circuit reversed a decision of the District Court which 

had dismissed a vote dilution challenge to elections for the city of 

Martin in South Dakota, and it concluded, ‘‘Plaintiffs proved by a 

preponderance of the evidence that the white majority usually defeated the Indian-preferred candidate in Martin aldermanic elections.’’ And the Court also noted the ongoing history of intentional 

discrimination against Native Americans in Martin. Here is what 

the Court said: ‘‘For more than a decade Martin has been the focus 

of racial tension between Native-Americans and whites...Most recently, resolution specialists from the Justice Department attempted to mediate and end the claims of racial discrimination by 

the local sheriff against Native-Americans.’’ 

Martin is the county seat of Bennett County, which is located between Shannon and Todd Counties, both of which are covered by 

Section 5. I think the history of discrimination reported in that decision and other decisions in Indian country really underscore the 

ongoing nature of discrimination and strongly support the continuation of Section 5. 

There is a more recent lawsuit that has been filed just 2 weeks 

ago because Randolph County, Georgia, had implemented a voting 

change without complying with the Voting Rights Act. What they 

essentially did was to adopt a redistricting plan that took a black 

incumbent out of his majority black district, Mr. Cook, and put him 

into a majority white district. Well, given the existence of racial polarization in Randolph County, there was very little prospect that 

Mr. Cook, who had the overwhelming support of black voters, 

would be elected. 

We had a hearing before a single-judge court who granted a temporary restraining order, in effect enjoining the implementation of 

that change, and we have a hearing before a three-judge court later 

on this month. But all of that underscores continuing problems. 

And let me finally say that one of the most sobering facts to 

emerge from the report compiled by Congress is the continuation 

of racially polarized voting. I would suggest that everyone read the 

2002 opinion by the three-judge court in the Colleton County case, 

and it said that, ‘‘Racially polarized voting has seen little change 

in the last decade. Voting in South Carolina continues to be polarized to a very high degree.’’ 

And I would close, Mr. Chairman, by saying that the Supreme 

Court has called the right to vote a ‘‘fundamental political right 

preservative of all rights,’’ and the House and Senate bills will help 

ensure that that fundamental right continues to remain a reality. 

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

Chairman SPECTER. Thank you very much, Mr. McDonald. What 

was the situs of the case involving Mr. Cook? 

Mr. MCDONALD. Randolph County, Georgia, Your Honor. 

Chairman SPECTER. Georgia? 

Mr. MCDONALD. Yes, sir. 

Chairman SPECTER. We have 9 minutes left on a vote, so we will 

recess very briefly, and we will return just in a few minutes. When 

the votes occur, that is our No. 1 duty, even with the distinguished 

panelists we have here today. 

13

[Recess 10:10 a.m. to 10:30 a.m.] 

Chairman SPECTER. We turn now to the final witness on the 

panel, Professor Samuel Issacharoff, Professor of Constitutional 

Law at New York University; lengthy career in legal education, 

having taught at Columbia, Oxford, University of Texas, and University of Pennsylvania; published extensively, including the book 

‘‘The Law of Democracy: Legal Structure of the Political Process’’; 

a bachelor’s degree from State University of New York, law degree 

from the Yale Law School, where he served as an editor of the Yale 

Law Journal. 

Thank you for joining us, Professor Issacharoff, and we look forward to your testimony. 

STATEMENT OF SAMUEL ISSACHAROFF, REISS PROFESSOR OF 

CONSTITUTIONAL LAW, NEW YORK UNIVERSITY SCHOOL OF 

LAW, NEW YORK, NEW YORK 

Mr. ISSACHAROFF. Thank you very much, Chairman Specter and 

members of the Committee. It is a great honor to be here. I began 

my legal career as a law student watching this Committee’s deliberations in 1982 over the reauthorization of Section 5 and the 

amendment of Section 2, and it is a great— 

Chairman SPECTER. Did you write a comment for the Yale Law 

Journal on that? 

Mr. ISSACHAROFF. I did, Your Honor. 

[Laughter.] 

Chairman SPECTER. Don’t promote me, Professor. 

Mr. ISSACHAROFF. It is embarrassing to have one’s student note 

brought up. 

Chairman SPECTER. I wrote one myself. That is why I asked. 

Mr. ISSACHAROFF. Several members of the panel have already 

spoken of the tremendous responsibilities and the need for caution 

on the part of this Committee, and I fully agree with those views. 

I think that the reason for caution is twofold. 

First, as has been amply explained and demonstrated, the Voting 

Rights Act has been the most effective civil rights statute that the 

Congress has ever passed, and it behooves this Committee to act 

cautiously in preserving its legacy and making sure not to derail 

what has actually transformed the face of politics in the United 

States. 

I think that the second source of caution is that the Supreme 

Court has sent mixed signals as to what the responsibilities of the 

Congress are with regard to any civil rights statute pursuing the 

aims of the 14th and 15th Amendment. Part of the signal is from 

cases like City of Boerne and the congruence and proportionality 

standard. Other times, however, is in the Hibbs case, the Court has 

granted this Congress wide berth to pass a statute that seems appropriate to whatever this Congress believes needs to be done to 

enforce the Reconstruction Amendments. 

I think, however, that a major source of constitutional tension 

arises with the coverage formula for jurisdictions under Section 5 

of the Voting Rights Act. The bulk of the coverage of Section 5 

today is still triggered by voter turnout figures from 1964, a date 

that seems remote in the approaching 2007 expiration, and risks 

appearing constitutionally antiquated by the proposed next expiraVerDate 0ct 09 2002 13:23 Jul 10, 2006 Jkt 028213 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28213.TXT SJUD4 PsN: CMORC
14

tion date of 2032. By my calculation, in 2032 the youngest eligible 

voter from 1964 will be 86 years old. 

I have prepared written comments and submitted a copy of the 

Law Review article on some of the issues involved in reauthorization. I thought I would direct my comments briefly to five issues 

that I think this body might consider in reauthorizing Section 5 in 

a way that gives it greater constitutional protection and may also 

give it greater effectiveness. 

First, I would recommend that the unit of coverage be moved 

from the States to political subdivisions of the States. I think that 

virtually every objection from the Department of Justice over the 

last 5 years, or maybe even more, on matters not having to do with 

redistricting has been directly to local jurisdictions and not to the 

States. 

Second, I think that is important, as Professor Hasen said a 

minute ago, to liberalize the bailout provisions. I think that moving 

the scope of coverage from the States to the political subdivisions 

would have that effect. I think that it also would help the Act if 

bailout provisions were more objective based upon lack of objections 

by the Justice Department or lack of any affirmative lawsuits 

under Section 2 or other claims of minority vote harassment. 

Third, I think that if we were to start from scratch today, we 

might consider a different kind of administrative mechanism other 

than the preclearance, and one way of thinking about this is that 

preclearance is extremely onerous and applies an ex ante and 

ahead-of-time review much like the FDA to any proposed change. 

One could also imagine a Securities and Exchange Commission 

type reporting system that covered jurisdictions who have not actively violated the Act in the last 5 years, or some defined period, 

would be required to post on a website any proposed change and 

the reasons for it and be subject to either affirmative litigation 

under Section 2 or simply a false statement litigation. 

Fourth, I would expand the jurisdictional reach of Section 5 by 

allowing this disclosure regime to be applied to any jurisdiction 

that has been found guilty of a Section 2 violation or that has engaged in affirmative actions against minority voters. 

And, finally, I think that there is reason for concern with the 

language on the overruling of Georgia v. Ashcroft, and I think that 

the reason for the concern is that the current statute faces a climate very different from that in 1965 in that you have real bipartisan competition in most of the covered jurisdictions today, which 

means that certain features of conduct, State conduct, will not go 

by unattended, will not simply pass muster without anybody realizing. And I would recommend removing statewide redistricting 

from Section 5 overview altogether. That has been an area of some 

controversy with the Department of Justice, and it has been an 

area where there is plenty of litigation in every redistricting anyway, and I don’t think Section 5 worked particularly effectively 

there. 

