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28–342 PDF 2006

S. HRG. 109–562

MODERN ENFORCEMENT OF THE VOTING RIGHTS

ACT

HEARING

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE

ONE HUNDRED NINTH CONGRESS

SECOND SESSION

MAY 10, 2006

Serial No. J–109–75

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 ............................... 3

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

prepared statement .......................................................................................... 112

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

statement .............................................................................................................. 127

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

WITNESSES 

Cartagena, Juan, General Counsel, Community Service Society, New York, 

New York .............................................................................................................. 14

Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas ........................ 20

Kim, Wan J., Assistant Attorney General Civil Rights Division, Department 

of Justice, Washington, D.C. ............................................................................... 4

Landreth, Natalie A., Staff Attorney, Native American Rights Fund, Anchorage, Alaska ........................................................................................................... 18

McDuff, Robert B., Attorney, Jackson, Mississippi ............................................... 21

Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta, Georgia .... 16

QUESTIONS AND ANSWERS 

Responses of Juan Cartagena to questions submitted by Senators Cornyn, 

Coburn, Leahy, Kennedy, and Schumer ............................................................. 31

Responses of Gregory S. Coleman to questions submitted by Senators Coburn 

and Cornyn ........................................................................................................... 50

Responses of Wan J. Kim to questions submitted by Senators Specter, Sessions, Cornyn, Coburn, Leahy, and Kennedy .................................................... 55

Responses of Natalie A. Landreth to questions submitted by Senators Cornyn, 

Coburn, Leahy, and Kennedy .............................................................................. 73

Responses of Robert B. McDuff to questions submitted by Senators Coburn, 

Cornyn, Kennedy, and Leahy .............................................................................. 82

Responses of Frank B. Strickland to questions submitted by Senator Coburn .. 100

SUBMISSIONS FOR THE RECORD 

Cartagena, Juan, General Counsel, Community Service Society, New York, 

New York, prepared statement ........................................................................... 103

Coleman, Gregory S., Weil Gotshall and Manges, Austin, Texas, prepared 

statement .............................................................................................................. 108

Kim, Wan J., Assistant Attorney General Civil Rights Division, Department 

of Justice, Washington, D.C., prepared statement ............................................ 114

Landreth, Natalie A., Staff Attorney, Native American Rights Fund, Anchorage, Alaska, prepared statement ........................................................................ 124

McDuff, Robert B., Jackson, Attorney, Mississippi, prepared statement and 

attachment ............................................................................................................ 129

Strickland, Frank B., Strickland Brockington Lewis, LLP, Atlanta, Georgia, 

prepared statement .............................................................................................. 151

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MODERN ENFORCEMENT OF THE VOTING 

RIGHTS ACT 

WEDNESDAY, MAY 10, 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, Hatch, DeWine, Sessions, Cornyn, 

Leahy, and Kennedy. 

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

SENATOR FROM THE STATE OF PENNSYLVANIA 

Chairman SPECTER. Good morning, ladies and gentlemen. It is 

9:30 and the Judiciary Committee will now proceed on the third in 

a series of hearings on the renewal of the temporary provisions of 

the Voting Rights Act. Yesterday, we examined the legal issues 

surrounding reauthorization, and today we will focus on how the 

Voting Rights Act is enforced. 

Just reading the statute does not get one very far until we probe 

on how the Act is enforced. For example, Section 5 provides that 

a voting practice must ‘‘not have the purpose and will not have the 

effect of denying or abridging the right to vote on account of race 

or color,’’ or a voter’s English proficiency. That provision, a very important one, has been subject to significantly different interpretations. 

Beginning in 1976, the Supreme Court applied a thoroughly mechanical formula in evaluating district plans under Section 5. If the 

plan decreased the number of majority/minority districts, the Court 

would strike it down. Then in the 1990’s, the Justice Department 

went a step further and followed a policy of rejecting any districting plan that did not create the maximum number of majority/

minority districts possible. In Georgia v. Ashcroft in 2003, the 

Court rejected both its own approach and that of the Justice Department and held that districting plans can pass Section 5 even 

if they decreased the number of majority/minority districts. 

It is likewise important to understand the enforcement of Section 

203, which requires bilingual election materials in certain jurisdictions. That section says nothing about how those jurisdictions 

should distribute bilingual election materials. It only requires a jurisdiction to ‘‘provide them.’’ It is enough that the materials be 

available on request. Must a State locate voters and ensure they 

receive them? What criteria should the States use to develop its 

2

programs? How the Department of Justice and local jurisdictions 

answer these questions has a great impact on how effective Section 

203 will be. 

These are all complicated issues. We all recognize the overwhelming importance of the Act in securing fair treatment for minority voters, and the right to vote and the exercise of the right to 

vote is obviously the basic protection of a citizenry and a democracy. To help us examine these issues today, we have the head of 

the Department of Justice Civil Rights Division, Assistant Attorney 

General Wan Kim. We also have five distinguished attorneys with 

extensive experience litigating and responding to the Voting Rights 

Act. 

I thank Senator Kennedy for his leadership on this important 

subject going over—let’s see, the 1960’s, the 1970’s, the 1980’s, the 

1990’s—five decades, Senator Kennedy. You are recognized for your 

opening statement. 

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

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Thank you, Mr. Chairman, again, for the 

breadth and depth of these hearings that will clearly establish a 

record on this very important and fundamental piece of legislation, 

perhaps the most important legislation we will consider in the Congress. 

As we know, the Voting Rights Act was adopted to address the 

systematic and egregious discrimination endured for over a hundred years in the country, and we heard testimony yesterday regarding the unfortunate fact that in numerous ways this discrimination still endures today. Laughlin McDonald, the Director of the 

ACLU’s Voting Rights Project, provided very recent examples, and 

he testified about a TRO that was just issued last month on potentially discriminatory voting changes made in Randolph County, 

Georgia, that were not submitted for preclearance. 

Regrettably, it is not surprising that it may take more than 40 

years to eliminate the blight of racial discrimination in voting. The 

Voting Rights Act combats the ills that are at the core of the 14th 

and 15th Amendments—racial prejudice. And while the remedy is 

strong, it is appropriate, given the fundamental importance of the 

right to vote and participate in the political process. And as the Supreme Court has held, the electoral franchise is a fundamental 

right that is preservative of all other rights. So we cannot discard 

lightly the safeguards adopted in the Voting Rights Act, particularly in Section 5 of the Act. The progress we have made has been 

great, but it is not complete, and we cannot allow it to be jeopardized or diminished. 

Today we will be hearing about the Justice Department’s efforts 

to enforce the Voting Rights Act, and while I have some concern 

about the Justice Department’s recent approach to implementing 

the Act, today we will hear from the Assistant Attorney General 

about the Justice Department’s efforts and the continuing need for 

vigorous enforcement. Section 5 has been the Federal Government’s 

most effective tool against voting discrimination. And even after 

the Act was passed, there was real and substantial danger that discriminatory decisions by jurisdictions covered by Section 5 would 

3

deny or abridge the right to vote. In fact, jurisdictions did adopt a 

host of voting devices and changes, some subtle and some overt, 

with the intent to shut minorities out of voting power. And some 

of those decisions had a discriminatory purpose. Some had a discriminatory effect. Others had both. It was because of the work of 

the Justice Department under Section 5 of the Act that those invidious voting changes were not implemented and that any progress 

in political participation was not undone. 

Taking a long view, historically the Justice Department has vigorously carried out its Section 5 responsibilities precisely as Congress intended it to. The record we will be examining, which the 

House hearings examined closely, indicates that there is a continuing problem with discriminatory decisionmaking with respect 

to voting by jurisdictions covered by Section 5. 

Today we will also hear from witnesses who will describe in more 

detail the concerns about continuing discrimination in some of the 

jurisdictions covered by Section 5 and Section 203, the minority 

language sections of the Voting Rights Act. As we have noted, compiling this record is one of the most important purposes of the 

hearings and will provide a sturdy foundation for our actions in 

this most important piece of legislation. 

We have a number of communities in my own State that are covered by Section 203, including Boston and Chelsea and Lawrence, 

Southbridge and Springfield as well. 

So, in addition, we will specifically be hearing about the role that 

Section 203 has played in ensuring the right to vote and having 

that vote count fully and fairly. Section 203 requires that certain 

jurisdictions provide for language assistance to American citizens 

who are limited in their English proficiency. Section 203 directly 

addresses barriers to voting for Asian Americans, Latinos, and Native Americans, and it, too, as a provision should not be allowed to 

expire. 

So I thank the Chair and look forward to the testimony. 

Chairman SPECTER. Thank you, Senator Kennedy. 

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. Just briefly, Mr. Chairman. Thank you again 

for this series of hearings. I look forward to hearing from the witnesses along the lines that we previously inquired of other witnesses, trying to ascertain what sort of empirical evidence exists of 

changes in voting practices and whether some of the stereotypes 

that certainly were validated by the facts years ago in terms of precluding minorities from fully participating in the process, whether 

those stereotypes are still valid today in light of some of the dramatically improved changes that we have seen. And so I look forward to inquiring of the witnesses and hearing from them on those 

issues. 

Thank you very much. 

Chairman SPECTER. Thank you, Senator Cornyn. 

Senator DeWine, an opening statement? 

Senator DEWINE. Mr. Chairman, I just thank you for holding 

this hearing, and I look forward to the testimony. 

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Chairman SPECTER. Thank you very much. 

Assistant Attorney General Wan J. Kim became the holder of 

that position on November 9th of 2005. Born in South Korea, Mr. 

Kim is the first immigrant to serve as Assistant Attorney General 

of the Civil Rights Division and is the first Korean American ever 

to become an Assistant Attorney General, so you have two very distinguished firsts, Mr. Kim. 

He has experience in the Department before becoming the Assistant AG, having been the Deputy Assistant, spent most of his career 

at the Department of Justice, was in the Attorney General’s Honors 

Program, was Assistant United States Attorney for the District of 

Columbia, served on the staff of Senator Hatch here, and was a law 

clerk to Senator Buckley; an honors graduate from both Johns Hopkins University and the University of Chicago Law School. He has 

served as an enlisted soldier and a rifle platoon leader in the Army 

Reserve. 