Thank you. 

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

Chairman SPECTER. Thank you very much, Professor Issacharoff. 

15

Focusing on the standards from Boerne III, there must be a 

showing that it is ‘‘recent in time and persists to the present day.’’ 

Professor Davidson, what is the best evidence that discrimination 

persists to the present time? I am going to ask every one of you 

that question because the critical aspect of our record is to show 

just that. 

Professor Davidson? 

Mr. DAVIDSON. One example of it is certainly the large number 

of Section 5 objections since 1982, and it is true— 

Chairman SPECTER. Did they persist right up to the present 

time? 

Mr. DAVIDSON. There have been very few in recent years. There 

are a number of possible explanations for that. I think some of 

them have been mentioned this— 

Chairman SPECTER. Well, I am not looking for explanations as to 

why not. I am looking for evidence as to what is. What is the best 

evidence of discrimination right up to the present time? 

Mr. DAVIDSON. I had the privilege of attending several of the—

in fact, most of the hearings that the National Commission on the 

Voting Rights Act held this past year, regional hearings around the 

country. And I was struck at every one of them by the testimony 

of people talking about racially polarized voting in their areas, 

talking about difficulties that some members of minority communities had faced at the polls. 

Chairman SPECTER. So you think it continues right to the 

present time. 

Mr. DAVIDSON. Yes, sir, I do. 

Chairman SPECTER. I only have a few minutes, so I want to move 

to Mr. Shaw with the same question. Best evidence that it exists 

now, Mr. Shaw? 

Mr. SHAW. I think the record as it stands now is replete with examples of ongoing discrimination. Let me point to one, and also, I 

want to use it as an opportunity to address one of the suggestions 

that Professor Issacharoff has made. 

In Louisiana, in the last decennial redistricting, or after the last 

decennial redistricting, Louisiana, the State of Louisiana, sought 

preclearance of its plan for the State House of Representatives and 

filed the Declaratory Judgment Act in the D.C. District Court rather than seeking preclearance. And among the things that it was 

trying to do, it wanted to have a redistricting plan that eliminated 

one black opportunity district in Orleans Parish. The State argued 

that there ought to be proportionate representation for white voters 

in Orleans Parish, even though it was not arguing that black voters ought to have proportionate representation statewide. There 

was no replacement district that was created. Its novel theory was 

based in part upon population loss in Orleans Parish over the prior 

decade. 

That plan ultimately did not work. It was not successful. But it 

was a statewide attempt that would have been discriminatory and 

it would have harmed the voting rights of African-Americans. And 

I also point to it as an example of how we still have these problems 

on the statewide level. 

I agree also with Professor Davidson about the importance of racially polarized voting, which people underrecognize in terms of its 

16

significance and how it interacts with redistricting schemes and 

ways that perpetuate discrimination. 

Chairman SPECTER. Did you want to make a comment on what 

Professor Issacharoff said? 

Mr. DAVIDSON. Pardon me? 

Chairman SPECTER. Did you want to make a comment on something that Professor— 

Mr. DAVIDSON. Yes. Well, I tried to do it just now. The point I 

am making, is that Professor Issacharoff’s view is an interesting 

idea, but I strongly disagree with the notion that State level redistricting should drop out of Voting Rights Act protection. The Louisiana redestricting is an example of what one State was doing that 

was a clear violation of the Voting Rights Act. 

Chairman SPECTER. My time is limited, so what I am going to 

ask Professor Hasen, Mr. McDonald, and Professor Issacharoff to 

do is to submit in writing the best evidence that you know that the 

discriminatory practices exist right up to the present time. I want 

to have as strong a record as we can on that point. 

Then I would also ask you to submit one other point in writing. 

We are a little constrained on time today because we have the 

Brett Kavanaugh hearing this afternoon. We have an extraordinarily busy Judiciary Committee schedule, and we are also preparing for the immigration work next week. But what I would like 

you to do is address the question of the Supreme Court standard 

on Boerne of congruence and proportionality as to whether there is 

anything that the Congress can do legislatively. 

I am very much concerned about the Supreme Court striking 

down our acts, as they did in Morrison, because of our ‘‘method of 

reasoning.’’ And Justice Scalia has been very critical of the proportionality and congruence test, saying that it is the Court’s effort to 

make Congress do our homework, treating us really like schoolchildren. And it is such an ephemeral and undefinable test which 

leads to policy-driven decisions. I would like you scholars to give 

the Committee suggestions, if you have any, as to how we deal 

with that or if we can deal with it in a legislative context. 

Senator Feingold? 

Senator FEINGOLD. Yes, thank you, Mr. Chairman. 

Mr. McDonald, we have heard testimony from Professor Hasen 

that there is an ‘‘evidentiary problem’’ in terms of reauthorizing 

certain expiring provisions, and that it will be difficult to produce 

evidence of intentional discrimination by the States that can withstand a Supreme Court challenge. 

Now, from what I have heard, the testimony before the House 

Judiciary Committee as well as reports by groups like the ACLU 

provide compelling evidence to the contrary. Given your extensive 

work on current voting rights litigation, could you please share 

your views on this assertion? 

Mr. MCDONALD. Well, one of the things that we tried to do was 

to make the very best case that we could for the need to extend 

Section 5, and we attempted to do that not by making, you know, 

statements on our behalf but by having the Department of Justice’s 

findings be presented to the Committee, by having the Court’s findings be presented to the Committee. And one of the critical things, 

I think, is that people need to talk to minorities in these commuVerDate 0ct 09 2002 13:23 Jul 10, 2006 Jkt 028213 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28213.TXT SJUD4 PsN: CMORC
17

nities. I mean, go to Randolph County, Georgia, and hear Bobby 

Jenkins, who is the plaintiff in this recent lawsuit that we filed, 

and he will tell you about the reality of racial division and polarization. Talk to Beulah Dollar, who is a black woman elected from a 

majority black district in Telfair County, Georgia. I had a long conversation with her the day that I left Atlanta on Monday about a 

new voting practice being implemented in that jurisdiction, and I 

wrote a letter pointing out to the judge of probate that they were 

implementing what probably was a change in voting that needed 

to be precleared under Section 5. 

But in our report, we talked about the approximately 293 cases 

that we have been involved in since 1982 and have let people who 

are plaintiffs in those cases speak for themselves, report the findings of the courts, and the stipulations that parties have made. I 

think it is a very strong record for the continued need for Section 

5. 

Senator FEINGOLD. Mr. Shaw, Professor Issacharoff testified that 

legislation that is hostile to minority interests will face ‘‘political 

objections’’ as well as litigation under either Section 2 or the Constitution. This seems to be shifting the burden back to individuals 

to fight for their rights as opposed to keeping the burden on those 

charged with crafting the law for jurisdictions with a history of discrimination. 

Many advocates of the Voting Rights Act have made the case regarding the importance of deterrent effects of the expiring provisions of the Act, in particular, Section 5 and Section 203. Can you 

explain this argument to us? 

Mr. SHAW. Senator, the testimony that we have heard about concerns with respect to Section 5 and a number of Section 5 objections recently does not capture the entire field that is in play. So, 

for example, the Department of Justice entertains requests for information from jurisdictions that sometimes obviate the necessity 

of a Section 5 adverse finding. And that is still the Act working in 

a powerful way. 

The fact is, from what we understand, that also some jurisdictions do not engage in actions they otherwise might take that 

would have a discriminatory, retrogressive, or dilutive effect because of the existence of Section 5 and the preclearance requirements. And, of course, while my testimony did not focus on Section 

203, we also believe that Section 203 ought to be extended because 

it has helped to extend democracy in a meaningful way. 

But the main point here that I am trying to make is that both 

with respect to the effect of the existence of Section 5 on jurisdictions that otherwise would engage in discriminatory activities and 

with respect to the request for information, the Act works powerfully in ways that may appear under the radar screen that may not 

appear easily in statistics. 

Senator FEINGOLD. Thank you, Mr. Shaw. 

Back to Mr. McDonald. You have made the point that objections 

by the Department of Justice are not necessarily the best measure 

of whether there is a continued need for expiring provisions, such 

as Section 5. Is there any way to measure the deterrent effect of 

these provisions? And are there other ways of gauging whether 

they are still needed? 

18

Mr. MCDONALD. Well, some jurisdictions openly say that they are 

going to make a voting change, but in doing so they must comply 

with Section 5. I know the State of Georgia just last year made 

some changes to its redistricting plan, and they adopted a resolution that they would comply with Section 5. And the jurisdictions 

just do not want to have that struggle. 

Nobody has really mentioned another critical role that Section 5 

plays, and that is, the courts routinely apply it. Redistricting is 

such a politically charged issue that so many States are simply unable to do it. South Carolina has not redistricted itself constitutionally in three decades. Georgia was unable to do it this time 

around. So the courts ended up doing it, and all of those courts in 

South Carolina and in Georgia expressly said that in adopting 

plans they would comply with the non-retrogression standard of 

Section 5 and the racial fairness standard of Section 2. 

So Section 5 plays a very important role that does not necessarily 

have only to do with preclearance decisions by the Attorney General. 

Senator FEINGOLD. Thank you, Mr. Chairman. 

Chairman SPECTER. Thank you very much, Senator Feingold. 

Senator Sessions has graciously agreed to chair the balance of 

this hearing, so I turn the gavel over to him. 

Thank you very much, gentlemen, for coming in. Your testimony 

is very, very important. I regret to leaving a little early, but we 

have the Kavanaugh hearing on tap for 2 o’clock this afternoon. 

Thank you very much, Senator Sessions. 

Senator SESSIONS. [Presiding.] Well, Mr. Chairman, we know you 

are not afraid of work, so you are doing something, I am sure. 

[Laughter.] 

Senator SESSIONS. No one works harder at keeping this Committee going and dealing with the issues we have to deal with. 

Chairman SPECTER. Thank you. 

Senator SESSIONS. You know, as I indicated in my remarks, there 

was very, very real discrimination, particularly in the South, and 

perhaps other areas of the country, but certainly in the South, for 

a number of years, and over these 40 years a lot has changed. It 

really has. 

I would like to ask, Mr. Hasen, if you would explain the purpose 

or the theory, as you understand it, for the fact that Section 5 was 

not permanent at the time it passed and how we should think 

about that today in your view. 

Mr. HASEN. Thank you, Senator. Section 5 was put in place by 

Congress after it became clear that a number of jurisdictions with 

a history of discrimination in voting on the basis of race were playing a kind of cat-and-mouse game where the Federal Government 

would come in, challenge a particular voting rule. That voting rule 

would then be changed to a different voting rule, which would also 

be discriminatory. And the purpose of the preclearance provision 

was to put the burden on those jurisdictions that showed a history 

of discrimination to justify any changes in their laws to show that 

they did not have a discriminatory purpose or effect. 

The reason that the provisions were set up as temporary is because of the unprecedented nature of the kind of remedy that 

preclearance is. Never before or since has a State or unit of a State 

19

had the requirement to have to get permission to change its laws 

from the Federal Government. Some have analogized it to a kind 

of Federal receivership. So it was what the Supreme Court in the 

Katzenbach case called ‘‘strong medicine.’’ And so given that it was 

strong medicine, Congress decided, wisely, I believe, that it should 

be a temporary measure and that by having these periodic sunsets 

and the ability for these hearings, it gives a chance for Congress 

to evaluate whether the strong medicine is still necessary. 

And so I think that as you go forward and think about extension, 

it would be worthwhile to look at the evidence and determine how 

far should extension go, both geographically and temporally. 

Should the same provisions that were in place based on data in 

1964 be in place in the future for the next 25 years, up until 2031? 

And should the same areas be covered? 

So I think it is Congress’s obligation now to decide whether that 

strong medicine should continue in the same form as it has or 

whether changes are necessary given changes that have occurred 

on the ground in these covered jurisdictions and in the rest of the 

United States. 

Senator SESSIONS. Thank you for saying that. I think it is important. For example, we do have—tend to have racially polarized voting, I believe as Mr. McDonald said. But my home city of Mobile, 

a majority-white city, just elected an African-American mayor last 

month. And he mounted very aggressive campaign, and he had biracial support and was funded aggressively and able to compete on 

TV and that kind of thing and won the race with a rather significant vote. 

So I think there is progress occurring out there, and whether 

things are perfect or not—we know that is not so. We know we are 

not perfect, and we still have problems. 

With regard to some of the matters that I hear complaints about 

from district attorneys and county attorneys, maybe, Mr. Hasen, 

you would comment. For example, if you move a voting place from 

a school on one side of the street to the courthouse on the other 

side of the street, the county or the governmental entity must petition the Department of Justice to approve that and demonstrate 

that it did not have an intent to discriminate. And at some point, 

you know, people begin to get a little irritated about that. I mean, 

they had no problems. They may have African-American officials. 

Maybe every person in the county—all office holders could be African-Americans, as some are. Are there things like that that you 

think we ought to consider in terms of making the Act fit the challenges of today rather than problems perhaps in the past? 

Mr. HASEN. Well, you are right that one of the things about the 

preclearance provision is that it applies to every voting change, no 

matter how minor or major, so everything from moving a polling 

place across the street to a statewide redistricting. And so there 

are a number of creative ways that you could think about making 

changes. 

One thing that I think would go a long way toward helping the 

constitutional case and also take off some of the burden in a lot of 

these jurisdictions is to ease the bailout requirements. For example, if the Department of Justice was required to proactively go 

through, pick out those jurisdictions that meet the bailout criteria, 

20

and say, you know what, you have no history of discrimination, you 

have taken steps to increase minority voter turnout and participation, we think that you should apply for bailout. 

If the burden was put on the Department of Justice rather than 

on the States, the States just—they are used to—the covered States 

are used to preclearance. They know how to do that. Bailout could 

be made a lot easier, and this would actually also help the constitutional case showing that the law is going to then be focused on 

places that continue to have a history of discrimination. So you can 

really use the bailout to winnow out those places that have made 

significant progress on the basis of race, and so that those places 

that are doing well will not have to go through the kind of 

preclearance for these minor types of changes. 

Senator SESSIONS. I could not agree more. I think that really 

makes sense. And just briefly, Professor Davidson, you have studied the history of this. I cited the numbers that in Alabama, according to the Census Bureau, in 2004 a larger percentage of AfricanAmericans voted than whites. I guess we would have to conclude 

that is a fairly significant historical event. Would you not agree? 

Mr. DAVIDSON. Yes, sir. I think there is no question but that African-Americans have made a great deal of progress over the last 

40 years, and one of the things that several people at our hearings 

said was essentially to acknowledge that fact. I don’t think there 

are very many people who would deny that progress has been 

made. 

I think sometimes it is important to take a historical look at our 

race problems in the United States, and if you go back to the 

founding of our Republic, which was—what?—in 1790 or somewhere around there, up to the present, the current period from 

1965 forward has been the longest period in which African-Americans have enjoyed relatively free access to the polls and the right 

to vote—some, what, 40 years out of about 220 years in American 

history. 

And I think that fact is in the minds of a lot of people. Is 40 

years really long enough given the history of vote discrimination 

and other kinds of discrimination in this country? 