Thank you for joining us, Mr. Kim. Our practice is to allocate 5 

minutes for statements and then 5-minute rounds for questions by 

the Senators on the panel. You may proceed. 

STATEMENT OF WAN J. KIM, ASSISTANT ATTORNEY GENERAL, 

CIVIL RIGHTS DIVISION, DEPARTMENT OF JUSTICE, WASHINGTON, D.C. 

Mr. KIM. Thank you very much, Mr. Chairman, and thank you 

for holding these hearings. It is my privilege to appear before you 

and before the other distinguished members of the Committee. 

It is my privilege to appear in this hearing on the modern enforcement of the Voting Rights Act. As you know, certain provisions 

of the Voting Rights Act are due to expire next year. The administration supports reauthorizing these provisions of the Voting 

Rights Act, as the President and the Attorney General have made 

clear. We also support the legislative intent of S. 2703 and H.R. 9 

to overrule the Supreme Court’s 2003 decisions in Georgia v. 

Ashcroft and the 2000 decision in Reno v. Bossier Parish School 

Board. 

While the Department of Justice has not yet completed our review of this bill’s language, we look forward to working with Congress to ensure that this legislation is consistent with these purposes. 

I am pleased to provide you with an overview of the Justice Department’s enforcement of three important provisions of the Voting 

Rights Act: Section 5, which involves the Act’s preclearance mechanism, and Sections 203 and 4(f)(4), which contain the Act’s language-minority provisions. I am also pleased to provide you with an 

explanation of the Department’s use of two other provisions of the 

Act—Sections 6 and 8—which pertain to Federal examiners and observers. 

Let me begin with Section 5. The Voting Section of the Civil 

Rights Division receives roughly 4,000 to 6,000 Section 5 submissions annually, although each submission may contain numerous 

voting changes that each must be reviewed. Our function in evaluating Section 5 submissions is, in the words of the Supreme Court, 

‘‘to insure that no voting-procedure changes [are] made that would 

5

lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’’ 

Impressively, the outstanding career attorneys in our Voting Section undertake this often highly complex examination in a brief 60-

day period of time, as is required under the statute. Employing this 

standard over the last 40 years, we have found retrogression in an 

extremely small number of cases. Since 1965, out of the 125,885 

total Section 5 submissions received by the Department of Justice, 

the Attorney General has interposed an objection to 1,402. And in 

the last 10 years, there have been 92 objections. In other words, 

the overall objection rate since 1965 is only slightly above 1 percent 

while the annual objection rate since the mid-1990’s has declined 

even more, now averaging less than two-tenths of a percent. This 

tiny objection rate reflects the overwhelming compliance with the 

Voting Rights Act by covered jurisdictions. 

In addition to our Section 5 enforcement efforts under this administration, the Justice Department has undertaken the most extensive Sections 203 and 4(f)(4) enforcement activities in its history. The initiative began immediately following the Census Bureau’s 2002 determinations as to which jurisdictions are covered 

under Section 203. The Civil Rights Division not only mailed formal notices and detailed information on Section 203 compliance to 

each of the 296 covered jurisdictions, but we also initiated face-toface meetings with State and local officials and minority community members in the 80 newly covered jurisdictions to explain the 

law, to answer questions, and to foster the implementation of effective legal compliance programs. 

These efforts have borne abundant fruit. Since 2001, this administration has filed more language-minority cases under Sections 

203 and 4(f)(4) than in the entire previous 26-year history of these 

provisions. The lawsuits filed in 2004 alone provided comprehensive language-minority programs to more citizens than all previous 

203 and 4(f)(4) suits combined. Our lawsuits have significantly narrowed gaps in electoral participation. In Yakima County, Washington, for example, Hispanic voter registration went up by over 24 

percent in less than 6 months after resolution of our Section 203 

lawsuit. In San Diego County, California, Spanish and Filipino registration were up by over 21 percent, and Vietnamese registration 

was up over 37 percent, within 6 months following our enforcement 

efforts. 

Finally, the Department of Justice has taken full advantage of 

the Federal observer provisions of the Voting Rights Act. In 2004, 

for example, the Civil Rights Division worked with the Office of 

Personnel Management to send nearly 1,500 observers to cover 55 

elections in 30 jurisdictions in 14 different States. Additionally, in 

2005, 640 Federal observers were sent to cover 22 elections in 17 

jurisdictions in 10 different States. 

Let me say in conclusion that the Civil Rights Division has made 

the vigorous enforcement of voting rights a primary objective. The 

Department of Justice is proud of the role that it plays in enforcing 

the statute, and we look forward to working with Congress during 

these reauthorization hearings. 

6

At this point, I would like to submit the text of my prepared 

statement for the record, and I will be pleased to answer any questions that the members of the Committee may have. 

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

the record.] 

Chairman SPECTER. Well, thank you very much, Mr. Kim. Without objection, your full statement will be made a part of the record. 

As you know, the record basis has to include recent and continuing violations. Over the past 10 years, are you in a position to 

say how many jurisdictions have refused to comply with Department of Justice enforcement orders and court orders? 

Mr. KIM. Senator, it is my understanding that no jurisdiction has 

refused to comply with our determinations made under Section 5. 

It is the case, however, that some jurisdictions have failed to make 

preclearance submissions under Section 5, as is required by the 

statute, and in those jurisdictions we will followup by bringing appropriate remedies, if necessary. 

Chairman SPECTER. How many such cases are there where they 

do not comply with the provisions you just mentioned? 

Mr. KIM. Senator, I would have to get the detailed statistics to 

you, and I will make those statistics available— 

Chairman SPECTER. Would you make those available to us for 

the record so that we know the extent of that problem and also 

how current it is? 

Mr. KIM. Yes, sir. 

Chairman SPECTER. Can you give us some examples over the 

past 10 years of States committing unconstitutional voting discrimination? 

Mr. KIM. Yes, sir. Certainly with respect to some of our Section 

203 lawsuits, we have found voters who have been denied other 

protections either by statute or by the Constitution. For example, 

in a recent lawsuit we brought against the city of Boston under 

Section 203 and Section 2 of the Voting Rights Act, we found instances where ballots presented to certain voters who did not understand English very well were taken from those voters and 

marked out against those voters’ will. And certainly in instances in 

San Diego County, for example, we found examples where election 

officials would ask for additional information about citizenship 

from people who seemed to be Hispanic. And those kinds of violations are often found in the kinds of cases that we bring under the 

Voting Rights Act. 

Chairman SPECTER. Would you supply for the record the details 

or as much information as you have on unconstitutional behavior 

by a State or jurisdiction to give us as comprehensive a record as 

possible on this important question? 

Mr. KIM. Of course, Mr. Chairman. In fact, we have made available and submitted for the House record and we will make available and submit for the Senate record all of the objection letters 

that we have submitted under Section 5 in history, which number 

more than 2,000 pages. We will also make available all the lawsuits that we have brought in recent years that allege constitutional violations. 

Chairman SPECTER. Mr. Kim, as you know, Federal regulations 

require that jurisdictions covered under Section 203 provide bilinVerDate 0ct 09 2002 11:44 Sep 11, 2006 Jkt 028342 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28342.TXT SJUD4 PsN: CMORC
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gual materials to all voters or to develop ‘‘an effective targeting 

system’’ to identify ‘‘persons who are likely to need them.’’ Recently, 

the House Subcommittee on the Constitution found that an elected 

official from Orange County, California, claimed that the Department of Justice requires States to send bilingual materials to any 

voter with a Spanish-sounding surname. That has an overtone of 

racial profiling, assuming that anyone with a foreign-sounding surname cannot speak the language, regardless of how long they have 

lived here. 

Does the Department of Justice enforce such a policy? Why 

doesn’t the Department of Justice simply require States to send bilingual ballots to those voters the census lists as needing assistance? Or is the census adequate to pinpoint the need for that kind 

of assistance? 

Mr. KIM. Mr. Chairman, to answer the first part of your question, no, the Department of Justice does not make such a requirement. The Department of Justice is charged with enforcing Congressional intent in Section 203, and we do so vigorously. And part 

of that intent is to make sure that people who need the bilingual 

provisions obtain them and no more than that. If we required the 

jurisdiction that was covered to provide bilingual materials to everyone in that jurisdiction, obviously that would be a burden that 

is not commensurate to the harm. 

The Census Bureau data only provides information with respect 

to the entire jurisdiction and does not break out those individuals 

in the jurisdiction who actually need the bilingual services. And so 

in each individual jurisdiction, the Department of Justice takes a 

comprehensive view of the facts and circumstances in that jurisdiction to determine the best method for obtaining compliance. 

Chairman SPECTER. Mr. Kim, I want to interrupt you because I 

have time for one more question. What are the key reasons, the 

best reasons in your mind about the need for the reauthorization 

of the Voting Rights Act? What currently is happening which leads 

you to believe the Act should be reauthorized? 

Mr. KIM. Well, Senator, as you know, the administration strongly 

supports reauthorization of the Voting Rights Act, and we have a 

proud history of enforcing the Voting Rights Act since its inception 

at the Department of Justice. The Act has a continuing vitality. We 

file objections under Section 5 every year. We have brought numerous lawsuits in the past 5 years to enforce the language-minority 

provisions, and these are the provisions that are due to expire, and 

we do believe that these provisions serve a continuing need. 

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

Senator DeWine has graciously consented to chair the balance of 

the hearing, so at this point I turn the gavel over to Senator 

DeWine. Thank you. 

Senator DEWINE [presiding]. Senator Kennedy? 

Senator KENNEDY. Thank you very much. 

Could you just continue on your answer about Section 203? We 

had a situation in Boston, as you mentioned, and it was settled 

very expeditiously, and the people—the mayor feels that the interaction with the Department has been enormously constructive and 

positive. So it is one of those circumstances where those that were 

8

pointed out where there had been alleged kinds of problems benefited significantly from working with the Department. 

But besides the 203, in response to the Chairman’s question, I 

mean, we have seen the growth of the terms of the Hispanic community and a number of different communities, so that Section 203 

is going to be out there and applicable in places where I suppose 

we did not think were much of a problem, but we obviously have 

to watch these situations. But in Section 5, if you could—you mentioned that you have been bringing cases. Maybe you could just expand on that briefly about what has been the record in the period 

of the last—I don’t know. I guess you have been in there now for 

a period, but could you give us sort of a rundown of the recent history, say for 5 or 7 years? 