Senator SESSIONS. And I would say this: There are a lot of African-American citizens alive in our State today that felt that discrimination. It is not an academic matter to them. And they are 

sensitive about it to this very day, and I think we should recognize 

that. And that is why I think most of us are prepared to accept and 

support a reauthorization, as long as—but I think in the course of 

it, if we can make it better, we should do that. 

Senator Cornyn, I would recognize you, the former Attorney General of Texas, who has had to wrestle with some of these issues, 

I am sure. We did in Alabama. 

Senator CORNYN. Thank you. Thank you, Mr. Chairman. And, 

again, thanks to the panel for being here. 

I am struck by some of the—well, first of all, let me just say, I 

cannot think of any greater self-inflicted wound that the country 

could have inflicted upon itself than what this country did at its 

very founding to African-Americans. And we have, as Professor Davidson notes, had a checkered history in terms of improving equal 

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21

zens regardless of race or ethnicity or heritage. And I agree, we all 

want to remain vigilant in that effort. 

The process, I guess, by which we are getting started, though, 

concerns me a little bit. There is a bill that has actually been filed 

that makes findings, and now we are only beginning to gather the 

evidence. I guess from my previous experience on the bench, I am 

accustomed to getting the facts before we make findings and then 

reach conclusions. But be that as it may, I want to make sure that 

we are not indulging in some stereotypes but, rather, looking at 

what the facts are as they exist. 

I was struck, Professor Hasen, by the chart that you held up 

demonstrating that between 1998 and 2002, that when it came to 

preclearance requests by various political subdivisions, only 0.05 

percent received objections by the Department of Justice. Did I interpret that correctly? 

Mr. HASEN. Yes, that is right. 

Senator CORNYN. And if we look at the slope of that line there, 

is it fair to conclude that that represents improvement in terms of 

the compliance of political subdivisions with the Voting Rights Act? 

Or would you— 

Mr. HASEN. Oh, it absolutely shows compliance. What it shows 

is that Section 5 has served as a deterrent to many actions that 

otherwise could have been discriminatory. 

Senator CORNYN. OK. And you mentioned in your opening statement, Professor Hasen—and then I want to turn to Professor 

Issacharoff because he alluded to this as well, there are triggers in 

the bill that go back to 1964 and 1968 and 1972, and you would 

certainly agree that the circumstances were different, and let’s just 

say worse, when it came to protecting the franchise of minority voters back in those years than exist today. Would you agree with 

that? 

Mr. HASEN. I think everyone on the panel would agree with that, 

yes. 

Senator CORNYN. And so I guess, Professor Issacharoff, you mentioned a number of, I think, very interesting ideas that we ought 

to consider seriously with regard to how the preclearance requirements should be addressed. But I guess for the members of the 

Committee and those who are not as versed as the panel is in the 

differences between Section 5 and Section 2, is there anything 

about Section 5 that offers a different standard of protection to minority voters than is otherwise provided in the Voting Rights Act 

in general? Or is it simply a matter of getting two bites at the 

apple, so to speak, one in the preclearance process and then one 

through litigation? 

Mr. ISSACHAROFF. Well, there are several differences, Senator. 

First, of course, Section 2 is nationwide in its coverage, and Section 

5 applies only to a select number of jurisdictions. 

I think that the Supreme Court in the Beer v. United States case 

set up very different standards between the two provisions or between the Constitution and Section 5 of the Voting Rights Act. So 

that Section 5, as presently construed, applies primarily to retrogression, to steps backward, and does not reach under the Bossier 

Parish II decision, does not necessarily reach intentionally discriminatory conduct, and certainly does not reach everything that 

22

would be violative of Section 2 if it was simply a carrying forward 

of the prior regime, of whatever was in place beforehand. 

I think more significantly what Section 5 does is it imposes a 

freeze upon State conduct. It operates under the assumption that 

State conduct is likely to be discriminatory unless proven otherwise 

and prohibits the States or their subdivisions from acting. And this 

was absolutely critical to the whole structure of the Voting Rights 

Act initially because Section 5 piggybacked on Section 4, which was 

a suspension of basically as many of the known obstacles to voting 

as could be fashioned in the statute, things like the literacy test, 

and then Section 5 was intended to freeze in place what the voting 

system looked like absent those discriminatory obstacles. 

Section 5 has evolved. I think one of the interesting features is 

that we are today more concerned with vote dilution than vote exclusion as such. If you look at the Department of Justice statistics 

in the 6 years beginning in 1997, there were something on the 

order of, I think, 46 or 42 objections lodged by DOJ. Only six of 

them had to do with voter exclusion, and the remainder had to do 

with vote dilution. 

So the Act keeps in place that freeze. We have tended to think 

of vote dilution being more a Section 2 matter, particularly after 

the 1982 amendments, and Section 5 now has to be a little bit retrofitted to deal with the new political realities. 

Senator CORNYN. Well, you touched on an issue that I think concerns some people, and that is, the presumption that the States 

that are covered by Section 5—I guess it is—is it roughly nine 

States plus some other counties and political subdivisions around 

the country. 

Mr. ISSACHAROFF. Basically yes, Senator. 

Senator CORNYN. That there is some presumption that unless 

Congress imposes a preclearance requirement on those jurisdictions, somehow they will engage in intentional back-sliding when 

it comes to the voting rights of minority voters. And I could tell you 

that, you know, I was not alive—well, I guess I was alive, but I 

was very young back in 1964. But I think as we have all acknowledged, we have had a tremendous change in the culture, and in 

terms of attitudes, I cannot imagine any set of circumstances under 

which there would be some back-sliding or reversion if Section 5 

were not to require preclearance. But, rather, I do believe that 

given the amount of litigation that exists today on the Voting 

Rights Act in literally every step of the proceeding, we ought to be 

concerned with providing equal and uniform rules that can be applied nationwide. 

I see my time has run out. I will end here. Thank you, Mr. 

Chairman. 

Senator SESSIONS. Our Ranking Member, Senator Leahy? 

Senator LEAHY. Thank you, Mr. Chairman. And I am sorry to be 

in and out on this hearing, because I think it is an extremely important one, and I appreciate all of you being here. 

Professor Davidson, you know, when I look at ‘‘Quiet Revolution 

in the South’’—and most of the people I have talked with, and certainly my staff have talked with, say that is as important a book 

as we are going to find on the subject. 

Mr. DAVIDSON. Thank you. 

23

Senator LEAHY. I think if we read that, we can all agree there 

have been improvements in minority access to voting since the 

original Voting Rights Act was passed in 1965. Some would say we 

no longer need it as a result of that. 

I was 25 when it passed, and I had only been able to vote for 

4 years, and it was not an issue in my State of Vermont. But notwithstanding the progress, what risk do we face if we let the expiring provisions lapse? I mean, are we so solid in the gains that there 

is no risk of back-sliding? 

Mr. DAVIDSON. If I could give you an anecdote from my home 

State of Texas—and I was amazed as I read in the newspapers as 

this unfolded. But in Waller County, Texas, which is the home of 

the historically black university, Prairie View, the town surrounding that university is still majority black. In the run-up to 

the 2004 elections, a couple of black Prairie View students ran for 

the county commissioner’s court, the Democratic primary nomination. And the white district attorney, a former State district judge, 

announced that any Prairie View students—that Prairie View students voting who did not have parents living in that county, if they 

voted in that election they would be prosecuted. 

Prairie View figured very importantly in Section 5 litigation in 

the 1970’s when the Supreme Court held that students living in 

Prairie View as college students could vote in that county, even 

though their parents lived in other counties. But in spite of that 

fact, why, the students were threatened with prosecution, and the 

NAACP chapter of Prairie View A&M filed a Section 5 enforcement 

action, and the district attorney backed down. 

Senator LEAHY. I take it by that you feel that we ought to keep 

Section 5. 

Mr. DAVIDSON. Yes, I do. That is just one anecdote, I realize, 

but— 

Senator LEAHY. I know there are many others, and I was thinking that—I think I know what Mr. Shaw’s response would be on 

this, but we have an extensive record—11 hearings in the House 

of Representatives, 50 practitioners testified, elected officials advocates, academics, State-by-State reports detailing discrimination in 

Section 5, and 203 covered jurisdictions since 1982, the Voting 

Rights Project’s 800-page report, the National Commission reports 

and so on. We had 30 other witnesses here. 

Based on all this record, do you believe the Congress has the 

power under the 14th and 15th Amendments to reauthorize the expiring provisions of the Voting Rights Act? 

Mr. SHAW. Senator, I believe that Congress does have that 

power. As we have talked about here, we are all concerned about 

the Boerne line of cases with respect to the issues of federalism 

that it raises. But there are also issues of separation of power, and 

I think that Congress certainly has the power to enact this legislation based on this record. 

Senator LEAHY. And would you also agree with Professor Davidson that this is not the time to let it expire? 

Mr. SHAW. That is right. We have made tremendous progress, 

but everyone here agrees that there is still work to be done. 

Senator LEAHY. I realize my time is almost up, but I am going 

to actually submit some questions to each of you. But, Mr. McDonVerDate 0ct 09 2002 13:23 Jul 10, 2006 Jkt 028213 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28213.TXT SJUD4 PsN: CMORC
24

ald, in the Voting Rights Project report, you detailed a couple recent examples, modern examples, one in Martin, South Dakota, in 

which the Eighth Circuit found last week—and I am not going to 

get into ancient history, but last week found a history of ongoing 

intentional discrimination against Native Americans. You cite another very recent example in Randolph County, Georgia, intentional discrimination against black voters in that county. It is a 

county which has a history of going from one tactic to another, dating from before the Voting Rights Act to the present. 

From a constitutional point of view, are these examples that Congress can rely on to support the extension of Section 5? 

Mr. MCDONALD. I certainly think so, Senator. And as people 

were responding to your question, I just recall that the State of 

Georgia filed a brief in the Supreme Court in Georgia v. Ashcroft, 

and that would have been—I hope I am getting my dates correct, 

but several years ago, 2003, in which they made quite extraordinary arguments indicating what would happen if we did not have 

Section 5. 

They argued, for example, that we should abolish the retrogression standard. They argued in the Supreme Court that racial minorities should never be allowed to participate in the Section 5 

preclearance process. This is quite an extraordinary argument 

given the fact that racial minorities were the very group for whose 

protection Section 5 was passed. 

And then they argued that you could abolish all the majorityblack districts consistent with Section 5. But you look at a State 

like Georgia, I mean, there have been some people who have won 

an election, minorities, in jurisdictions that were not majority 

black, but every member of the State Senate is elected from a majority-black district. Probably 95 percent of those in the House of 

Representatives were elected from majority-black districts. 

If you let the State do what it said it could do in its brief in Georgia v. Ashcroft, it would have a devastating impact on the ability 

of minority voters to elect candidates of their choice. That is the reality. 

Senator LEAHY. But you are not eager to let Section 5 lapse? 

Mr. MCDONALD. I do not think that the Georgia fox should be 

put in charge of the voting rights henhouse, Senator. 

Senator LEAHY. Thank you. 

My other questions, I see, you know, I have not had a chance to 

ask Professor Hasen or Professor Issacharoff, who has helped me 

on many, many other occasions with his erudition, and I will have 

to submit those for the record. But I thank the Chairman for letting me slip in here. 

Senator SESSIONS. Thank you. 

Senator LEAHY. Senator Cornyn, I went a little bit over time, and 

I apologize for that. 

Senator SESSIONS. That is all right. 

Senator LEAHY. It is an important subject. 

Senator SESSIONS. It is, and, Mr. McDonald, you know, this Act 

is a complex Act, and it raises quite a number of issues with regard 

to Georgia. I think it is important to note that the individual who 

filed the brief was Mr. Baker, was it not, the Attorney General? 

Mr. MCDONALD. He is African-American. 

25

Senator SESSIONS. African-American, Democratic, statewide 

elected Attorney General, and he had some concerns of a fairly 

technical nature, and I am not sure it is fair to characterize it quite 

the way you did. I am sure he would take a different spin on it if 

he were here today. 

Mr. MCDONALD. Yes, Senator. I would just say that people who 

are—he is an elected official, a politician, and they are subject to 

all kinds of pressures. I could simply point out that during the Reconstruction years, there were blacks who voted for racially segregated schools, who voted for poll taxes, and they did so for a lot 

of complex reasons. And the District of Columbia opinion in Georgia v. Ashcroft addresses that whole issue. 

But I think that the mere fact that a black is in the decisionmaking process does not and should not shield from independent 

constitutional review the acts that a State takes. 

Senator SESSIONS. Well, I am not sure Mr. Baker would appreciate suggesting that he was less than aggressive to protect the interests of African-Americans in Georgia, which I think you just did. 

And I think you are suggesting that for political reasons he did not 

follow the law. I think it is a complex thing. We could spend 30 

minutes talking about the D.C. filing of that case and the jurisdiction. But I just wanted to raise that point. 

Let me ask Mr. Shaw and maybe some of the others here about 

the Voting Rights Act which identifies those jurisdictions subject to 

additional oversight by looking at voter turnout in the Presidential 

elections of 1964, 1968, and 1972. We have heard testimony about 

why we need to keep those dates in. Would you support adding the 

Presidential election of 2000 and 2004 in order to pick up jurisdictions that may have begun discriminating since the 1970’s? 

Mr. SHAW. Certainly, Senator, we believe that we should not 

have a cutoff date with respect to problems of discrimination that 

inform the Voting Rights Act reauthorization. 

With respect to those other dates and the trigger that originally 

was in place, I want to emphasize that that trigger served the purpose of identifying the jurisdictions where the problems originally 

existed. I believe that the record that we have now in some ways 

eclipses the old trigger to the extent that what we have done is 

looked at jurisdictions that have been covered and asked the question of whether there are continuing problems in those jurisdictions. And that is the basis on which the jurisdictions that are covered should continue to be covered. 

Senator SESSIONS. Mr. McDonald, would you share your thoughts 

on that, too? 

Mr. MCDONALD. Well, I think I share Ted Shaw’s discussion. We 

do have a bailout, and for some reason, not many jurisdictions have 

attempted to bail out. And I think that may be for a combination 

of reasons. They do not think they would meet the standard, that 

being covered by Section 5 is really not that burdensome. But if 

there are jurisdictions that have clean records, there is plainly a 

procedure for them to bail out, which is another factor, I think, 

that underscores the constitutionality, the congruence and proportionality of Section 5. 

Senator SESSIONS. Professor Issacharoff, you suggest that, ‘‘The 

bailout provisions in Section 4(a) appear unduly onerous and not 

26

sufficiently geared to actual legal violations’’ and recommend liberalizing it. How would you suggest changing that provision? And I 

would just note that it does strike me as odd, as Mr. McDonald 

suggested, that so few have taken advantage of it. It must be some 

problem here that is delaying that. Would you share your thoughts 

on it? 

Mr. ISSACHAROFF. To my knowledge, there are only three counties in Virginia that have availed themselves of the bailout, at least 

in the last 20 years. I maybe have missed some, but on the Justice 

Department website, those are the only ones I could identify. 

It seems to me that the bailout was not intended to be acted 

upon with any ease, and that was part of the original implementation strategy of Section 4 and Section 5 together. The difficulty— 

Senator SESSIONS. Was the bailout a part of the original Act or 

the reauthorization? 