Mr. KIM. Certainly, Senator. First of all, it cannot be overstated 

that the Voting Rights Act has widely been recognized as one of the 

most successful pieces of civil rights legislation ever passed by Congress, if not the most successful. It has, during its course of history, 

significantly narrowed gaps in electoral participation by all Americans, and that is certainly a proud history and one that we are 

proud to enforce. 

Over the history of the Voting Rights Act, the covered jurisdictions are required, of course, to submit for preclearance any 

changes in its voting procedures, and that submission by itself creates a deterrent effect. So I think it is important, when one thinks 

about Section 5 and preclearance, to recognize that the very fact 

of submission is an important detail that prevents retrogression 

and prevents harming minority voting strength and prevents backsliding, the very types of evils that Congress sought to prevent in 

passing Section 5. 

And even with the submission procedures, it is true that the 

number of objections filed by the Department of Justice has declined in the past 10 years to approximately two-tenths of 1 percent. The need for objections, however, is real, and we do make 

those objections every year. And so the fact of the matter is, in the 

past 5 years, we have raised approximately something shy of 50 objections. Stated differently, those are 50 cases that we have prevented in terms of allowing a voting change to take place that may 

have had a retrogressive effect or a retrogressive purpose. And we 

think that that is enormously important to the work of promoting 

the very goals that Congress sought to promote in the Voting 

Rights Act. 

Senator KENNEDY. Explain to me a little bit the value of observers. How do you make the judgment when you are going to have 

observers? And how important have they been in these recent 

cases, recent elections? 

Mr. KIM. Well, Senator, we think that sending observers and 

monitors to help assist local election officials conduct the elections 

is enormously important because they help to prevent problems before there is a real problem, and they help to make sure that no 

one at the polls is denied access to the polls consistent with Federal 

law and constitutional law. 

The decision on when to appoint observers and monitors is one 

based upon the facts and circumstances on the ground with respect 

to any particular election. 

9

Senator KENNEDY. Give us some examples about the extent, how 

many different sort of polling areas that you have provided— 

Mr. KIM. Well, Senator, those numbers are in my prepared statement, and certainly with respect to—in 2004, for example, the 

Presidential election, we sent out nearly 1,500 observers to monitor 

55 elections in 30 jurisdictions in 14 States. That is in addition to 

Civil Rights and Department of Justice personnel—an additional 

400 people to monitor 100 elections in 80 jurisdictions in 27 different States. That was the most extensive observer and monitor 

coverage in history. 

Senator KENNEDY. What do you anticipate in this election here 

in 2006? 

Mr. KIM. Senator, we have not reached firm numbers yet. Clearly, Presidential elections are different in terms of magnitude and 

scale, and we need to step up our enforcement efforts and our monitoring efforts commensurately. But, you know, the commitment 

that I have as the head of the Civil Rights Division is to make sure 

that whatever the need is, we will accommodate it. 

Senator KENNEDY. Just finally, could you tell us—I understand 

the Department of Justice has offered assistance to jurisdictions on 

ways to reduce costs of compliance with Section 203. Could you describe for us some of the outreach the Department has done in this 

regard? 

Mr. KIM. Absolutely, Senator. One of the important things, I 

think, with Section 203 is communication and technical assistance 

because many jurisdictions who are covered do not realize exactly 

that they are covered, nor do they know how to comply with the 

Act in a cost-effective way. Our folks are experts in doing so, and 

we have made contact by mailing letters to every covered jurisdiction shortly after the Census Bureau made the determination in 

2002, having face-to-face meetings, and under the facts and circumstances of each particular case, designing a targeting method 

to reach the voters to whom the provisions are directed in a manner that is cost-effective to the jurisdiction to ensure compliance. 

Senator KENNEDY. My time is up. Thank you, Mr. Chairman. 

Mr. KIM. Thank you, Senator. 

Senator DEWINE. Mr. Kim, thanks for joining us. You mentioned 

that the Department supports the efforts this bill is making to 

overturn the results of some recent Supreme Court jurisprudence, 

certainly including the case of Georgia v. Ashcroft. Could you share 

with us the practical effect of that case and how that has changed 

how you do business, how the Department investigates and prosecutes cases under the Voting Rights Act? 

Mr. KIM. Yes, Senator. Certainly, Georgia v. Ashcroft has 

changed the analysis that the United States employs when reviewing Section 5 submissions by covered jurisdictions. And, of course, 

the Government’s position in Georgia v. Ashcroft was the one rejected by the Supreme Court and adopted by only four members of 

the Court. 

I will say at the outset, of course, that the Department of Justice 

will act pursuant to the laws passed by Congress as interpreted by 

the Supreme Court, and we have been faithful in our application 

of Georgia v. Ashcroft. That said, we do support what we underVerDate 0ct 09 2002 11:44 Sep 11, 2006 Jkt 028342 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28342.TXT SJUD4 PsN: CMORC
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stand the intent of S. 2703 and H.R. 9 to be in terms of overruling 

legislatively the Supreme Court’s decision in Georgia v. Ashcroft. What Georgia v. Ashcroft did was adopt a totality of the circumstances approach to redistricting standards, and since Georgia

v. Ashcroft was decided in 2003, we have not had occasion to review many redistricting submissions employing its standard. Clearly, a small proportion of redistricting happens after the decennial 

census. Most of it occurred and was evaluated prior to the standards enunciated by Georgia v. Ashcroft because, again, we obtain 

most of our redistricting submissions about 2 years after the census, so about 2002. 

We have tried to faithfully employ, and we have, I submit, faithfully employed the standard enunciated by Georgia v. Ashcroft, but 

the totality of the circumstances standard involves a much more 

nuanced approach to retrogression. It requires not only looking at 

minority-controlled districts, but also influence districts where minorities may not control the outcome of elections but influence the 

outcome of elections. And the totality of the circumstances approach is one that is in many respects more nuanced and more difficult to administer because it requires a greater look at everything 

that is going on rather than focused areas. 

Senator DEWINE. You do not have a specific example you could 

cite for me? 

Mr. KIM. With respect to a problem caused by Georgia v. 

Ashcroft, Senator? 

Senator DEWINE. Problem or a case where you could show me 

the actual difference in the application of the law. 

Mr. KIM. No, Senator, I do not— 

Senator DEWINE. Pre-Georgia v. Ashcroft. In other words, compare and contrast how you would approach it. Or if you cannot do 

that, give me a hypothetical. 

Mr. KIM. Sure. 

Senator DEWINE. Make up a hypothetical for me. 

Mr. KIM. Absolutely. Well, Senator, I mean, the facts of Georgia

v. Ashcroft themselves would probably be the best hypothetical because that was a plan to which we objected, and that was a plan— 

Senator DEWINE. What were the facts? 

Mr. KIM. Well, Senator, the facts were—and I am not going to 

do justice to the facts right now, but the facts generally were that 

there was a decrease in the number of minority citizens of voting 

age population in, I believe, three legislative districts in the State 

of Georgia. And the benchmark plan had approximately a 55- to 60-

percent level of minority populations in those covered districts, and 

the plan that Georgia submitted under Section 5 reduced that minority population in, I believe, those three districts to closer to 50 

percent, making those districts much more of a toss-up. 

The United States interposed an objection to those districts, and 

I believe it was three, but do not quote me on that, and I will get 

back to you certainly with more specific and finely honed details. 

The Supreme Court ruled that that legislative judgment was appropriate under Section 5 of the Voting Rights Act and not retrogressive because the decreases of minority voting strength in those 

districts was compensated by increases in minority voting strength 

in other districts. Those districts where minority strength inVerDate 0ct 09 2002 11:44 Sep 11, 2006 Jkt 028342 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28342.TXT SJUD4 PsN: CMORC
11

creased could not be characterized and were not characterized as 

majority-minority districts but sufficiently increased the minority 

voting strength in those districts so it transformed them into what 

was called influence districts. And based upon that totality of the 

circumstances, the Supreme Court ruled that under Section 5 that 

was a legitimate decision and choice for the States to make. And 

consistent with our previous practices prior to Georgia v. Ashcroft, 

we thought that that was retrogressive under pre-Georgia v. 

Ashcroft law. 

Senator DEWINE. Thank you very much. 

Senator Cornyn? 

Senator CORNYN. Mr. Kim, let me ask you, first of all, you said 

the record today in terms of the Voting Rights Act is one that demonstrates overwhelming compliance with the law. Is that correct? 

Mr. KIM. Yes, sir. 

Senator CORNYN. Let me ask you if you agree with this following 

statement: And today in the American South—in 1965, there were 

less than 100 elected black officials. Today there are several thousand. So there has been a transformation. Georgia is a different 

State. It is a different political climate. It is a different political environment. It is a different world that we live in, really. The State 

is not the same State it was. It is not the same State it was in 

1965 or in 1975 or even 1980 or 1990. We have changed. We have 

come a great distance. It is not just in Georgia but in the American 

South. I think people are preparing to lay down the burden of race. 

Do you agree with that statement? 

Mr. KIM. Senator, I have no reason to disagree with that statement, and I certainly agree that the Voting Rights Act has effected 

a great change, and America has changed much over the past 40 

years. 

Senator CORNYN. That statement is part of sworn deposition testimony, as you know—you probably recognize it—in Georgia v. 

Ashcroft by Representative John Lewis. 

I want to ask, in light of this record of overwhelming compliance, 

first of all, I would ask, Mr. Chairman, to make a part of the record 

at the end of my questions and Mr. Kim’s answers a document that 

I believe is part of the DOJ testimony entitled ‘‘Administrative Review of Voting Changes from 1965 to 2006.’’ 

Senator DEWINE. Without objection. 

Senator CORNYN. Mr. Kim, this document appears to demonstrate that, first of all, as you pointed out, that the number of 

objections to preclearance requests by those jurisdictions covered by 

Section 5 have dropped dramatically. I think you mentioned twotenths of 1 percent? 

Mr. KIM. Yes, sir. That is correct. 