Mr. ISSACHAROFF. It was a reauthorization. But it was integrated 

into the entire Section 4, Section 5 structure. It seems to me the 

difficulty with the bailout is that there are provisions which have—

at least appear to be difficult for jurisdictions to meet, that the affirmative steps taken are ill-defined and hard to quantify. It is 

hard to figure out exactly what fits in there. I know that some jurisdictions in recent years have started to try to pursue this, the 

Virginia cases that I am aware of. It appears to me that if there—

and my suggestion is that if there were a lesser administrative 

type of review available, something between full preclearance coverage and no coverage at all, that one could go to a bailout structure that was quite objective, absence-of-objection letters or absence of violations over a defined period of time, and make that 

much more of an administrative matter rather than a litigated 

matter. I think that right now jurisdictions that would try to bail 

out are, for the most part, looking at a litigated path. And I think 

jurisdictions are probably gun-shy about that. 

Senator SESSIONS. Well, it raises—certainly the counties spend a 

lot of money on lawyers, I’ve got to tell you. You know, they have 

to hire a lawyer to do their preclearance petition, and that may be 

as simple as moving a balloting place across the street. It could involve the most minute change in the ballot itself. There are a lot 

of things that they are required bureaucratically to do, and like you 

note, there are counties in Alabama and throughout the country 

that have never had—throughout the coverage of Section 5—who 

have never had a history of discrimination and some have certainly 

demonstrated since 1965 that they have no history of it. And perhaps that would be a step that we could take that would recognize 

and affirm areas of the country that are doing things correctly. 

Would you agree? 

Mr. ISSACHAROFF. In part, Senator. I think the difficulty is that 

while these things seem trivial, things like moving the polling place 

across the street or changing the ballot a little bit, the history of 

disenfranchisement, particularly at the time of 1965, indicated that 

each and every one of them had been tried at some time or other 

in some place or other as a mechanism to frustrate the electoral 

aspirations of black Americans. 

Senator SESSIONS. I am well aware of that. I really am. And I 

fully understand that. However, the district may be 100 percent AfVerDate 0ct 09 2002 13:23 Jul 10, 2006 Jkt 028213 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28213.TXT SJUD4 PsN: CMORC
27

rican-American virtually or 100 percent white, or the whole area 

may be such, and there is just no apparent argument that can be 

made in some of these instances that it had any intent to discriminate. Yet they have to go through this petition process. 

Mr. ISSACHAROFF. They do. It is an administrative burden. I 

agree with you on that. And I think that from my perspective the 

Act would be strengthened and its constitutionality would be 

strengthened if there were more recognition of what has transpired 

over the past 40 years, if there were more congruence now, to use 

the court’s language, if there were more congruence between the 

actual performance of these counties or political subdivisions and 

their continued coverage. And part of that could be addressed with 

an eased bailout provision. 

Senator SESSIONS. Senator Cornyn? 

Senator CORNYN. Professor Issacharoff, I am aware of the argument—and I would like to have you comment on it—that when it 

comes to redistricting, there are sometimes strategic alliances that 

are struck between African-Americans and Republicans and to the 

detriment of white Democrats. Are there unintended consequences 

of the Voting Rights Act on redistricting that we ought to be aware 

of and address during the course of this reauthorization? 

Mr. ISSACHAROFF. I think the most significant transformation in 

the covered jurisdictions since 1965 has been the erosion of the 

Democratic Party monopoly in these States. Almost all of them 

were one-party Democratic States in which there was no effective 

competition. I think that the Voting Rights Act, both Section 5 and 

Section 2, broke up the lockhold. It made districted elections possible, which paradoxically facilitated the election of Republicans in 

many of these jurisdictions and facilitated the rebirth of the Republican Party in many parts of the South. 

The Voting Rights Act applied to statewide redistricting has been 

a tremendous source of temptation for manipulation in my view by 

the Justice Department, unfortunately, and I say ‘‘unfortunately’’—

I refer to my own experiences in Texas, Senator. In the 1990’s, I 

represented the State of Texas in its preclearance fight over its 

Congressional redistricting. Texas has gained three additional Congressional seats and created out of those three additional majority/

minority districts. The Department of Justice objected. It was difficult to figure out what the retrogressive basis for the objection 

was, but while the objection was in place, there was an effort to 

redistrict through a court in Texas that would undo the plan that 

the State had put forward. At the time it was the Democratic 

Party. 

One of the sources of objections was that the district should have 

been more concentrated in their minority population, what the Supreme Court addressed quite caustically in cases like Miller v. 

Johnson. I think that through the 1990’s there was a view that 

Section 5 required creating districts that were as packed with African-American voters as possible. This had the effect of diminishing 

in my view, the effectiveness of the black franchise, diminishing in 

many States the electoral prospects of the Democratic Party, and 

there was a bit of a misshaped alliance between the interests of Republicans in many of these States and the interests of some minority voters in creating super-concentrated minority districts. 

28

Mr. SHAW. Mr. Chairman, may I get a shot at that? 

Senator CORNYN. Sure, Mr. Shaw. Go ahead. 

Mr. SHAW. Thank you, Senator. 

Senator SESSIONS. It is Senator Cornyn’s time. 

Mr. SHAW. Pardon me? 

Senator SESSIONS. It is Senator Cornyn’s time. He recognized 

you. 

Senator CORNYN. We would be glad to hear from you. 

Mr. SHAW. Well, thank you. Senator, just quickly on that, on the 

issue of unintended consequences of the Voting Rights Act, this is 

a function in part of racially polarized voting, and I think it is important to keep our eye on that continued reality. There are people 

who do blame African-American voters for the partisan losses of 

the Democratic Party. My view on this, our view on this is plainly 

that we in a nonpartisan way want to see the Voting Rights Act 

enforced. African-Americans ought to have the opportunity to elect 

representatives of choice like any other community or constituency 

in this country has, and African-Americans cannot expect it to be 

the ballast for any party by means of sacrificing their right to elect 

representatives of their choice. 

The other thing I want to emphasize is that the progress that we 

have made in this country, which is tremendous, did not happen 

serendipitously. It happened only as a consequence of the Voting 

Rights Act. I think we all recognize that. We have acknowledged 

it, and I think it is so important not to kill the goose that laid the 

golden egg. 

Senator CORNYN. Well, I appreciate your answer, and my purpose for asking the question is I want to make sure we have this 

complete understanding of reality and intended and unintended 

consequences alike. Obviously, this has a lot of political overtones 

as well in terms of electoral outcomes and advantaging or 

disadvantaging political parties. And I think we ought to just get 

it all out there and take a look at it and have a complete record 

and be guided by the facts, whatever they should show. 

To that extent, let me ask, you know, it is interesting to me that 

with only about nine States and some political subdivisions in 

other States covered by Section 5, it is interesting to hear States 

that are not covered, representatives, Senators, Congressmen, advocating the maintenance of the preclearance requirements of Section 5 in other States, not their own, which makes me wonder if 

it is a good thing, unequivocally a good thing why it does not apply 

nationwide. But we understand the political reality of that. It is 

unlikely those States that are not covered, their representatives 

are likely to cover them by Section 5. 

But let me ask, Professor Hasen, what empirical data—not anecdotes but empirical data—can you cite, if any, that indicates the 

position of minorities in covered jurisdictions to participate fully in 

the electoral process is substantively different from minorities outside the covered jurisdictions under Section 5? 

Mr. HASEN. I think that is the $64,000 question, and I think 

that—I am in the middle of going through the material in the 

House report. There certainly are examples, troubling examples 

that continue to occur in covered jurisdictions. I think Mr. McDonald’s work on Indian country in South Dakota raises, I would say, 

29

the largest set of concerns, as well as Mr. Shaw mentioned a case 

coming out of Louisiana. There are still cases that I think—within 

covered jurisdictions that are troubling. 