Senator CORNYN. And, in fact, in 2006, according to this document, there was one out of 4,094 submitted; out of 4,734 in 2006, 

there was one; the previous year, 5,211, and there were three objections. Is that indicative of what you have testified to earlier, a 

record of overwhelming compliance obviating the necessity of the 

Department objecting to those plans that are submitted for 

preclearance? 

12

Mr. KIM. Yes, Senator. There is almost near universal compliance with the Voting Rights Act, in Section 5 of the Voting Rights 

Act specifically. 

Senator CORNYN. And as you know, the preclearance requirements under Section 5 are regarded by some of the political subdivisions that are covered as expensive and time-consuming and to 

some extent an onerous requirement. They cover only, I guess, nine 

States and parts of other States, but the vast majority of the 

United States is not covered at all by those preclearance requirements. 

Could you cite for the Committee empirical evidence that would 

indicate that the outcomes, in terms of protection of minority voting rights, are significantly different in those sections that are covered versus those that are not covered? 

Mr. KIM. Senator, I am afraid I do not have a record with respect 

to non-covered jurisdictions in the context of Section 5 because, of 

course, we do not receive submissions under Section 5 from noncovered jurisdictions. Certainly you are correct to note that the Voting Rights Act has a trigger formula for coverage, which turns on 

various factors that existed in 1964, 1968, and 1972, leading to approximately 17 States that are covered either entirely or in part. 

I would also note that there is a bailout mechanism employed in 

the Act that allows covered jurisdictions to bail out of coverage 

under Section 5. 

Senator CORNYN. You are certainly correct the bailout provisions 

exist, but we are being asked to reauthorize expiring provisions, 

and so I would submit that is a slightly different issue. But when 

I ask for the empirical evidence and you say that you do not have 

it for those areas that are not covered, is that because you are of 

the opinion that such empirical evidence does not exist or you just 

do not happen to have it? 

Mr. KIM. Senator, I just do not have the evidence. I mean, certainly I have statistics with regard to the number of submissions 

that we receive, the number of submissions that we evaluate, and 

the number of submissions that we raise objections to under Section 5. But that data only exists because of history and because of 

Congress and the laws that it has passed with respect to the covered jurisdictions. 

Senator CORNYN. Would you agree with me that that is an important question for Congress to consider in determining how to go 

about reauthorizing the Voting Rights Act, particularly the 

preclearance requirements, whether, in fact, that Federal intervention into the practices of local and State political subdivisions covered by the preclearance actually produces better outcomes in those 

areas than it would under the Voting Rights Act generally? 

Mr. KIM. Senator, certainly the administration supports reauthorization of the Voting Rights Act, and it is Congress’ role, and 

I think duty in many respects, to make sure that it is a policy decision that is consistent with the goals of Congress and the facts on 

the ground. And I think that a wide-ranging inquiry is something 

that Congress has always undertaken, and I know that the record 

is still open. I know that these hearings are still ongoing, and certainly we will act at the Department of Justice consistent with 

what Congress legislates. 

13

Senator CORNYN. Thank you. 

Senator DEWINE. Senator Kennedy? 

Senator KENNEDY. Just a question to followup on this. Could you 

relate then—Section 2, which covers the country—how that would 

relate to these areas that are not covered under Section 5, wouldn’t 

that still be available in those jurisdictions? 

Mr. KIM. Yes, Senator. Section 2 has nationwide application. It 

always has had nationwide application. It does not expire, and we 

certainly enforce the provisions of Section 2 where the cases 

present themselves. 

Senator KENNEDY. Is it your sense from looking at Section 2, in 

looking at these other areas that are not covered that the Senator 

mentions, is there anything you want to tell us about whether 

there are Section 2 cases in those areas? Are there a good number 

in some areas? Do you form any opinion about the number of Section 2 cases, that maybe there should be greater coverage? 

Mr. KIM. Senator, I can give you some information with regard 

to the number of Section 2 cases that we have brought in the past 

10 years or so. I will say that with respect to the Section 2 cases 

the Department of Justice has brought in the past 10 years, more 

of them have been brought in non-covered jurisdictions than covered jurisdictions, which suggests many things, but it certainly 

could suggest that the preclearance mechanisms in Section 5 do 

have an effect in the covered jurisdictions in tamping down abuses 

of the Voting Rights Act. 

Senator KENNEDY. I think if you can provide, you know, just 

some information on that, it would be helpful. 

Mr. KIM. We would be happy to do so, Senator. 

Senator KENNEDY. Thank you very much. 

Thank you, Mr. Chairman. 

Senator DEWINE. Senator Hatch? 

Senator HATCH. Well, Mr. Kim, we are so proud to have you back 

here again. We appreciate the work you are doing down there. 

Sorry I have not been able to get here before now, but I just want 

everybody to know that I have considered the Voting Rights Act 

the most important civil rights bill in history, and there are a lot 

of important bills. So we are very concerned about making sure 

that we follow through and do what is right here. But I appreciate 

you being here. 

Is there anybody else who wants to question? 

Senator DEWINE. It is down to you, Senator. 

Senator HATCH. Well, then we are going to let you go. How is 

that? 

[Laughter.] 

Mr. KIM. Thank you, Senator Hatch. It is always good to see you. 

Senator HATCH. Well, thank you. Good to see you. We are proud 

of you. 

Senator DEWINE. Mr. Kim, thank you very much. We appreciate 

your testimony and look forward to continuing to work with you. 

Mr. KIM. Thank you, Mr. Chairman. 

Senator CORNYN. Mr. Chairman I have a letter written by the 

Department of Justice Office of Legislative Affairs dated April 12, 

2006, to Hon. F. James Sensenbrenner, Chairman of the Committee on the Judiciary. This letter speaks for itself, but it addressVerDate 0ct 09 2002 11:44 Sep 11, 2006 Jkt 028342 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28342.TXT SJUD4 PsN: CMORC
14

es the Department’s response to Chairman Sensenbrenner’s request for those cases where the Department has been either admonished or been required to pay attorney’s fees in connection with 

Section 5 of the Voting Rights Act. I would ask unanimous consent 

that it be made part of the record. 

Senator DEWINE. That will be made a part of the record. 

Senator CORNYN. Thank you. 

Senator DEWINE. Let me invite our second panel to start coming 

up right now, and I will begin to introduce all of you. 

Robert McDuff is a civil rights and criminal defense attorney 

practicing in Jackson, Mississippi. He is currently Vice Chair of the 

Board of Directors of the Mississippi Center for Justice and serves 

on the Board of Lawyers’ Committee for Civil Rights Under Law. 

Prior to opening his own practice, in 1992 he was a faculty member 

of the University of Mississippi Law School. 

Gregory Coleman is a partner in the Litigation Department. He 

has an appellate litigation practice in a variety of areas and has 

argued and won four cases before the U.S. Supreme Court. He previously served as the Solicitor General for the State of Texas from 

1999 to the year 2001. 

Natalie Landreth is a staff attorney for the Native American 

Rights Fund. Ms. Landreth has worked with the Native American 

Rights Fund since July 2003 and currently practices entirely in the 

area of Federal and State American Indian and Alaska Native 

Law. Most recently, she authored a report entitled ‘‘Voting Rights 

in Alaska 1982–2006.’’ Prior to joining the Native American Rights 

Fund, she worked in the first Office of Tribal Justice in the United 

States Department of Justice. 

Frank Strickland is a partner in the Atlanta law firm of Strickland Brockington Lewis and a regular speaker on the topic of election law. During the 1990’s, he served as redistricting counsel to 

the Georgia Republican Party and represented two voters in Jones

v. Miller, the 1992 case arising from Georgia’s 1991 redistricting. 

He has been the attorney on a number of other high-profile election 

cases, as well. 

Juan Cartagena is a civil rights attorney who serves as a general 

counsel at the Community Service Society of New York, where he 

litigates voting rights cases on behalf of poor communities. He has 

held previous positions with the Puerto Rican Legal Defense and 

Education Fund and was the Commonwealth of Puerto Rico’s Department of Puerto Rican Community Affairs. Since 1991, he has 

represented Latino and African-American communities in voting 

rights litigation in a number of States, including Pennsylvania, 

New York, Illinois, New Jersey, and New Hampshire. He also currently serves as co-chair of the New York Voting Rights Consortium, a collection of major legal defense funds that protects the voting rights of racial and language minorities. 

We welcome all of you here today. We will start on my right. Mr. 

Cartagena, thank you for joining us. You are first. 

STATEMENT OF JUAN CARTAGENA, GENERAL COUNSEL, 

COMMUNITY SERVICE SOCIETY, NEW YORK, NEW YORK 

Mr. CARTAGENA. Thank you, Mr. Chairman, members of the 

Committee. Thank you for the invitation to appear before this disVerDate 0ct 09 2002 11:44 Sep 11, 2006 Jkt 028342 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\28342.TXT SJUD4 PsN: CMORC
15

tinguished Committee and testify on S. 2703, the Voting Rights Act 

Reauthorization and Amendments Act of 2006. In particular, I 

want to focus on the provisions that provide for language assistance for American citizens who speak English as a second language. I have been a voting rights attorney since 1981 who has 

used the promises of equal opportunity and full political access established in the VRA to assist racial and language minorities in a 

number of States. 

The Community Service Society, where I work, is an independent, nonprofit organization that for more than 160 years has 

engaged in social science research, advocacy, policy analysis, direct 

service, and volunteerism to address the problems of poverty and 

strengthen community life for all. Since 1989, we have used the 

Voting Rights Act and other legal norms to benefit these most 

marginalized communities by ensuring full and fair representation, 

especially of African-American and Latino voters. 

I will limit my remarks this morning in light of previous work 

that I have submitted to the record on the reauthorization debate 

before the House Subcommittee on the Constitution as it considered the reauthorization of the Voting Rights Act. I have attached 

those documents to my statement as appendices. These include the 

testimony I gave in November, which highlighted the reauthorization of Section 203 of the Voting Rights Act in New York City as 

well as in New Jersey, with a special emphasis on the voting rights 

of Puerto Rican voters; a report that I drafted called ‘‘Voting Rights 

in New York 1982–2006’’ for the Leadership Conference on Civil 

Rights, which summarizes the state of compliance with the three 

expiring provisions of the VRA in New York; and an article I drafted for the National Black Law Journal at Columbia Law School, 

‘‘Latinos and Section 5: Beyond Black and White,’’ which addresses 

important issues for Puerto Rican voters under Section 4(e). 

I just want to emphasize a few points for you. 

One, we applaud the bipartisan efforts that this Congress has 

used to address the critical issues of political participation for racial and language minorities. The VRA has consistently received bipartisan support since its inception and its amendments, and we 

welcome the manner in which these important debates have been 

held. 

Two, the right to vote, the very right that is ‘‘preservative of all 

rights,’’ is just too important a right to delay, impede, or otherwise 

fail to make fully and meaningfully available to American citizens 

who speak English as a second language. Regardless of the concerns that some opponents of the VRARA may have about the primacy of English in our country, democracy is too precious and voting is too fundamental to condition on full mastery of English for 

American citizens in certain areas of the country who have yet to 

master English. In saying this, we echo the U.S. Supreme Court in 

Katzenbach v. Morgan, which upheld the language assistance provisions of Section 4(e) for Puerto Rican voters in the original Act 

of 1965 as a valid exercise of Congressional enforcement powers 

under the 14th and 15th Amendments by noting that Congress 

may have questioned at that time ‘‘whether the denial of a right 

deemed so precious and fundamental in our society was a necessary or appropriate means of encouraging persons to learn 

16

English, or of furthering the goal of an intelligent exercise of the 

franchise.’’ 

Three, we cannot emphasize enough that the rights we are advocating for today this morning are the rights of citizens of this country to full and fair access to the franchise. With the equally important and pressing matters before the Senate regarding immigration 

policy, we cannot conflate these issues. The Voting Rights Act Reauthorization and Amendments Act, as currently proposed, addresses the rights of American citizens who speak English as a second language. Recent research by the Arizona State University has 

documented that three-quarters of all voters who depend on language assistance are native-born. Section 203 of the Act was created to address concerns of access to the ballot and under significant educational disparities as highlighted by higher than average 

illiteracy rates for certain language minorities in the U.S. More severe forms of exclusion for language minority citizens led to the 

adoption of Section 4(f)(4) in 1975. Both provisions still operate 

today to benefit native-born citizens. Puerto Rican voters would be 

a case in point: All of them are U.S. citizens by operation of law, 

significant numbers of them are either monolingual in Spanish on 

the island or because of educational disparities in the U.S. have 

still not mastered English proficiently here, and circular migration 

patterns between both of those points—the U.S. and Puerto Rico—

are still present today. 

Four, the major factors which led to Sections 203 and 4(f)(4) are 

still present today for Latino citizens. Educational Attainment still 

lags far behind white or black counterparts. Illiteracy rates are far 

higher than national averages; 75 percent, compared to 18 percent 

nationwide, speak a language other than English at home, and 

Latino registration rates are lower than either black or white registration rates nationally. 

Finally, Section 203 is self-maintaining. It adjusts itself depending on changing demographic patterns, even more so with the 

amendments in the proposed Act for using ACS data in 5-year cycles, and contains a bailout provision that is hinged on improving 

illiteracy rates for these language minority groups. All of it demonstrates, consistent with Katzenbach v. Morgan, that it is a proper 

exercise of Congressional authority in furtherance of Congress’ enforcement powers under the 14th and 15th Amendments where 

Congressional power, I would submit, is at its zenith, even under 

the current case law of the U.S. Supreme Court. 

I will gladly accept any questions at the appropriate time. Thank 

you very much. 

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

Senator DEWINE. Thank you very much. 

Mr. Strickland? 

STATEMENT OF FRANK B. STRICKLAND, STRICKLAND 

BROCKINGTON LEWIS, LLP, ATLANTA, GEORGIA 

Mr. Strickland. Good morning, Mr. Chairman and members of 

the Committee, and thank you for the opportunity to provide testimony regarding the important issue of the renewal of certain provisions of the Voting Rights Act. Although I have been involved in 

17

a number of redistricting cases, as you mentioned in my resume, 

I want to talk to you today in a different capacity, and I am not 

here in an official capacity, but I am one of five members of the 

Fulton County Board of Registration and Elections, which is a bipartisan board in Fulton County which has general supervision of 

all voter registration and election processes in Georgia’s largest 

county. 

First, I would raise a question: Should Georgia continue to be a 

covered jurisdiction? The election results in Georgia over the years, 

not only in Fulton County but statewide, suggest that the answer 

is no. In 1969, there were 30 African-American office holders, 14 

of whom served in the legislature. By 2001, this number had increased to 611. And the makeup of Georgia’s Congressional delegation is even more revealing. Four of 13 Members of Congress are 

African-American, and that share of the Georgia House seats, 31 

percent, exceeds the African-American population in the State. And 

at the State level, there is a significant number of African-American elected officials, 9 of 34, including our Attorney General, and 

members of the Supreme Court and court of appeals. 

The experience in Fulton County is similar. The Board of Commissioners of Fulton County has a 4–3 African-American majority. 

The mayor of Atlanta has been an African-American since 1972. 

The Fulton County legislative delegation to the Georgia General 

Assembly includes a majority of African-American representatives. 

In addition, an examination of the people who run the elections 

in Fulton County is illuminating. Approximately 95 percent of the 

Election Department staff is African-American. In primary and 

general elections, more than half of the paid poll workers in the 

356 voting precincts in Fulton County are African-American. 

Some might suggest that rather than trying to escape coverage 

in renewal legislation, Georgia, and particularly Fulton County, 

should pursue the bailout mechanism under Section 4. That section 

allows a jurisdiction to bail out of the preclearance requirements of 

the Act if it has had no objections interposed by the Justice Department for a period of 10 years; in other words, it has to have a perfect record. That might appear to be the obvious choice for Fulton 

County, but there is a catch. Here is how it works. Because there 

are 11 cities within Fulton County, if any one of those cities has 

had a single objection interposed by the Department during the 10-

year period, Fulton County is automatically prevented from seeking 

to bail out of the preclearance requirements, even if its own 10-

year record is flawless. 

A recent example that stopped Fulton County from pursuing the 

bailout provision resulted from the failure of one of those cities to 

obtain timely preclearance of one or more annexations into the city 

in an area where the African-American population is probably less 

than 5 percent. This means that Fulton County has to start over 

and achieve a new 10-year record of perfection in its own 

preclearance procedures and hope that all the cities in the county 

will also achieve perfection. There has got to be a better way to do 

that, and I see no reason why Fulton County’s perfect record 

should not stand alone and that the time period for compliance 

should not be shortened. 

18

Even if these jurisdictions remain covered, Congress should still 

examine what changes should remain covered. As another example, 

the Fulton County Election Board spends considerable staff and 

board time reviewing and approving simple changes in the location 

of a polling place from one public building to another. In many instances, the polling place is in a church and is being moved to another church because the current location is no longer available for 

use as a polling place. 

Similarly, the simple task of setting a date for a special election 

must also be precleared, despite the fact that the requirements for 

special elections are a matter of Georgia law which cannot be varied by any action of the Election Board. 

I think I am about to run out of time, so I will conclude by saying 

thank you for your consideration of my comments, and I would ask 

that my written testimony be made a part of the record and I be 

allowed to revise and extend my remarks where appropriate. 

Thank you very much. 

Senator DEWINE. It will be made a part of the record. 

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

Senator DEWINE. Ms. Landreth? 

STATEMENT OF NATALIE A. LANDRETH, STAFF ATTORNEY, 

NATIVE AMERICAN RIGHTS FUND, ANCHORAGE, ALASKA 

Ms. LANDRETH. Good morning. I would like to thank the Committee for allowing me to speak today. It is a true honor to be here. 

My name is Natalie Landreth, and I am a staff attorney at the Native American Rights Fund in Anchorage. I am an enrolled member 

of the Chickasaw Nation of Oklahoma and a descendent of the 

Imatobby family, who survived the Trail of Tears. 

I am here to discuss the impact of the Voting Rights Act in Alaska and the need for reauthorization and enforcement of the Act. 

Alaska is subject to Section 4(f)(4) and 203—the minority language 

provisions—as well as Section 5, the preclearance requirement. 

Under the auspices of the Lawyers Committee for Civil Rights and 

the Native American Rights Fund, I prepared a report detailing the 

Alaska Native experience under the Act. The evidence gathered in 

preparation of the report shows that there is still a very real need 

for minority language assistance and Federal oversight in the form 

of preclearance. To our surprise, however, we also discovered, one, 

that, with all due respect to the State of Alaska, it has been out 

of compliance with the VRA for more than 30 years and, two, that 

the Act has largely not been enforced in Alaska. 

First, however, I must give you a small picture of the Alaska Native population to enable you to understand the reality on the 

ground. It is naturally very different than the previous two scenarios described. Alaska has the single largest indigenous population in the United States at 19 percent. Most of these people reside in rural Alaska, which is largely inaccessible by road; all supplies must be flown in. It consists of about 200 Native villages with 

no services, hotels, roads of any kind. Only 70 to 75 percent of 

these homes even have sanitation systems, and the rest use well 

water. They live off subsistence, literally fishing and hunting off 

the land. In places like this, a ballot box often has to move up and 

19

down the river on Election Day in order to hit all of the polling 

places, and you have half an hour to vote. In November, this is no 

mean feat. On Election Day in 2004, 24 of these villages did not 

even have polling places. 

Today, an Alaska Native is likely to be unemployed—fewer than 

50 percent have jobs—and when he does get a job, he will earn just 

50 to 60 percent of what non-Natives earn in Alaska. As a result, 

they are 3 times more likely than other Alaskans to be poor. They 

also have the lowest level of education. At the time the VRA was 

extended to Alaska in 1975, only 2,400 Natives had graduated high 

school at all. This is incredibly important because this is now your 

elder population that are having a very hard time understanding 

the English ballot. 

Seventy-five percent of all Alaska Natives have now graduated 

from high school. There have been gains, but at the same time, our 

dropout rate is actually increasing. The 2005 standardized test results reveal that 80.5 percent of the new Alaska Native voters, 

graduating seniors, did not pass reading comprehension in 

English—80.5 percent. 