One of the unanswered questions is whether the Supreme Court 

in reviewing the constitutionality of a renewed Section 5 is going 

to require not only evidence that there are problems in covered jurisdictions, but that those problems are different in magnitude 

from the problems outside of covered jurisdictions. 

For example, you look at the Katz report, the report out of the 

University of Michigan, which looked at all the Section 2 filings, 

there are significant problems, racially polarized voting and other 

problems that exist across the Nation and not just in the covered 

jurisdictions. 

If I could just add one other point? 

Senator CORNYN. Certainly. 

Mr. HASEN. Even if the Congress decides not to make significant 

changes before authorization to 2703 to deal with the constitutional 

questions, I think that some attention has to be paid to the language of the renewed Section 5. There is some new language in 

that provision that in the hands of judges, particularly in the 

hands of judges that might not look at legislative history, that 

could also have unintended consequences, to go back to your earlier 

point, and might not be read in the way that Congress intends. So 

I would hope that you would go back and look at that language as 

well. 

Senator CORNYN. Thank you. 

Mr. Chairman, obviously my concern is that we be guided by the 

facts and not by anecdotes, and I am sure—I mean, I am confident 

that we could probably identify misconduct, violations of the Voting 

Rights Act in all 50 States, and those ought to be vigorously prosecuted and those violations corrected. And the question is whether 

there is any rationale for disparate treatment anymore between 

those States that are covered by Section 5. And my hope is we 

would be guided by the empirical evidence and not anecdotes, because I am confident—this is in Waller County that the conduct 

that Professor Davidson mentioned, which is reprehensible and fortunately was not successful, I am sure those kinds of examples 

could be found on an anecdotal basis anywhere—in many places, 

let me put it that way, in the country. 

Thank you very much, Mr. Chairman. 

Senator SESSIONS. Thank you. 

I would offer for the record Senator Leahy’s statement into the 

record on his behalf, and I would like to followup, Professor 

Issacharoff and Professor Hasen, on the question that Senator 

Leahy asked you about, the constitutionality question. 

Based on your review of the House record, do you believe we currently have enough evidence to meet the Supreme Court’s test in 

City of Boerne? Who wants to go first? 

Mr. HASEN. I have not reviewed the entire House record. First 

let me say that I think that the Supreme Court’s standard is not 

sufficiently deferential to Congress and that, just speaking generally, the Court has applied too strict of a standard in terms of 

the kind of evidence that Congress has to come up with. From what 

I have reviewed so far of the House record, I am concerned that 

30

there will be five or more Justices on the Court who will not be satisfied. If the question is whether I would be satisfied, it is a different question. I think that— 

Senator SESSIONS. Are you one of those who believes in stare decisis like some of my colleagues on the Democratic side to such a 

degree that Boerne ought not to be re-evaluated? Or should the 

Court re-evaluate it if it is appropriate? 

Mr. HASEN. Well, Boerne was a change from the standard in 

Katzenbach, and I would like to see us go back to that. But we are 

living in the reality that we have now, which is that the Supreme 

Court is requiring much more evidence than it ever did, and it is 

not clear to me that the record as I have looked at it so far—and 

I have not completed the review—that it is going to satisfy a majority of the Supreme Court. 

Senator SESSIONS. What about you, Professor? 

Mr. ISSACHAROFF. I would tend to agree with what Professor 

Hasen said. I think that while I have not gone through the entire 

record, I think the record shows that there are still significant 

issues with access to the ballot in the United States. One need not 

only look at the Section 5 record. One can look at the evidence before the Congress when it passed the Help America Vote Act. 

I think that the record is problematic with regard to a couple of 

features, and that is, whether the covered jurisdictions continue to 

be significantly different than the non-covered jurisdictions. If you 

look at the history of recent Section 2 litigation under the Voting 

Rights Act, one sees Section 2 moving more and more to areas 

where you have recent immigrants coming into the country, and 

those tend to be as likely as not, as best I can tell, places that are 

not under covered jurisdictions, places like Lawrence, Massachusetts, some of the smaller towns of Pennsylvania. So I think that 

that is problematic under the Boerne standard. 

I would also note, as this Committee is well aware, that the composition of the Court has changed, and that the likely median 

voter, as we talk about that in the Academy on the Court is probably Justice Kennedy at this point, and Justice Kennedy was a dissenter in Hibbs. And so if one looks at the track record of the 

Court, I think, unfortunately, one can expect much greater scrutiny 

of Congressional action than before. 

I also think that Congress is a co-equal body, and I think that 

the Court is misstepping in demanding a level of factual precision 

from Congress as if it were reviewing some agency determination 

or a lower court finding under a clearly erroneous standard or 

something of that sort. 

But, nonetheless, that is the world we live in, and I am concerned that the trigger is constitutionally difficult today. I am concerned that the extent of time and the time gap between the trigger and the proposed extension is a source of constitutional concern. And I think that the inability of jurisdictions to show compliance with the regulatory scheme effectively and to be able to bail 

out is also a source of constitutional concern. 

Mr. HASEN. May I add one other point? 

Senator SESSIONS. Yes, Professor Hasen, go ahead. And then I 

will followup. 

31

Mr. HASEN. I have heard a number of people say let’s just pass 

this bill as it is and we will roll the dice in the Supreme Court, 

and if the Court strikes it down, we will come back and we will 

write something that will meet the Supreme Court standard. I 

think there is a danger to that, and primarily the danger is that 

it could—it could create some bad law that could call into question 

something like Section 2. Section 2 has been incredibly important. 

I would hate to see Section 2, which applies nationwide, I would 

hate to see that be undermined. And I am worried that not responding to the Boerne line of cases—by Congress not doing that, 

it could have some unintended consequences in terms of other provisions of the Voting Rights Act. 

Senator SESSIONS. Would you explain for the people that might 

be listening here today who are not really attuned to it, as fairly 

as you can, maybe both sides, as succinctly as you can, what the 

issue is here? What is it? What issue is the Supreme Court concerned about? It is not that they do not care about voting rights. 

It is not that they do not respect Congress, in my view. I think it 

is a concern that we may be crossing a line here that violates fundamental constitutional protections. 

Could you articulate what they are, at least? 

Mr. HASEN. Well, both the 14th and the 15th Amendments contain provisions giving Congress the power to enforce those amendments, so to enforce the Equal Protection Clause, to enforce the 

right to vote without discrimination on the basis of race. And so 

these lines of cases, what we have been calling the Boerne line of 

cases, address how much Congress can tell the States what to do 

in the area of civil rights. 

Senator SESSIONS. But it is more than that, is it not? Doesn’t it 

go to the fundamental question of the role that race plays in legislation? 

Mr. HASEN. Well, not necessarily. 

Senator SESSIONS. Equal rights? 

Mr. HASEN. The Boerne line of cases, most of them do not deal 

with— 

Senator SESSIONS. Well, but in the Voting Rights Act. I mean, is 

the Supreme Court concerned about an excessive focus on race in 

American politics? Is that the fundamental— 

Mr. HASEN. I don’t think that—that is the issue in the Shaw line 

of cases and Miller v. Johnson. I don’t think that is the issue which 

raises the constitutional concern in this case. The issue instead is 

whether Congress can point to enough evidence of intentional discrimination, in this case on the basis of race in voting, in these jurisdictions that are targeted and whether the remedy, in this case 

the preclearance remedy, is congruent and proportional to the extent of those violations. 

Senator SESSIONS. I see. OK. 

Mr. SHAW. Senator, may I just— 

Senator SESSIONS. Yes, Mr. Shaw? 

Mr. SHAW. —add that Congress is actually at the height of its 

powers, the zenith of its powers in this area, unlike when it deals 

with disability or gender or some other classification. Here we have 

the confluence of both a suspect classification, that is, race, and 

also a fundamental right, the right to vote. And for those reasons, 

32

the Congress is going to be given more deference and leeway under 

the Boerne line of cases, and the Court, I believe, acted consistently 

with that principle when it decided the Lopez case, which is a postBoerne case, which rejected an attack on Section 5. 