This enduring but disadvantaged population speaks about 20 different indigenous languages. Yet it is a well-known fact that Alaska does not provide ballots or election materials in any languages 

other than English and Tagalog out in Kodiak Island. Yet all of 

Alaska is covered by 4(f)(4), and 14 census areas are also covered 

by 203. The Native population still meets or exceeds all the population and illiteracy benchmarks set forth in the VRA. Yet Alaska 

provides nothing more than intermittent oral assistance upon request. 

In addition to this clear noncompliance with the letter of the law, 

we know there is a real need for language assistance. In the Bethel 

census area, a Yup’ik-speaking region, 21 percent of the population 

is limited English proficient, and there are 17 villages in which 

Yup’ik is the only language that is spoken. It is one of the oldest 

written languages in North America. Signs are Yup’ik, school is 

taught in Yup’ik, and the Pledge of Allegiance is recited in Yup’ik. 

They consider it their first language. 

We now know also that the English ballot is interfering with the 

exercise of the right to vote. For example, in 1995, 18 non-Englishspeaking Inupiat sued the city of Barrow claiming that the absence 

of written materials in Inupiaq and the absence of a standardized 

oral translation led them to vote the wrong way. A class of elders 

wanted to vote to institute an alcohol ban to protect the children 

being born in the village, and because they did not understand a 

single-sentence ballot measure in English, they accidentally voted 

to repeal that measure. 

Alaska is also subject to preclearance, and there has only been 

one objection in Alaska’s history. But it is hard to overstate the importance of that objection. 

While the Alaska Supreme Court approved the redistricting plan 

put together after the 1990 Census, the astute staff of the Department of Justice caught a retrogressive district called District 36 

that showed evidence in racially polarized voting that actually reduced the Native voting-age population. What the court had not objected to and what would have been permissible under Alaska was 

20

only prevented by the intervention of the DOJ. Without it, Alaska 

may have been subject to retrogressive policies throughout the 

1990’s until the next census. 

I see that I have, unfortunately, run out of time, so I would like 

to—I apologize. I would like to submit the entire text of my comments for the record, if I may. 

[The prepared statement of Ms. Landreth appears as submissions for the record.] 

Senator DEWINE. Thank you very much. 

Mr. Coleman? 

STATEMENT OF GREGORY S. COLEMAN, WEIL GOTSHALL AND 

MANGES, AUSTIN, TEXAS 

Mr. COLEMAN. Thank you, Mr. Chairman. I appreciate the opportunity to come and visit with the Committee today. As I noted in 

my written remarks, I would like to address the issue of the reauthorization of the preclearance provisions of Section 5. I believe 

that preclearance should not be reauthorized. I believe that it is 

unnecessary, unfair and that it would probably be unconstitutional. 

With respect to the necessity of Section 5, there is a lot of data 

that has been put before the Congress, both in the hearings on the 

House side and now on this side. But that data, in my view, does 

not amount to a justification for the reauthorization of Section 5. 

It is largely anecdotal. It does not establish a need for preclearance 

provisions at all, and it certainly does not establish a need for 

preclearance provisions in the States only and political subdivisions 

that have historically been subjected to preclearance. This is not 

1965. This is not 1975. 

The bill that has been introduced notes that the original problems that the Voting Rights Act sought to remedy have in fact 

largely been remedied and moves the focus toward, I think, what 

it calls secondary barriers. There are no findings in the record, and 

there cannot be any findings that those secondary barriers, to the 

extent that they really do exist, exist only in the jurisdictions that 

were pegged to be covered under Section 5 in the 1960’s and 1970’s. 

Most of the significant litigation in the Voting Rights Act area 

in the past 10 years has been Shaw-based, suggesting a need to get 

rid of preclearance. An analogy that one might make is another 

very successful statute and that is the Americans with Disabilities 

Act. Enforcement of that Act has been very successful, and yet, 

Congress did not require every company, every city, every State to 

submit its building plans to the Department of Justice for review 

before they have been approved, but has relied on enforcement 

mechanisms. Those enforcement mechanisms have been extremely 

successful, and as noted by those who have testified today, as well 

as in prior hearings, Section 2 and other provisions of the Voting 

Rights Act have been extremely successful, and they remain a very 

potent force to remedy any voting rights issues that may exist 

today or that may come up in the future. 

There is, as noted today by Mr. Kim, more Section 2 litigation 

outside the covered jurisdictions. Perhaps Congress might want to 

consider freeing all the covered jurisdictions from Section 5 and 

putting all of the remaining States and political subdivisions under 

21

coverage for a period of time, so that they can remedy the problems 

that they appear to have. 

It is also unfair—I note in my written remarks that the 

preclearance provisions, while very effective in the early years of 

the Voting Rights Act, have become largely rote and ineffective. In 

the tens of thousands of submissions in recent years, the objection 

rate has moved to where it has become infinitesimally small. Even 

among those objections, there are many that are withdrawn or that 

are simply not good objections, and ultimately shown to be so. But 

there is no case today when you have a team of lawyers that are 

essentially costing States and political subdivisions within those 

States tens or hundreds of millions of dollars in the preparation of 

Section 5 preclearance submissions, when you have an objection 

rate that is in the single digits per 10,000 submissions. That type 

of enforcement, I think, is costly and no longer effective. 

The coverage formula, too, is not changing, and yet none of the 

evidence that is before the Congress contains any connection to the 

coverage formulas that the Congress initially put in place. 

Finally, I would like to just say a word that the Supreme Court 

has increasingly recognized the federalism concerns that Section 5 

implicates, and there is a strong possibility that if reauthorized, 

that Section 5 would very shortly be struck down as an unconstitutional exercise of Congress’s power. 

I am available for questions at the Committee’s bidding. 

[The prepared statement of Mr. Coleman appears as submission 

for the record.] 

Senator HATCH [presiding]. Thank you. 

Mr. McDuff? 

STATEMENT OF ROBERT B. MCDUFF, ATTORNEY, JACKSON, 

MISSISSIPPI 

Mr. MCDUFF. Thank you, Mr. Chairman. As a native of Mississippi, who lives there and has spent most of his life there, and 

as a lawyer who has represented black voters in a number of voting 

rights cases in Mississippi and elsewhere, I want to urge you to 

renew Section 5, and I want to talk a little bit about the experience 

in Mississippi. 

After the Civil War and the passage of the 14th and 15th 

Amendments, some progress was made in the racial integration of 

public life in the south, but when the Federal Government lost interest after Reconstruction, it was all nullified by actions like those 

taken at the Mississippi Constitutional Convention of 1890, and 

the south was plunged into decades of horrific racial discrimination. It was only after Congress passed the 1964 Civil Rights Act 

and the 1965 Voting Rights Act that the promise of those amendments began to be restored. But in Mississippi, as in some other 

States, Government officials continued to try to nullify and minimize the vote of black citizens, leading the Department of Justice 

to object to voting changes in Mississippi 169 times since the passage of the Act, 112 of those since the Act was reauthorized in 

1982. 

Now, Section 5 has led to a great deal of progress in Mississippi 

and elsewhere. In absolute numbers, Mississippi has the highest 

number of black elected officials among any of the 50 States. But 

22

despite the fact that it also has the highest percentage of black 

population among the 50 States, no black citizen has been elected 

to office in a statewide election in Mississippi in the 20th century, 

and at every level of government, viewed from a statewide perspective, the percentage of black officeholders is lower than the black 

voting-age population percentage in the State, and the percentage 

of white officeholders is higher than the percentage of white votingage population, and we continue to see disturbing signs of the destructive role that race plays in public life. 

In the second most recent legislative redistricting process in Mississippi, the one in 1991 and 1992, the legislature defeated a proposed redistricting plan that would have increased the number of 

black majority districts with legislators repeatedly referring to it on 

the floor as the ‘‘black plan,’’ and some privately calling it the ‘‘nigger plan,’’ even though it was supported by a biracial coalition of 

20 black legislators and 38 whites. 

The legislature passed a plan that created fewer majority black 

districts than this proposal, but fortunately, the Department of 

Justice objected to it on racial purpose grounds, citing as part of 

the evidence these racial characterizations. 

In 2001, the all-white city council of Kilmichael, Mississippi, canceled city elections 3 weeks before they were to be held, after new 

data showed the town’s voting population had become majority 

black and after, for the first time in the city’s history, a number 

of black citizens qualified to run for office. Fortunately, the Department of Justice objected to that cancellation. 

In 2003, in the most recent statewide election in Mississippi, a 

46-year-old black candidate for State treasurer, who had served as 

the State’s Director of Finance Administration, who had a wealth 

of public finance and private sector experience, was defeated in an 

election marked by racially polarized voting by a 29-year-old white 

candidate, whose only experience was that he had worked as a 

mid-level bank employee, demonstrating that it is still difficult for 

a black person, no matter how qualified, to be elected to statewide 

office in Mississippi. 

In 2004, a sitting white trial court judge, running against the 

only black supreme court justice in the State, used the slogan ‘‘one 

of us’’ when referring to himself, implying that there is a them, and 

his opponent is one of them, a throwback to a slogan condemned 

as a racial appeal 20 years earlier by a three-judge Federal District 

Court in Mississippi, when it was used by a white congressional 

candidate, who defeated a black candidate trying to become Mississippi’s first black Member of Congress in the 20th century. 

And finally, in 2005, a three-judge Federal District Court had to 

enjoin the city of McComb, Mississippi, from changing the qualification requirements and removing a black city council member 

without seeking preclearance of the change. 

These examples show that, unfortunately, some of those in power 

still fall back on old ways and old prejudices. William Faulkner 

said ‘‘the past isn’t dead, it isn’t dead, it isn’t even past.’’ And certainly that is not always true. Some things have certainly changed 

and some of the past is in the past. But we have to recognize the 

echoes and the vestiges that still exist, and if the protections of section 5 are withdrawn, I think we will see some elected officials 

23

changing the rules and changing the districts to take advantage of 

the racially polarized voting that still exists—this is not anecdotal, 

this is systemic—to diminish the racial integration that has been 

achieved in Government. 

And so I join with many Mississippians, black and white, to urge 

you to renew the Voting Rights Act and help us build on the 

progress that has already been made. 

Thank you. 

[The prepared statement of Mr. McDuff appears as submission 

for the record.] 

Senator HATCH. Thank you. 

Senator Cornyn, you were here before me. Would you care to 

start? 

Senator CORNYN. Thank you, Mr. Chairman. I have a few questions. 

I think at the outset of these hearings, members of the Committee on both sides of the aisle stated one of our goals is to pass 

a reauthorization of the Voting Rights Act that would be sustained, 

and congressional will sustained, in the face of any litigation that 

might reasonably be successful to overturn it. So it is for that reason I want to focus some of my comments on the preclearance requirements, and ask Mr. Coleman to start with, what has the Supreme Court said about how they will regard Section 5 

preclearance requirements? In other words, what sort of burden is 

there on Congress to demonstrate the necessity for those 

preclearance requirements, which are admittedly intrusive, into 

local electoral affairs in those jurisdictions covered? What sort of 

burden is required on Congress? 

Mr. COLEMAN. Well, the Supreme Court, in South Carolina v. 

Katzenbach, one of the earliest voting rights cases, upheld Section 

5, and the Court did it so again on the Rome litigation. 

In more recent years, in Monterey County v. Lopez, members of 

the Court began to recognize more the federalism concerns. Justice 

Thomas himself indicated that there was a strong likelihood that 

it was becoming unconstitutional. 

Many scholars have spoken on this issue and have looked to the 

case of City of Boerne v. Flores, where the Court said, in the 14th 

Amendment context, that Congress, in acting, under Section 5 of 

the 14th Amendment, needs to ensure that its legislation is congruent and proportional to the problems that it seeks to fix. The 

Court has never specifically said that that would apply to Section 

2 of the 15th Amendment, although in the early litigation over the 

Voting Rights Act in the Katzenbach v. Morgan case, the Court did 

rely strongly on the 14th Amendment. 

In other courts, cases have suggested that the 14th and 15th 

Amendments would be considered together. 

So the congruence and proportionality analysis that the Court set 

out suggests that there has to be a strong evidentiary link between 

the data that is presented and a very real and cognizable systemic 

violation of constitutional rights or threatened violation of those 

rights. I do not believe that the record before Congress today suggests that there continues to be a systemic violation or a threatened systemic violation of those rights. 

24

Senator CORNYN. Mr. Coleman, when looking at the empirical 

evidence that does exist—and I hope we get that evidence in front 

of us so we can take a hard look at it and understand it better—

are we talking about an all or nothing proposition, in other words, 

or will it be on the basis of individual political subdivisions that 

that analysis would have to be made, whether there is sufficient 

justification based on the evidence of maintaining the preclearance 

requirements in Section 5? 

Mr. COLEMAN. Congress could, if it desired, make specific findings that relate to individual States or individual political subdivisions. Thus far, to my knowledge, there has been no attempt to do 

that. There has simply been a proposal to reauthorize the coverage 

as it exists and has existed since the 1970’s. 

Senator CORNYN. Mr. Strickland, you talked about the intrusiveness and the burdens on political subdivisions when it comes to the 

preclearance requirements, and then also about the bailout provision. Some might say, well, you have a bailout provision, so why 

shouldn’t we just maintain the preclearance requirements? Those 

seem to me to be apples and oranges. But could you talk about the 

financial and other burdens on political subdivisions to comply with 

the preclearance requirements? 

Mr. STRICKLAND. Well, the example that I gave in my testimony 

was a pretty simple process of changing a polling place from one 

location to another. It is essentially a ministerial function. It is not 

normally a public building. But what is required as a practical 

matter is election department staff has to produce a map of that 

area, and it has to locate the old polling place, the new polling 

place, and the election board will just get a sheaf of papers about—

suppose they are changing a dozen or 15 or 20 polling places—we 

would just get a sheaf of papers that show Point A and Point B. 

There is never an issue about it, and to my knowledge—I served 

on the election board in the ‘70’s and I am now serving again—I 

do not remember a single instance when there has ever been a 

problem with any of these, what I call ministerial functions, in relocating a polling place from one place to another. 

So it seems to be an unnecessary consumption of time, energy 

and expense by the election department staff in complying with 

that aspect of preclearance. 

Senator CORNYN. If I can ask just one final question of any member of the panel. Are any of you familiar with any studies or empirical evidence that indicates that there are significant differences 

and outcomes, in other words, of minority voting participation in 

those jurisdictions that are covered by the preclearance requirements of Section 5 versus those that are not? 

Mr. MCDUFF. Senator, I am certainly not aware of any. I do not 

know that anyone has undertaken that sort of study, and I am not 

quite sure how one would do it. What I think we do know is that 

the formula that was created by Congress in 1965 and has been 

modified several times, has been repeatedly upheld by the Supreme 

Court as a constitutional exercise. 

I do think that a record is being built, both in the House and 

here, about the problems that still exist in the jurisdictions that 

are presently covered. 

25

Now, one, I guess, could attempt to build a similar record in 

other jurisdictions that are not covered. I do not know if anyone 

has tried to do that, but I think the more you expand the scope of 

Section 5, the more of a record you need to build, and the greater 

risk you take that it might be held unconstitutional. 

Mr. COLEMAN. Very briefly, Senator. I believe the Gaddie-Bullock 

studies that are in the record very systematically show that there 

are, in fact, no differences. 

Senator CORNYN. Anyone else? 

Mr. CARTAGENA. Yes. If I may, Senator. The effectiveness of Section 5 cannot only be measured by the number of objections issued 

by the Department of Justice. There is a significant deterrent effect, a prophylactic effect upon these jurisdictions that are covered 

by Section 5. In many ways, we really cannot speak about Section 

5 without also speaking about what are called more information request letters, MIRs, that are issued by the Department of Justice 

to numerous jurisdictions. MIRs get responded to. They basically 

are simply, do you have more information that allows us to make 

a determination? Some States withdraw the changes. Some States 

supersede them. Some States ignore it. In all those three cases I 

just cited, it demonstrates the effectiveness, as well, of Section 5 

objections above and beyond the number of objections issued. 

I cited a study by Fraga and Ocampo out of Stanford University 

in my materials appended to my statement, in which they have researched the MIRs that were issued in 1989 through 2004. And 

their study demonstrates that it doubles the amount of objections—

excuse me—submissions that would have otherwise received a denial of preclearance just because many jurisdictions withdraw the 

request upon receiving a more information request letter from the 

Department of Justice. 

Ms. LANDRETH. Senator, I would like to add one thing to respond 

to some of the comments that were made that would hopefully also 

help answer your question. One of the aspects that has been discussed is the burdensome requirement of having to submit paperwork for preclearance for simple things such as a polling change. 

In Alaska, that is an incredibly big deal because, if you move a 

polling station in a community that does not have cars and operates by snow machines or walking in 10-below weather in November, you may actually disenfranchise an entire community. 

We have had some of that situation in Anchorage, where they 

move polling places out of very poor places in Anchorage, and most 

of the folks could not get time off of work to go to the new polling 

station, so there are examples of even something like that that another jurisdiction with adequate transportation and adequate systems established would be very ministerial and seem unimportant. 

In Alaska, it is actually an incredibly important aspect of 

preclearance. 

Senator HATCH. Senator Leahy. 

Senator LEAHY. Thank you, Mr. Chairman. 

Mr. McDuff, I had watched some of this before I came over here. 

You heard from the hearing yesterday, and others have said, that 

Section 5 is so successful we do not need it any longer. You practice 

in a covered jurisdiction. I would assume you have seen some significant progress in minority participation over the decades. If we 

26

did away with Section 5, if that is no longer operational, does that 

really provide any kind of deterrent, or would it be your position 

that we should keep Section 5 as a deterrent? 

Mr. MCDUFF. Yes. It does provide a tremendous deterrent. I cannot tell you how many times I have talked to legislators, city council members, lawyers in the State Attorney General’s Office, or lawyers for localities who have really now internalized sort of the goals 

of Section 5, and who, when voting changes are being made, assess 

the impact on all groups, all racial groups, and reach out to all 

groups, to try to determine if a solution can be developed that satisfies everyone’s concerns in light of the very deep racial fault line 

that still exists in the south and in other parts of the country due 

to the history of discrimination. 

We have a persistence, I know in Mississippi, and I think in a 

number of other places, of racially polarized voting. I gave an example a minute ago that clearly the best qualified candidate for 

State treasurer in Mississippi lost as a result of racially polarized 

voting. That is a systemic problem that still exists. 

And the problem is that if you withdraw the protection of Section 

5, two things can happen. No. 1, the sorts of officials who canceled 

the elections in Kilmichael, Mississippi, when it looked like black 

candidates would be elected—those sorts of people will take advantage of the absence of those protections and will change the rules 

and will change the district lines. 

Senator LEAHY. Conversely, is it a protection for those people 

who want to do what is right? 

Mr. MCDUFF. Oh, yeah, exactly, because everyone knows that the 

law has to be satisfied and that retrogression is illegal, and it has 

become a part of people’s thinking and of the process of local government to make sure that doesn’t happen. I think this is— 

Senator LEAHY. So you would not change the existing coverage 

formula requiring preclearance of changes? 

Mr. MCDUFF. No, I wouldn’t. I think it has worked very successfully, and I think there is still a need for it. 

Senator LEAHY. Thank you. 

Ms. Landreth, I listened to what you were saying about Alaska. 

A majority of the actions brought to enforce Section 203 have been 

in the last 3 years, 4 years; am I correct? 

Ms. LANDRETH. In general we have had no enforcement actions 

under 203 in Alaska. 

Senator LEAHY. Was there insufficient enforcement of Section 

203 previously? 

Ms. LANDRETH. It has never been complied with in Alaska, and 

it has never been enforced in Alaska, so, yes, in my opinion, there 

is insufficient enforcement of Section 203. 

Senator LEAHY. So you wouldn’t do away with it? 

Ms. LANDRETH. Absolutely not. I think Alaska is the perfect example of a climate where people are discussing immigration, and 

I have seen in some articles, confusing the Voting Rights Act and 

the bilingual ballot with the Voting Rights Act. And the fact is that 

these are indigenous American citizens, who don’t understand the 

English ballot to such a degree—and here is a perfect example—

they didn’t understand to such a degree that they actually voted 

for an English-only law in Alaska, that was then subsequently 

27

struck down by our Supreme Court because they had no written 

translation, and the poll workers simply told them, ‘‘Just vote yes.’’ 