Senator SESSIONS. All right. That was a quick 2 minutes. I have 

a note here that you were arriving in 2 minutes. 

We are delighted to have Senator Kennedy here and would recognize him as he gets settled, and I would just like to thank all of 

you for your thoughtful comments on this important subject. 

Senator Kennedy? 

Senator KENNEDY. Well, thank you. Again, thanks to all of you 

for being here. 

I know that a number of areas have been gone through, but I 

think the country ought to be reminded once more about why this 

is needed. Maybe I will start with Professor Davidson, why we 

think that this is called for or not and in the form and the shape 

that it is. What is it about—you know, we know the different examples that have been illustrated, but you are one that has followed 

this closely over the years. And perhaps you would give us your 

judgment about the need for the legislation as it is. 

Mr. DAVIDSON. Senator, as a number of panelists have said 

today, there is a wide range of information and research reports 

that focus on ongoing vote discrimination problems having to do 

with race that manifest themselves at the polling place, and in the 

hearings that the National Commission on the Voting Rights Act 

held around the country—those were ten hearings that were held 

in 2005, regional hearings—there was a wide range of testimony by 

minority spokespersons, by election officials, by people who were 

charged with getting out the vote or helping implement Section 203 

to the effect that there is just a continuing range of voting problems that confront voters in many venues across the country. 

Senator KENNEDY. And you think that the accumulation of those 

hearings and the records that were made in that underpins the 

basic concept of the need for the kind of extensive legislation that 

is being considered now for the Voting Rights Act? 

Mr. DAVIDSON. Yes, sir, and there was also mention of data that 

were collected from the Justice Department with regard to various 

functions that the Justice Department is charged with here. There 

was the issue of the objections. There was also the point that I 

made very briefly in my opening remarks about the jurisdictions 

under Section 5, many of them after being queried by the Justice 

Department and asking for more information when they had made 

their submissions. They sent letters to the Justice Department saying that they were withdrawing the submitted changes. And in 

many of those cases, I think the inference that could be made is 

that they saw the handwriting on the wall that those would be 

changed that would be objected to if they did not withdraw them. 

Senator KENNEDY. Mr. McDonald, some have suggested that certain types of voting changes are minor and should not need to be 

precleared under Section 5, such as changes in the location of polling places. But isn’t the real test not the type of voting change but 

whether it discriminates? For instance, the ACLU report noted that 

in 1992, a jurisdiction in Georgia tried to move a precinct from a 

33

county courthouse to a racially segregated American Legion Hall. 

Isn’t that the sort of change that should be precleared? 

Mr. MCDONALD. I think so, Senator. The Supreme Court was 

very clear when it construed Section 5 that it was not, you know, 

a short list or a laundry list of changes, but that it was to cover 

any change in voting. And as you mentioned, the change in polling 

place, I think that was St. Mary’s, which is on the Georgia coast, 

but I also recall within the last couple of years one of the areas in 

metropolitan Atlanta relocated a polling place from a place that 

was in the black community to the police department. Fortunately, 

the Department of Justice objected to that, which they should have 

done. So it is not a laundry list. You have to look objectively at 

each change. 

Senator KENNEDY. Let me ask you, Mr. Shaw—I am sure you 

have gone into it, and I will look at the record. You have talked 

a good deal about Georgia v. Ashcroft and the test and how that—

did you get through—is there anything further you want to add to 

that discussion, or do you feel that the discussion earlier I imagine 

that was held here—I apologize. We are—as Senator Sessions 

knows, we are dealing with a major health bill over on the floor 

at the present time, and so I have been necessarily absent, but I 

apologize to all the witnesses. But is there anything further that 

you want to add to the discussion? I was not here. I will read the 

record carefully, but I want to make sure that has been fully ventilated from your point of view. 

Mr. SHAW. Well, Senator Kennedy, I would only add that the 

Georgia v. Ashcroft standard of influence, which replaces opportunity to elect, is a standard that does not—it lacks clear definition. We feel like we do not know what it means. We are not advocating that all of Georgia v. Ashcroft should be overturned, so, for 

example, we believe where it is possible, where the record demonstrates that it is possible to have coalition districts as reliable 

crossover voting on the part of white voters consistently so that African-Americans are not deprived of the opportunity to elect representatives of choice, then that should be sufficient. 

But what we are talking about is in the face of persistently polarized voting, we do not believe that influence district are enough. 

I do not think that anybody else settles simply for influence. They 

want the opportunity to elect representatives of their choice, and 

they do not want to be consistently defeated. That is what we are 

trying to address with respect to the Georgia v. Ashcroft fix. 

Senator KENNEDY. OK. Thank you, Mr. Chairman. Thank you 

very much. 

Senator SESSIONS. Thank you, Senator Kennedy, and I would 

just say once again that I believe the Nation is committed to full 

and open and fair voting rights in this country, and I do not think 

that there will be any move to substantially undermine the spirit 

of the Voting Rights Act or its provisions. I do think it is quite appropriate for us, as was intended from the beginning, that we take 

some time to review that Act, see how it is working, see if we can 

make it better, see if there are other areas of the country that 

might ought to be covered by some of these provisions, see if there 

are some areas that are covered now that no longer need to be. 

34

I think just having stated previously how seriously AfricanAmericans were denied the right to vote in the South and noting 

some of the changes that have occurred, I would like that chart to 

go up one more time that you have there that showed the complaints. As a citizen of Alabama, one of the States that clearly denied African-Americans the right to vote in 1965, I think the objections—the submissions receiving objections being now to—that is 

not 0.5 percent. That is five-tenths of—five-hundredths of 1 percent 

that I believe that figure represents were objected to. So we are 

doing some things that are working. There are active lawyers, civil 

rights groups that certainly are willing to raise an objection when 

one deserves to be raised, but 99.995 percent of the preclearance 

submissions or requests for approval of voting rights changes are 

not being objected to. So that is good news, and I think that says 

something for us. 

If there is nothing further to come before us—Senator Kennedy, 

did you have— 

Senator KENNEDY. If I could, staff just raised a point for Mr. 

McDonald. Would you agree that as a result, the number of Justice 

Department objections under Title 5 since 1982 likely underestimates the unconstitutional attempts to limit minority voting by 

covered jurisdictions? 

Mr. MCDONALD. Well, I think, Senator, that some of the changes 

that were precleared should not have been. The recent photo ID requirement in Georgia, for example, I think should not have been 

precleared. It was precleared. And the Federal district court judge 

immediately granted a preliminary injunction against enforcement 

of that provision and said that it was in the nature of a poll tax. 

You had to buy this photo ID card. You know, people say, What 

new things will they come up with? Well, they did not come up 

with anything very new. They came up with something that was 

in the nature of a poll tax. 

So the mere fact that there have not been a lot of objections does 

not mean that there should not have been more. But also, again, 

as Senator Sessions has noted, it shows the deterrent effect, which 

we still need. 

You know, Senator Kennedy, I have become increasingly alarmed 

reading the newspapers, and I see what happens in other countries, and I am not trying to say the United States is like those 

places, because it is not. But you see what happens in places where 

we do not have a rule of law, with fair laws fairly enforced. There 

is all kinds of corruption and things which I do not need to detail, 

but the surest way that we can make certain that our country remains one where people participate fairly and equally in the political process is to have fair laws that are effective and that are fully 

enforced, all of which simply underscores the need to extend the 

provisions of the Voting Rights Act. 

Senator KENNEDY. Thank you, Mr. Chairman. 

Senator SESSIONS. Thank you. It has been an excellent hearing. 

Thank you very much. 

We are adjourned. 

[Whereupon, at 11:51 a.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

[Additional material is being retained in the Committee files.]

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