Senator LEAHY. I will go to you, Mr. Cartagena. How will the bill 

provision—before we get into the language—how about the bill’s 

provision permitting recovery of expert witness fees? How does that 

allow the enforcement of the Voting Rights Act language assistance 

provisions? 

Mr. CARTAGENA. It is a very important point, Senator. 

Section 203 enforcement actions really have not, from what I can 

see in the case law, have not come to judgment. Many times these 

actions are settled well before judgment. 

But we have—and the cases that I have worked on indicated to 

me to need either historians or other experts to allow us to present 

a full picture of both Section 203 noncompliance and potentially 

Section 2 violations. In those kind of situations, recovery of expert 

attorney fees—excuse me—expert fees in a successful action that 

does come to judgment, would be a very, very important tool to use. 

We are, as you can imagine, private attorneys general. The Department of Justice has done incredible work under Section 203 enforcement in the last several years. But there is so much work to 

do, and there is just too much noncompliance. 

And the state of noncompliance is what it is, as I have indicated 

in the report, particularly like in New York and New Jersey, that 

we don’t have the person power to get to all of these jurisdictions. 

The ability to collect expert fees would be an incredible assistance 

in that regard. 

Senator LEAHY. And you would want to maintain the 

preclearance provisions of— 

Mr. CARTAGENA. Yes, I do, and I think the preclearance provisions, Senator, are important on various levels. And I have indicated the deterrence value already to the panel. I also would indicate—and this is where I differ with Mr. Coleman—Section 5 is a 

model of the constitutional exercise of both the 14th and 15th 

Amendment power of the Congress, in large part because it is time 

limited, it is geographically focused, and because it has bailout provisions. All of those elements, I mean, where Mr. Coleman cited the 

Lopez case, I think I cited on my last footnote of my testimony, on 

page 285, that the Supreme Court noted that in short the Voting 

Rights Act, by its nature, intrudes on State sovereignty. The 15th 

Amendment permits this intrusion, however, and a holding today 

adds nothing of constitutional moment to the burdens the Act imposes, close quote. And it said that when it talked favorably about 

the constitutionality of Section 5. 

Senator LEAHY. My time has expired. I have other questions, especially of Mr. Coleman and others, and I will submit those for the 

record. 

I understand Senator Biden is on his way over here. 

Senator CORNYN [presiding]. Thank you, Senator Leahy. 

I just have a very few more questions myself. Just out of curiosity, Mr. McDuff, you indicated that clearly the best candidate for 

State treasurer lost in Mississippi. That was an African-American 

candidate, I take it. What is the percentage of black voters in Mississippi? 

Mr. MCDUFF. The black— 

28

Senator CORNYN. At the time of that election. 

Mr. MCDUFF. The black voting age population, under the 2000 

Census, is 33 percent. 

Senator CORNYN. Was that candidate a Democrat, or Republican, 

insurance Independent? 

Mr. MCDUFF. He was a Democrat. He did lose. There was another white Democrat running for an open seat on a down-ticket 

race, the Attorney General, who won with 66 percent of the vote. 

So this was not a situation where Republicans swept all statewide 

seats during the election. 

Senator CORNYN. That was Michael Moore? 

Mr. MCDUFF. It was actually his successor, Jim Hood, right. 

Senator CORNYN. His successor, all right. 

Mr. MCDUFF. Mike Moore had retired at the end of his prior 

term. 

Senator CORNYN. OK. Now, the Governor and the two United 

States Senators from Mississippi are Republicans, are they not? 

Mr. MCDUFF. That’s true. 

Senator CORNYN. I just wanted to probe a little bit about your 

confidence level that this candidate lost because he was an AfricanAmerican, when 31 percent of the voting population is AfricanAmerican, and when other high-level statewide officials elected are 

Republicans, how can you state with such confidence that that 

demonstrates the nature of polarized voting, or that this candidate 

lost because he was an African-American? 

Mr. MCDUFF. The polarized voting is clear from some statistics 

I have set out in my written testimony. Of the 25 majority black 

counties of Mississippi, Mr. Anderson, the 46-year-old black candidate who had this history of public finance and private sector experience, won 24 of the 25. Of the majority white counties, he won 

18 and lost 39. It was very clear that he was treated differently in 

white areas as compared to black areas. Again, it was not a Republican sweep. In fact, most of the statewide offices were won by 

Democrats that year, in 2003. The Governor was Republican. I believe every other—the Lieutenant Governor was Republican. I believe every other down-ticket race was won by a Democrat. 

But here is what is important, to me. The treasurer’s office and 

the Attorney General’s office were both open seats. In the Attorney 

General’s race, the white candidate won with nearly two-thirds of 

the vote, in a down-ticket ballot with an open seat. The black candidate, 46-years-old with a wealth of experience, lost to a 29-yearold white candidate who had very little experience. In the Attorney 

General’s race, the white Democrat won. In the treasurer’s race the 

white Democrat lost. I have no doubt in my mind that if the two 

treasurer candidates had been of the same race, Gary Anderson, 

the 46-year-old Democrat with a wealth of experience, would have 

won over the 29-year-old candidate who had no relevant experience. 

Senator CORNYN. I do not question the sincerity of your statement. I just would note from my experience—and I think shared 

by other people who run for statewide office—the elections are usually multifactorial and not—it is hard, even though sometimes people tend to point to a single cause, it is hard I think to justify it. 

Mr. MCDUFF. And I don’t disagree with the multiplicity factors— 

29

Senator CORNYN. Since my time is limited— 

Mr. MCDUFF. I’m sorry. 

Senator CORNYN.—let me, please, go to ask one other question. 

This has to do with the legal standard. Mr. Cartagena made I 

think a good point talking about the legal standard that has been 

applied, and Mr. Coleman has talked about that too, for maintaining the preclearance requirements in those jurisdictions that are 

covered. But I would like to know—and maybe we will start with 

you, Mr. Coleman—in terms of the ultimate protection for minority 

voting rights, what additional protections, if any, are provided by 

the preclearance requirements under Section 5? In other words, if 

a lawsuit is filed by the Department of Justice for violating the 

Voting Rights Act, will they look to the standard vote in Section 

2 and Section 5, or is there somehow, are minorities disadvantaged 

in those areas where the preclearance requirement no longer exists? 

Mr. COLEMAN. A Section 5 lawsuit would largely simply determine whether he should have precleared something. If the U.S. is 

filing a lawsuit alleging a violation of voting rights, it would ordinarily be brought under a substantive provision, Section 2 or Section 203 that has been talked about. So that the Section 5 litigation 

tends to be really very little of the law suits given the Department’s lack of recent activity in the Section 5 area. So those lawsuits would generally be under the substantive provisions. The Department of Justice has been active in those areas. Private lawyers 

have been very active in those areas. In my view, Section 5 adds 

very little to the mix. 

Ms. Landreth has talked at length about violations that continue 

to exist in Alaska. My understanding is the Department of Justice 

hasn’t interposed an objection in Alaska since 1994 or something 

like that. There are bad people, but by and large, the covered jurisdictions are in compliance as much as or more than jurisdictions 

who are not covered under the provision. At this day and age there 

is simply no added protection or use that comes from the continuation of Section 5. 

Senator CORNYN. Ms. Landreth, I thought you gave a good sort 

of an example of how different parts of the country perhaps should 

be regarded differently based on geography and history and experience, as opposed to what Congress is especially good at as the onesize-fits-all, but I thought the point you made was an interesting 

one. 

If, as Mr. Coleman says, that there have not been objections 

interposed in Alaska by the Justice Department, can you explain 

the lack of private litigation or other litigation involving the sorts 

of violations that you have alleged? 

Ms. LANDRETH. I am glad that you asked that question, because 

that is what sticks out like a sore thumb to us as well. I have been 

practicing in Alaska for only a few years. There has only been one 

case brought about Section 203 violations. It was settled, so there 

is no written decision. It is only available at the clerk’s office. But 

it is indicative of other situations that have happened. In a situation where almost half the children are born with fetal alcohol 

spectrum disorder, the elders tried to pass a ballot measure to ban 

alcohol in the village, and then the ‘‘young ’uns’’, who didn’t want 

30

them to do that, would translate the ballot for them, conveniently 

telling them to vote against it, and, of course, defeat their own ability to participate in their own democracy. 

And one of the interesting aspects of that—it is unfortunate 

there is no written decision—but we have found, when I tell other 

folks in Alaska this story, other villages have said, that happened 

to us too. Kasigluk, Akiachak, Akiak, all those communities had 

the same issue, and people have not brought enforcement. I 

think— 

Senator CORNYN. Why not? 

Ms. LANDRETH. That is a very good question. I wish that I had 

the answer to that. One part of the answer to that question may 

be that although I won’t claim that our study that we have recently 

done is comprehensive, it is the first of its kind to actually study 

what Alaska is doing versus what it was supposed to have been 

doing. I think this is the first time it has been widely known that 

Alaska has not complied with these aspects of the Act. 

Senator CORNYN. And you say widely known. Is that because of 

the reports that you have recited to us here? 

Ms. LANDRETH. Yes. I believe our 50 or so page report has been 

distributed fairly widely, both within the State Government, to our 

representatives here in Congress, and to communities in rural 

Alaska, who—several of those that I vetted it through to make sure 

I was portraying their communities accurately, had no changes to 

make. 

Senator CORNYN. Thank you. 

I think the presentations have been very helpful to the Committee. Obviously, I am the only one left here, but that is not for 

lack of interest I assure you. The Senators and the Senate, usually 

we have to multi-task and have a lot of conflicting hearings and requirements, including floor activity. 

What I would do is to say thanks to each of you for your testimony. Of course, your written testimony is going to be made a part 

of the record in addition to your oral comments. 

Customarily we leave the record open for a period of time, for 1 

week in this case, for members of the Committee who were not able 

to come to ask written questions, or of those who were able to come 

to followup with written questions. So I would just ask you when 

you get those, if you get those, please respond to those as promptly 

as you can so we can have a complete record for our further consideration. 

Thank you very much, and the hearing is now adjourned. 

[Whereupon, at 11:07 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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